Federalist No.77

The Appointing Power Continued And Other Powers Of The Executive Considered

Wednesday, April 2, 1788

Alexander Hamilton


Hamilton continues his discussion about the President’s power to nominate for civil positions and the Senate’s power either to ratify or reject the President’s nomination. The two issues related to this that are the focus of Hamilton’s attention in this paper are that of stability and influence.


Hamilton argues that the process of nomination offers a stabilizing force for the government, since the President must not only seek the approval of the Senate for nominations, but must also seek its approval to remove those appointed to their roles. This is particularly important in the case of a new President dealing with his predecessor’s choices. A new President cannot simply remove people from their positions at will in the hope that they might appoint someone more amenable to themselves. Given that tenure in the Senate is longer and the Senate body is replaced only by a third every two years, it is itself a more stable body than the executive, and can offer government a stabilizing role, particularly in the change of administrations.


Hamilton next spends the majority of the remainder of this paper considering the question of influence: whether in the matter of the articles of appointment the President might be overly influenced by the Senate, or the Senate by the President. Hamilton refutes both suggestions. He refutes the first by ridiculing the illogical nature of the proposition: the President would have an improper influence over the Senate, because the Senate would have the power of restraining him.


Hamilton questions the second proposition with more deliberation. His first response is to suggest the vagueness of the assertion: what form of influence would the Senate wield? He next suggests that influence often flows from benefits conferred, but the Senate has no means to offer the President benefit, except that the President might be personally invested in the nomination for appointment he makes. Hamilton reasons that the only accurate criticism one might make is that the Senate has the power to obstruct the President’s choice, but Hamilton argues the Senate is unlikely to abuse that power, since not only are the President’s nominations a matter of public knowledge, but so too is the Senate’s vote upon that nomination. If the President nominates a bad candidate, the blame for that falls upon him alone. If the Senate rejects a good appointment, then the Senate will be liable to public censure, not the President.


Hamilton draws this point out by comparing the new Constitution to the nomination process in the State of New York. The governor may claim the right to nominate, but he also sits upon a council that ratifies the nomination. Hamilton argues that this is a less transparent system. It is harder to apportion blame for poor decisions and the public cannot be fully sure why someone has been appointed. Hamilton rejects the State’s model for appointments as being subject to nepotism, poor decisions and open to personal influence. In fact, he goes so far as to say that there is a danger in such a system that small groups, cliques or families will come to dominate powerful appointments, and through a system of attachment and favours, there is the risk it would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived.


An attempt to ameliorate these problems by frequently changing the people who comprise the council would potentially cause other problems. It would increase public expense, continue to encourage favouritism and lead to greater instability. Added to this, it would increase the potential that the council would fall under the influence of the executive more readily.


Hamilton next turns briefly to the suggestion that the House of Representatives might play a role in appointments. He argues against this on the basis of numbers and the shorter tenure of House representatives. Hamilton says that the House might consist of three of four hundred persons within half a century, and this would be too greater number to manage, since decision making would be more difficult and it would undermine government stability.


Hamilton concludes his discussion of executive powers with a few less-contested powers: the state of the Union address to Congress; adjourning Congress when it cannot come to a decision concerning adjournment itself; receiving ambassadors; executing laws.


Hamilton defends the President’s power to convene the Senate, since his powers overlap with the Senate – for instance, the making of treaties – he may have to call the Senate from time to time.


Hamilton finishes with a summary of the points he has made concerning the requisites to safety. That is, the measures in the Constitution that have been designed to ensure that the President acts within the bounds of the Constitution and laws. They are, as have been previously discussed:

10 December 2019