Federalist #77

The Appointing Power Continued and Other Powers of the Executive Considered  (Hamilton)

Hamilton begins Federalist number 77 by reiterating one of the advantages of cooperation between the Senate and the executive when it comes to appointments. It would bring stability to the administration of government. He says that a change in the president would not immediately cause the occupants of offices to be replaced as would be expected if he were the sole holder of the appointment power. Hamilton believes that if a man had proven himself worthy of the job he had within the government  then president would restrain himself from replacing that person.

Critics suggest that having the Senate and the president share appointment power would give the president an undue influence over the Senate. The president would have an improper influence over the Senate because the Senate would have the power to restrain him. Hamilton says this is absurd. How could the Senate be a confirmed benefit on the president by employing their right to reject the nomination? Sometimes the Senate gratifies him by acquiescing to his choice when public motives might dictate a different choice. The instances when the president would be personally interested in the result would be too few to be affected by the compliances of the Senate with his choice. If influence means restraining the president this must be precisely what the founders intended. The restraint would be salutary, but at the same time it would not destroy a single advantage of the chief executive. The right to nominate would produce all the good without the bad.

In the states, the power of appointment is solely vested in the chief executive. The blame on  a bad nomination would fall directly on the president if the national government were to conduct nominations this way. The way the nomination process is set up the president and the Senate will share the blame for a bad choice. In the states, there is a council of appointment.  They consist of 3 to 5 people of which the governor is always one. The nomination process is done behind closed doors and all the public can know is that the governor claims the right of nomination. They also know that two out of the four men can be too often managed without much difficulty. If some of the members of the Council happen to be of an uncomplaining character  it is relatively easy to rid the council of their opposition by holding the counsel at times that are inconvenient to them. A governor must necessarily have in this delicate and important part of his administration a preference to fill offices with those who are qualified. Whether the nominee's chief merit is their implicit devotion to his will and to the support of the system of personal influence are questions which unfortunately for the community, can only be subjects of speculation and guesswork.

Each member of the Council will have his friends and connections to provide for the desire for mutual gratification, and will lead to the bargaining of votes in bargaining for places. The personnel wishes of one man are easily satisfied, but trying to satisfy a dozen or 20 will lead to a monopoly of all the principal jobs of government. This will lead to an aristocracy or an oligarchy. To avoid the accumulation of officers, there needs to be  frequent change in the persons who were compose the Council. Such a council would be more liable to executive influence than the Senate's because there would be fewer in number and they would act less immediately under the public inspection. Such a council house would be a manipulation of evils springing from favoritism and intrigue in the distribution of public honors. This would lead to a decrease in the stability of the administration of the government and the security against an undue influence of the executive. Such a council has been thought to be an essential amendment in the proposed Constitution.

Hamilton only mentions the suggestion that the house or representatives should be involved in the appointment power. He says he cannot imagine that is likely to gain any traction within the community. A body that fluctuates so much and is it the same time so numerous can never be deemed proper for the exercise of the power of appointment. It's unfitness will become more clear when in half a century it could house 3 to 4 hundred people. All of the advantages of stability to both the executive and the Senate would be defeated by this union and cause delays as well as embarrassing appointments. The example of most of the states in their local constitutions encourages us to dislike the idea.

The remaining powers of the executive is giving information to Congress in the state of the union; recommending to their consideration such measures as he shall judge necessary; convening them or either branch upon extraordinary occasions; adjourning them when they cannot themselves agreed upon a time of adjournment; receiving ambassadors and other public ministers; faithfully executing the laws of the United States; and commissioning all of the officers of the United States.

Besides some concerns about the power of convening either house of the legislature, and receiving ambassadors no objections have been made to this class of powers. In speaking about the power to  being able to bring either house of the legislature together, Hamilton believes, that for the Senate, there is good reason for it. This body has the ability to share the power of treaty making with the executive so it might be necessary to collect them together to ratify such a document and it would be unnecessary and improper to convene the House of Representatives.

Hamilton says that he has now completed a survey of the structure and powers of the executive department. He has endeavored to show all the requisites of energy. The remaining question is: does it also combine the requisites to safety, in the Republican sense – a due dependence on the people, a due responsibility? An answer has been an anticipated in explaining other characteristics, and is satisfactorily deducible from these characteristics. The election of the president once every four years by people chosen by the people for that purpose, and being at all times liable to impeachment, trial, dismissal from office, incapacity to serve in any other, and forfeiting life in a state by subsequent prosecution in the common course of law. These precautions as great as they are not the only ones which the plan of convention has provided for the security of the public. In one of the only instances in which the abuse of the executive authority was materially to be feared, the president of the United States would by that plan be subject to the control of a branch of the legislative body. What more can an enlightened and reasonable people desire?