Federalist No.76

The Appointing Power Of The Executive

Tuesday, April 1, 1788

Alexander Hamilton


76.1

Hamilton quotes the following extract of the Constitution in full at the beginning of this Federalist paper:

Article II, Section 2, Clauses 2 and 3 of the Constitution:

2 …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.

3: 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.

76.2

The Constitution’s rules governing the appointing power of the executive was clearly on display with the appointment of Brett Kavanagh to the bench of the Supreme Court in 2018. Kavanagh was the subject of an accusation of sexual assault by Christine Blasey Ford concerning a period when they were in high school together. The accusation provoked passionate objections to his nomination and was the subject of hearings in the Senate Judiciary Committee along with a one-week investigation by the FBI. In the end, Kavanagh was appointed. But the real issue relating to his appointment was President Trump’s agenda and the character of his presidency. Trump was already accused of having used underhanded methods to stack the Supreme Court with conservative judges, and Kavanagh’s sexual assault allegations went to the heart of the character of Trump’s administration, since he was also the subject of numerous sexual assault scandals, himself.

76.3

All this is interesting in relation to one assumption made by Hamilton in the Federalist Papers, and repeated in this particular number, that the system of election for the President would likely produce a man of talent and good character: …there would always be great probability of having the place supplied by a man of abilities, at least respectable. For those who oppose Trump, when they criticise his character they are arguing that he does not embody the qualities Hamilton and the other Founding Fathers envisaged appropriate for the role. Trump, has called himself a stable genius and Steve Bannon has defended Trump’s intelligence and political abilities. But the evidence unearthed by the impeachment hearings and Trump’s many other gaffs and terrible policies, at least from the perspective of a non-American unaffiliated with any political group there (and a general feeling I sense from talking to other Australians) – is that the man is unfit for office.

76.4

I start with this long preamble because Hamilton’s Federalist 76 (along with other Federalist Papers) is forced to make certain assumptions about human nature, since any set of rules for a system of government are ultimately subject to the foibles of humanity. Hence, the two assumptions Hamilton is forced to make in this paper are first, the one already stated, that the President might be presumed to be of good character and ability, and second, that as a collective body, the Senate might be presumed to have enough people of good character and independence to oppose a President when necessary.

76.5

This issue of character extends to the character of its [the government’s] administration through the choice of people nominated to fill government positions. Hamilton points out that any nomination can either be done by one man, by an assembly, or by one man with the concurrence of an assembly. The last option is that adopted by the Constitutional Convention. Article II, Section 6 of the Constitution (quoted above) states that the President gets to nominate people for public positions, but the Senate must ratify those choices.

76.6

Hamilton’s argument makes a lot of sense, assuming what he assumes about human nature. If the President is assumed to be of good character, then he is a logical person to make appointments. His appointment will reflect upon his own reputation and therefore he will be careful to investigate the suitability of that person. He will also be able to make the choice without having to bargain with others, and therefore is less liable to be misled by others. And while the Senate might reject his choice, the Senate can never do so in the hope that the President will pick someone else more amenable to its own prejudices, since the choice is always the President’s.

76.7

Hamilton sees dangers in allowing the nomination to fall to the Senate. The nomination would be subject to debate and therefore the eventual choice could be construed as a partisan victory. The nomination may also be the result of bargaining – tit for tat arrangements – that might produce someone more suited to political expedience than a position for which they are appointed.

76.8

At the same time, the Senate’s power to reject a candidate chosen by the President is an important balance. It mitigates the dangers of absolute power. It would also guard against Presidential favouritism, prevent the appointment of unfit characters, of those who might be unduly influenced and controlled by the President, and appointments made for popularity, or appointments for friends or family (again, this has been sidestepped by Trump with appointments made to his daughter and son-in-law). Hamilton believes that the existence of the Senate’s oversight will be enough to ensure the President makes a sober and considered choice, knowing that the Senate’s rejection could reflect upon his own reputation and that of his nominated appointee.

76.9

As for the Senate, Hamilton reasons that it will use its power sparingly, since its rejection cannot influence subsequent nominations by the president, and might have ramifications for the reputations of the President and his nominee.

76.10

Hamilton finishes this paper with his argument about human nature: that in any body there can be trusted to be a range of human nature – that there is a portion of virtue and honor among mankind, and that there will always be enough members in the Senate who will act with integrity, allowing the Senate’s oversight power to be an effective restraint on the choices of the President. Added to this, the constitution guards against the President wielding undue influence over Senate members, since members of Congress are forbidden appointment to other civil offices during their term. They can’t be bribed in other words, which extends to the precaution that their wages cannot be increased during the period for which they are elected to Congress (Article I, Section 6, Clause 2 of the Constitution).

9 December 2019