FEDERALIST No. 76
The Appointing Power of the Executive
From the New York Packet.
Tuesday, April 1, 1788.HAMILTON
To the People of the State of New York:
THE President is "to nominate, and, by and with the advice and consent
of the Senate, to appoint ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other officers of the
United States whose appointments are not otherwise provided for in the
Constitution. But the Congress may by law vest the appointment of such
inferior officers as they think proper, in the President alone, or in
the courts of law, or in the heads of departments. The President shall
have power to fill up all vacancies which may happen during the recess
of the Senate, by granting commissions which shall expire at the end of
their next session."It has been observed in a former paper, that "the true test of a good
government is its aptitude and tendency to produce a good
administration." If the justness of this observation be admitted, the
mode of appointing the officers of the United States contained in the
foregoing clauses, must, when examined, be allowed to be entitled to
particular commendation. It is not easy to conceive a plan better
calculated than this to promote a judicious choice of men for filling
the offices of the Union; and it will not need proof, that on this point
must essentially depend the character of its administration.It will be agreed on all hands, that the power of appointment, in
ordinary cases, ought to be modified in one of three ways. It ought
either to be vested in a single man, or in a select assembly of a
moderate number; or in a single man, with the concurrence of such an
assembly. The exercise of it by the people at large will be readily
admitted to be impracticable; as waiving every other consideration, it
would leave them little time to do anything else. When, therefore,
mention is made in the subsequent reasonings of an assembly or body of
men, what is said must be understood to relate to a select body or
assembly, of the description already given. The people collectively,
from their number and from their dispersed situation, cannot be
regulated in their movements by that systematic spirit of cabal and
intrigue, which will be urged as the chief objections to reposing the
power in question in a body of men.Those who have themselves reflected upon the subject, or who have
attended to the observations made in other parts of these papers, in
relation to the appointment of the President, will, I presume, agree to
the position, that there would always be great probability of having the
place supplied by a man of abilities, at least respectable. Premising
this, I proceed to lay it down as a rule, that one man of discernment is
better fitted to analyze and estimate the peculiar qualities adapted to
particular offices, than a body of men of equal or perhaps even of
superior discernment.The sole and undivided responsibility of one man will naturally beget a
livelier sense of duty and a more exact regard to reputation. He will,
on this account, feel himself under stronger obligations, and more
interested to investigate with care the qualities requisite to the
stations to be filled, and to prefer with impartiality the persons who
may have the fairest pretensions to them. He will have fewer personal
attachments to gratify, than a body of men who may each be supposed to
have an equal number; and will be so much the less liable to be misled
by the sentiments of friendship and of affection. A single well-directed
man, by a single understanding, cannot be distracted and warped by that
diversity of views, feelings, and interests, which frequently distract
and warp the resolutions of a collective body. There is nothing so apt
to agitate the passions of mankind as personal considerations whether
they relate to ourselves or to others, who are to be the objects of our
choice or preference. Hence, in every exercise of the power of
appointing to offices, by an assembly of men, we must expect to see a
full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are
felt by those who compose the assembly. The choice which may at any time
happen to be made under such circumstances, will of course be the result
either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit of
the candidate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suffrages of the party, will
be more considered than those which fit the person for the station. In
the last, the coalition will commonly turn upon some interested
equivalent: "Give us the man we wish for this office, and you shall have
the one you wish for that." This will be the usual condition of the
bargain. And it will rarely happen that the advancement of the public
service will be the primary object either of party victories or of party
negotiations.The truth of the principles here advanced seems to have been felt by the
most intelligent of those who have found fault with the provision made,
in this respect, by the convention. They contend that the President
ought solely to have been authorized to make the appointments under the
federal government. But it is easy to show, that every advantage to be
expected from such an arrangement would, in substance, be derived from
the power of nomination, which is proposed to be conferred upon him;
while several disadvantages which might attend the absolute power of
appointment in the hands of that officer would be avoided. In the act of
nomination, his judgment alone would be exercised; and as it would be
his sole duty to point out the man who, with the approbation of the
