FEDERALIST 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.

PUBLIUS.