Federalist No.67

The Executive Department

Tuesday, March 11, 1788

Alexander Hamilton


Article II, Section 2, Clause 2 of the Constitution:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Article II, Section 2, Clause 3 of the Constitution:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

67.1

This Paper refers specifically to the above two clauses from Section II of the Constitution. Hamilton directly quotes the extracts in blue.

67.2

The paper is a defence of the role of the president in the constitution for the purposes of demonstrating the deliberate attempts to undermine the constitution through misinformation. Hamilton spends about a third of the paper outlining the political campaign against the constitution over this aspect, saying that detractors have given false information and created an unfair comparison between the monarch of England and the position of president.

67.3

Hamilton refers to Article II, Section 2 of the constitution to give an example of one way the president’s powers are misrepresented. Hamilton says that a writer, from what Hamilton believes to be a deliberate misreading of this section, has alleged that the constitution gives the president the power of filling casual vacancies in the Senate. From the start, Hamilton points out that the appointment of Senate members is covered by Article I, Section 3, Clause 1: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof …, yet, notwithstanding this clear fact, the pretended power of the President to fill vacancies in the Senate has been deduced by the writer.

67.4

Hamilton makes three arguments against this.

67.5

First, the Section clearly shows that, ordinarily, appointments are to be made jointly by the Senate and president (He shall have Power, by and with the Advice and Consent of the Senate ). When the Senate is in recess, clause 3 allows the president to make temporary appointments on his own.

67.6

Second, clause 3 supplements clause 2, which specifically excludes Senatorial positions being appointed by the president. This conclusion is further logically supported by Hamilton’s final point, which is that clause 3 refers to periods in which the Senate is in recess, which would negate the need for the president to fill vacancies temporarily in that body. That would only make sense if the constitution referred to the state legislatures, which appointed Senate members, being in recess.

67.7

In short, it makes no sense to say that the president has the power to appoint Senate members, temporarily or otherwise. The only appointments the president can make on his own while the Senate is in recess are temporary appointments for Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.

67.8

The meaning is unequivocal, and by this example Hamilton is able to demonstrate the vexatious claims made against the constitution, in particular against the office of the president.

27 November 2019