Senate, should fill an office, his responsibility would be as complete
as if he were to make the final appointment. There can, in this view, be
no difference between nominating and appointing. The same motives which
would influence a proper discharge of his duty in one case, would exist
in the other. And as no man could be appointed but on his previous
nomination, every man who might be appointed would be, in fact, his
choice.But might not his nomination be overruled? I grant it might, yet this
could only be to make place for another nomination by himself. The
person ultimately appointed must be the object of his preference, though
perhaps not in the first degree. It is also not very probable that his
nomination would often be overruled. The Senate could not be tempted, by
the preference they might feel to another, to reject the one proposed;
because they could not assure themselves, that the person they might
wish would be brought forward by a second or by any subsequent
nomination. They could not even be certain, that a future nomination
would present a candidate in any degree more acceptable to them; and as
their dissent might cast a kind of stigma upon the individual rejected,
and might have the appearance of a reflection upon the judgment of the
chief magistrate, it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the
refusal.To what purpose then require the co-operation of the Senate? I answer,
that the necessity of their concurrence would have a powerful, though,
in general, a silent operation. It would be an excellent check upon a
spirit of favoritism in the President, and would tend greatly to prevent
the appointment of unfit characters from State prejudice, from family
connection, from personal attachment, or from a view to popularity. In
addition to this, it would be an efficacious source of stability in the
administration.It will readily be comprehended, that a man who had himself the sole
disposition of offices, would be governed much more by his private
inclinations and interests, than when he was bound to submit the
propriety of his choice to the discussion and determination of a
different and independent body, and that body an entier branch of the
legislature. The possibility of rejection would be a strong motive to
care in proposing. The danger to his own reputation, and, in the case of
an elective magistrate, to his political existence, from betraying a
spirit of favoritism, or an unbecoming pursuit of popularity, to the
observation of a body whose opinion would have great weight in forming
that of the public, could not fail to operate as a barrier to the one
and to the other. He would be both ashamed and afraid to bring forward,
for the most distinguished or lucrative stations, candidates who had no
other merit than that of coming from the same State to which he
particularly belonged, or of being in some way or other personally
allied to him, or of possessing the necessary insignificance and pliancy
to render them the obsequious instruments of his pleasure.To this reasoning it has been objected that the President, by the
influence of the power of nomination, may secure the complaisance of the
Senate to his views. This supposition of universal venalty in human
nature is little less an error in political reasoning, than the
supposition of universal rectitude. The institution of delegated power
implies, that there is a portion of virtue and honor among mankind,
which may be a reasonable foundation of confidence; and experience
justifies the theory. It has been found to exist in the most corrupt
periods of the most corrupt governments. The venalty of the British
House of Commons has been long a topic of accusation against that body,
in the country to which they belong as well as in this; and it cannot be
doubted that the charge is, to a considerable extent, well founded. But
it is as little to be doubted, that there is always a large proportion
of the body, which consists of independent and public-spirited men, who
have an influential weight in the councils of the nation. Hence it is
(the present reign not excepted) that the sense of that body is often
seen to control the inclinations of the monarch, both with regard to men
and to measures. Though it might therefore be allowable to suppose that
the Executive might occasionally influence some individuals in the
Senate, yet the supposition, that he could in general purchase the
integrity of the whole body, would be forced and improbable. A man
disposed to view human nature as it is, without either flattering its
virtues or exaggerating its vices, will see sufficient ground of
confidence in the probity of the Senate, to rest satisfied, not only
that it will be impracticable to the Executive to corrupt or seduce a
majority of its members, but that the necessity of its co-operation, in
the business of appointments, will be a considerable and salutary
restraint upon the conduct of that magistrate. Nor is the integrity of
the Senate the only reliance. The Constitution has provided some
important guards against the danger of executive influence upon the
legislative body: it declares that "No senator or representative shall
during the time for which he was elected, be appointed to any civil
office under the United States, which shall have been created, or the
emoluments whereof shall have been increased, during such time; and no
person, holding any office under the United States, shall be a member of
either house during his continuance in office."PUBLIUS