An obvious area of attack by anti-Federalists against the Constitution was the position of the President. The suggestion that the President was like a monarch was an easy way to discredit the position, given the war America had fought to free itself from the English monarchy. Hamilton’s purpose in this paper is to debunk this assertion. He points out that the singular role of President is no more like the English monarchy than other government heads, including the governor of New York and other governors of American States.
In making this argument, Hamilton’s strategy is to examine the key powers of the presidency one by one in comparison to the powers of the English monarch or other governors of American. For anyone interested in what Hamilton has to say, his entire argument is summarised neatly in the final paragraph of the paper, in which he reiterates each of his points in a series of nine binary opposites, comparing the President’s powers with that of the British monarch’s, including two additional comparisons not previously made. The first of these concerns the British monarch’s power over coin and commerce compared to the President’s power, which allows
no rules concerning the commerce or currency of the nation. The second binary opposition not formerly mentioned states:
The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church!
The main points of comparison in the body of the paper are as follows:
Limitation of Term of Office
Hamilton begins his argument with the obvious point, that the President does not have heredity rights to power, and his term is limited to four years, for however many times the people wish to elect him. (This was changed in 1947 by the 22nd Amendment, limiting the President to two terms in office. Only one President, Franklin Roosevelt, served more than two terms.) Therefore, his term of power is in no way like the British monarch’s but is similar to the governor of New York, who has a three-year term.
The President can be impeached, removed from office and tried in a civil court for
treason, bribery, or other high crimes or misdemeanours. In this, the President is legally as responsible as other American State governors, whereas the English monarch has
no constitutional tribunal to which he is amenable.
Power to return bills
The President can return a bill passed by both Houses of Congress for reconsideration. Hamilton admits that the power of the British monarch to annul laws passed by the British parliament has not been employed for
a considerable time, and the abuse of that power could cause agitation if it was to be used. Nevertheless, the power exists. (As an aside, here in Australia the powers of the Governor-General were long thought to be primarily ceremonial. The Governor-General is the representative of the British crown in Australia, since Australia is still a Commonwealth country. Yet in 1975, the Governor-General, Sir John Kerr, sacked the Prime Minister of Australia (effectively using the power of the Crown) and handed control of government to the opposition under Malcolm Fraser, who was to become the next Prime Minister. This is not the same thing as rejecting a bill, but it does demonstrate that what are assumed to be ceremonial positions and dormant powers can, in fact, become very real in times of crisis).
The President’s role as Commander-in-chief of the army and the navy is to be limited to its need in times of crisis. The British monarch has the power to declare war and to raise fleets and armies. (This is still technically true. Margaret Thatcher used royal prerogative to go to war with Argentina in 1982 without consulting Parliament. In America, these powers are conferred to the legislature. This makes the British Monarch’s power more overreaching than the American President’s, in theory. Hamilton points out that the Governors of several States have more extensive powers in relation to State militia than that of the President over the Union forces.
The President’s power to pardon does not include the power to pardon those impeached by Congress, whereas the New York Governor could do so in that State. Hamilton argues that the greater therefore threat lies within States that give their governors the power to pardon those who have been impeached. He uses the hypothetical situation of government ministers, perhaps even the Governor himself, who plan treason but get caught prior to the act being committed. In this instance, the Governor could pardon himself and his accomplices from impeachment, whereas the President could not protect himself or members of his government who engage in an illegal conspiracy and are subsequently impeached.
Power to adjourn the legislature
The President has the power to adjourn the legislature only when there is a disagreement as to when this should be done, acting like an umpire in a dispute. Whereas,
The British monarch may prorogue or even dissolve the Parliament. This was done recently when Prime Minister Boris Johnson asked the Queen to suspend Parliament in what turned out to be a political move to stop debate on Brexit. The judiciary overturned the Queen’s decision, however, and Parliament was resumed. Nevertheless, it was a demonstration of the power Hamilton discusses, and illustrates the difference between the British monarch’s powers and that of the American President.
Power to make treaties
The President makes treaties
with the advice and consent of the Senate, whereas
The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. This is still true. In 1972 the Queen’s powers were used to join Great Britain with the European Union without consulting Parliament until after it had been achieved. However, the monarch’s powers are now normally exercised through the government of the day. Nevertheless, Hamilton’s point is that the monarch of Britain, especially at the end of the 18th century, could act alone in these matters, while the American President must achieve the concurrence of the legislature.
The President, like the English monarch, can receive ambassadors and other ministers, but Hamilton points out that this a largely ceremonial role and a matter of convenience, since it is easier for the President to receive foreign dignitaries than the legislature.
Nominate Ambassadors and government ministers
The President can nominate ambassadors and other public ministers, but his decision must receive the consent of the Senate. The British monarch, however, can not only fill positions, but create new ones. Hamilton further illustrates his point with the Governor of New York. He can not only nominate a candidate for a position, but can also cast a vote in the legislative assembly. Therefore, if the decision over the appointment is divided in the legislature, the Governor can cast his vote to break the deadlock and make the appointment, thereby giving him greater powers within the State than the American President has within the Union.
. . . .
The conclusion that Hamilton draws from these various examples is that the President’s power is in no way like that of the British monarch’s, and he would be pressed to say whether the power of the New York Governor was more or less in his own State than the President’s within the Union.
3 December 2019