Federalist Paper No. 77
The Appointing Power Continued and Other Powers of the Executive Considered
From the New York Packet.
Friday, April 4, 1788.
HAMILTON
To the People of the State of New York.
IT HAS been mentioned as one of the advantages to be expected from the
co-operation of the Senate, in the business of appointments, that it would contribute to
the stability of the administration. The consent of that body would be necessary to
displace as well as to appoint. A change of the Chief Magistrate, therefore, would not
occasion so violent or so general a revolution in the officers of the government as might
be expected, if he were the sole disposer of offices. Where a man in any station had given
satisfactory evidence of his fitness for it, a new President would be restrained from
attempting a change in favor of a person more agreeable to him, by the apprehension that a
discountenance of the Senate might frustrate the attempt, and bring some degree of
discredit upon himself. Those who can best estimate the value of a steady administration,
will be most disposed to prize a provision which connects the official existence of public
men with the approbation or disapprobation of that body which, from the greater permanency
of its own composition, will in all probability be less subject to inconstancy than any
other member of the government.
To this union of the Senate with the President, in the article of appointments,
it has in some cases been suggested that it would serve to give the President an undue
influence over the Senate, and in others that it would have an opposite tendency, a strong
proof that neither suggestion is true.
To state the first in its proper form, is to refute it. It amounts to this: the
President would have an improper INFLUENCE OVER the Senate, because the Senate would have
the power of RESTRAINING him. This is an absurdity in terms. It cannot admit of a doubt
that the entire power of appointment would enable him much more effectually to establish a
dangerous empire over that body, than a mere power of nomination subject to their control.
Let us take a view of the converse of the proposition: "the Senate would
influence the Executive.'' As I have had occasion to remark in several other instances,
the indistinctness of the objection forbids a precise answer. In what manner is this
influence to be exerted? In relation to what objects? The power of influencing a person,
in the sense in which it is here used, must imply a power of conferring a benefit upon
him. How could the Senate confer a benefit upon the President by the manner of employing
their right of negative upon his nominations? If it be said they might sometimes gratify
him by an acquiescence in a favorite choice, when public motives might dictate a different
conduct, I answer, that the instances in which the President could be personally
interested in the result, would be too few to admit of his being materially affected by
the compliances of the Senate. The POWER which can ORIGINATE the disposition of honors and
emoluments, is more likely to attract than to be attracted by the POWER which can merely
obstruct their course. If by influencing the President be meant RESTRAINING him, this is
precisely what must have been intended. And it has been shown that the restraint would be
salutary, at the same time that it would not be such as to destroy a single advantage to
be looked for from the uncontrolled agency of that Magistrate. The right of nomination
would produce all the good of that of appointment, and would in a great measure avoid its
evils. Upon a comparison of the plan for the appointment of the officers of the proposed
government with that which is established by the constitution of this State, a decided
preference must be given to the former. In that plan the power of nomination is
unequivocally vested in the Executive. And as there would be a necessity for submitting
each nomination to the judgment of an entire branch of the legislature, the circumstances
attending an appointment, from the mode of conducting it, would naturally become matters
of notoriety; and the public would be at no loss to determine what part had been performed
by the different actors. The blame of a bad nomination would fall upon the President
singly and absolutely. The censure of rejecting a good one would lie entirely at the door
of the Senate; aggravated by the consideration of their having counteracted the good
intentions of the Executive. If an ill appointment should be made, the Executive for
nominating, and the Senate for approving, would participate, though in different degrees,
in the opprobrium and disgrace.
The reverse of all this characterizes the manner of appointment in this State.
The council of appointment consists of from three to five persons, of whom the governor is
always one. This small body, shut up in a private apartment, impenetrable to the public
eye, proceed to the execution of the trust committed to them. It is known that the
governor claims the right of nomination, upon the strength of some ambiguous expressions
in the constitution; but it is not known to what extent, or in what manner he exercises
it; nor upon what occasions he is contradicted or opposed. The censure of a bad
appointment, on account of the uncertainty of its author, and for want of a determinate
object, has neither poignancy nor duration. And while an unbounded field for cabal and
intrigue lies open, all idea of responsibility is lost. The most that the public can know,
is that the governor claims the right of nomination; that TWO out of the inconsiderable
number of FOUR men can too often be managed without much difficulty; that if some of the
members of a particular council should happen to be of an uncomplying character, it is
frequently not impossible to get rid of their opposition by regulating the times of
meeting in such a manner as to render their attendance inconvenient; and that from
whatever cause it may proceed, a great number of very improper appointments are from time
to time made. Whether a governor of this State avails himself of the ascendant he must
necessarily have, in this delicate and important part of the administration, to prefer to
offices men who are best qualified for them, or whether he prostitutes that advantage to
the advancement of persons whose chief merit is their implicit devotion to his will, and
to the support of a despicable and dangerous system of personal influence, are questions
which, unfortunately for the community, can only be the subjects of speculation and
conjecture.
