FEDERALIST No. 77
The Appointing Power Continued and Other Powers of the Executive
Considered
From the Independent Journal.
Wednesday, April 2, 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,
without the ill.][E1] [good of that of appointment, and would in a great
measure avoid its evils.][E1]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
E1. These two alternate endings of this sentence appear in different
editions.