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.