Every mere council of appointment, however constituted, will be a conclave, in
which cabal and intrigue will have their full scope. Their number, without an
unwarrantable increase of expense, cannot be large enough to preclude a facility of
combination. And as each member will have his friends and connections to provide for, the
desire of mutual gratification will beget a scandalous bartering of votes and bargaining
for places. The private attachments of one man might easily be satisfied; but to satisfy
the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the
principal employments of the government in a few families, and would lead more directly to
an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an
accumulation of offices, there was to be a frequent change in the persons who were to
compose the council, this would involve the mischiefs of a mutable administration in their
full extent. Such a council would also be more liable to executive influence than the
Senate, because they would be fewer in number, and would act less immediately under the
public inspection. Such a council, in fine, as a substitute for the plan of the
convention, would be productive of an increase of expense, a multiplication of the evils
which spring from favoritism and intrigue in the distribution of public honors, a decrease
of stability in the administration of the government, and a diminution of the security
against an undue influence of the Executive. And yet such a council has been warmly
contended for as an essential amendment in the proposed Constitution.
I could not with propriety conclude my observations on the subject of
appointments without taking notice of a scheme for which there have appeared some, though
but few advocates; I mean that of uniting the House of Representatives in the power of
making them. I shall, however, do little more than mention it, as I cannot imagine that it
is likely to gain the countenance of any considerable part of the community. A body so
fluctuating and at the same time so numerous, can never be deemed proper for the exercise
of that power. Its unfitness will appear manifest to all, when it is recollected that in
half a century it may consist of three or four hundred persons. All the advantages of the
stability, both of the Executive and of the Senate, would be defeated by this union, and
infinite delays and embarrassments would be occasioned. The example of most of the States
in their local constitutions encourages us to reprobate the idea.
The only remaining powers of the Executive are comprehended in giving
information to Congress of the state of the Union; in recommending to their consideration
such measures as he shall judge expedient; in convening them, or either branch, upon
extraordinary occasions; in adjourning them when they cannot themselves agree upon the
time of adjournment; in receiving ambassadors and other public ministers; in faithfully
executing the laws; and in commissioning all the officers of the United States.
Except some cavils about the power of convening EITHER house of the
legislature, and that of receiving ambassadors, no objection has been made to this class
of authorities; nor could they possibly admit of any. It required, indeed, an insatiable
avidity for censure to invent exceptions to the parts which have been excepted to. In
regard to the power of convening either house of the legislature, I shall barely remark,
that in respect to the Senate at least, we can readily discover a good reason for it. AS
this body has a concurrent power with the Executive in the article of treaties, it might
often be necessary to call it together with a view to this object, when it would be
unnecessary and improper to convene the House of Representatives. As to the reception of
ambassadors, what I have said in a former paper will furnish a sufficient answer.
We have now completed a survey of the structure and powers of the executive
department, which, I have endeavored to show, combines, as far as republican principles
will admit, all the requisites to energy. The remaining inquiry is: Does it also combine
the requisites to safety, in a republican sense, a due dependence on the people, a due
responsibility? The answer to this question has been anticipated in the investigation of
its other characteristics, and is satisfactorily deducible from these circumstances; from
the election of the President once in four years by persons immediately chosen by the
people for that purpose; and from his being at all times liable to impeachment, trial,
dismission from office, incapacity to serve in any other, and to forfeiture of life and
estate by subsequent prosecution in the common course of law. But these precautions, great
as they are, are not the only ones which the plan of the convention has provided in favor
of the public security. In the only instances in which the abuse of the executive
authority was materially to be feared, the Chief Magistrate of the United States would, by
that plan, be subjected to the control of a branch of the legislative body. What more
could be desired by an enlightened and reasonable people?
PUBLIUS.
(Continue to Page 78)
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