Federalist No.73

In Federalist 70 Hamilton says that America needs an energetic Executive, which he defines as possessing unity … duration … adequate provision for its support … [and] competent powers. These are the ingredients which constitute this energy, or, to put it another way, that give the President the motivation and means by which to carry out his duties.

Federalists 70, 71 and 72 deal with the ingredients of unity and duration for the energetic undertaking of an individual’s role as President. This paper addresses the third and fourth ingredients: adequate provisions for its support and competent powers.

Third Ingredient : Adequate Provision for support

Hamilton’s discussion in the first part of this paper refers to the following section of the Constitution:

Hamilton has already discussed the potential power of the legislative branch of government to erode the powers of the executive in Federalist 71. Hamilton uses the example of remuneration as a means by which the House of Representatives might control a President if the proper balances were not present in the Constitution, and refers to the above clause specifically to make his argument.

Hamilton reasons that by withholding salary the legislature could render him [the President] as obsequious to their will as they might think proper to make him … that a power over a man’s support is a power over his will.

Hamilton points out that the provision in the Constitution means remuneration must be set at the beginning of a President’s term, and because it cannot be altered thereafter by the legislature, it cannot be used as leverage against the President, either by punishment with a reduction in salary, or by corrupting him with promises of an increase in his salary. Added to this, the President cannot be corrupted by others with additional wages, since these are forbidden.

Fourth Ingredient: Competent Powers

The ingredient of competent powers refers, in this paper, to the power of the President to veto legislation. Hamilton discusses two forms of veto, the regular veto which the Presentment Clause clearly outlines as a power of the President, and what has come to be known as the ‘pocket veto’. The sections of the Constitution that refer to this power are reproduced in the box below. The regular veto is most clearly defined of the two in the Presentment Clause (Clause 2):

The regular veto occurs when a President returns a bill to Congress with objections. Nevertheless, Congress can then override the President and make the bill law if it can muster a two-third majority in both houses. A pocket veto is an absolute veto which cannot be overridden. The provision for the ‘pocket veto’ in the Constitution is not as apparent – unless the Congress by their Adjournment prevent its Return, in which Case it shall not be law. It means that the President refuses to sign legislation into law after Congress has adjourned, so that Congress is then unable to overrule the President’s veto through a two-thirds majority vote. In these cases, the bill is dead. This provision was first used by President James Madison, who co-authored these papers.

Hamilton defends the need of the executive for veto power over the legislative branch with two broad justifications. First, the veto power is a defence for the executive against negative laws being passed by the legislative branch that encroach upon the powers of the executive. Second, it is a final protection for the people against the passing of improper laws. Hamilton argues that bad laws might be passed for various reasons: the love of power may sometimes betray it [Congress] into a disposition to encroach upon the rights of other members of the government; a spirit of faction may sometimes pervert its deliberations and the impression of the moment, meaning that bodies of people are sometimes driven by impulses and passions which, upon reflection, are not in their best interests (or in the interests of the American people).

Hamilton acknowledges that the power of veto might also be used to stifle good legislation. But he weighs this against the problem that bad and conflicting laws present, and also considers the benefits of stability in the system of legislation. Hamilton believes that, on the whole, America will be better off by losing a few good laws if it means the general system of legislation is well-considered, stable and serves the people.

Hamilton also addresses the fear that the veto power will be used irresponsibly. He points to the example of the English crown, which has the power of veto, but rarely uses it, and argues that the executive would rarely hazard conflict with the legislature over legislation, unless it was of utmost importance. Hamilton believes this applies to an American president more so, since their term is set at only four years. Implicit in his remark is that a president may either face approbation after office if their powers are used poorly, or more positively, that a President may seek to use executive powers responsibly so that they might be re-elected. Hamilton cites an attack upon the powers of the executive or a case in which the public good was evidently and palpably sacrificed as justifiable instances in which the power of veto might be used by a president.

Hamilton’s final defence of the power of veto is that it is a qualified veto, rather than absolute (But the convention have pursued a mean in this business - that is, the form of veto given the President is a compromise power). This is interesting, because it seems from Hamilton’s discussion that an absolute veto – the ‘pocket veto’ – was not intended, but that it has emerged from the reading of the Presentment clause. However, given that it was first used by Madison, its potential may have been understood from the start. This is where someone with more knowledge than I have would have an advantage. I know, however, that the legality of the ‘pocket veto’ has been challenged several times.

So, Hamilton defends the power of veto on the grounds that the President’s veto can be overturned by a two-thirds vote in Congress. That also means that the veto can be upheld by little over a third of Congress supporting the President, thereby giving dissenting members – those who might have been outvoted when the Bill originally passed each house – the power to force amendments. Hamilton argues that this qualified version of the veto power makes it easier for a President to use, since he must gain support for his objection in the House and Senate, meaning he isn’t wielding a negative power entirely on his own. As to overturning the President’s veto, Hamilton finds it difficult to believe that two thirds of the members of Congress would support improper views.

Hamilton ends this paper with an explanation as to why the State of Massachusetts was used as the model for the presidential veto, and not New York, since New Yorkers are his readers. He explains that in New York, the power of veto was vested in the governor, the chancellor and judges of the Supreme Court. Hamilton explains that the Convention did not follow this model because they wanted the Supreme Court judges to be separate and impartial, so that they might be free to rule on any disputes that arose from the exercise of the President’s power of veto.

6 December 2019