The Powers of the President

The third element that gives the executive its vigor is a secure provision for its support. Without proper attention to this, the separation of the executive from the legislature would be merely nominal and empty. If the legislature held discretionary power over the Chief Magistrate’s salary and other pay, it could make him as servile to its will as it pleased. In most cases it could either starve him into submission or tempt him with bounties, and so induce him to surrender his judgment to its inclinations.

Taken to their full extent, these words say more than I intend. There are men whom no hardship could distress and no reward could win away from their duty; but such stern virtue grows in few soils, and in general a power over a man’s support is a power over his will. If so plain a truth needed confirmation by facts, examples would not be lacking, even in this country, of the Executive being intimidated or seduced by the threats or enticements contained in the legislature’s control over money.

For that reason, the careful attention the proposed Constitution gives this subject can hardly be praised too highly. It provides that the President shall receive at stated times a compensation that may neither be increased nor diminished during the term for which he was elected, and that he shall receive no other emolument from the United States or any of them during that period. No better provision could be imagined. On appointing a President, the legislature must declare, once and for all, what his compensation will be for his term; having done so, it can neither raise nor lower it until a new term begins under a new election.

So the legislature can neither weaken his resolve by working on his needs nor corrupt his integrity by appealing to his greed. Neither the Union nor any of its members may give, nor may he receive, any pay other than what the first act fixed. He can therefore have no financial inducement to renounce or desert the independence the Constitution intends for him.

The last of the listed requirements for energy in the executive is adequate powers. Consider, then, the powers proposed to be vested in the President. The first to come into view is the President’s qualified negative on the acts and resolutions of the two houses of the legislature: his power to return any bill with objections, preventing it from becoming law unless two thirds of each house afterward approve it.

The legislature’s tendency to intrude on the rights of the other departments, and to absorb their powers, has already been raised and repeated; the insufficiency of merely drawing the boundaries on parchment has also been noted; and the need to arm each department with constitutional means of self-defense has been inferred and proved. From these clear and undeniable principles follows the propriety of giving the Executive a negative, whether absolute or qualified, over the acts of the legislative branches. Without one or the other, the Executive would be wholly unable to defend himself against the encroachments of the legislature.

He might be gradually stripped of his authority by a series of resolutions, or destroyed by a single vote; and by either route the legislative and executive powers might soon be blended in the same hands. Even if the legislature had never shown any tendency to invade the Executive’s rights, sound reasoning and theoretical fitness would themselves teach us that one branch ought not to be left at the mercy of the other, but should hold a constitutional and effective power of self-defense.

But this power has a further use. It not only shields the Executive; it also adds security against the passage of improper laws. It sets a wholesome check on the legislature, designed to guard the community against the effects of faction, haste, or any impulse hostile to the public good that may happen to sway a majority of that body.

The propriety of a negative has sometimes been opposed by the observation that we should not presume a single man possesses more virtue and wisdom than a number of men, and that without such a presumption it would be wrong to give the executive magistrate any control over the legislature. But on examination this objection proves more plausible than sound. The propriety of the power does not rest on supposing the Executive wiser or more virtuous, but on supposing that the legislature will not be infallible: that the love of power may sometimes tempt it to encroach on the rights of others, that a spirit of faction may sometimes pervert its deliberations, and that the impressions of a moment may sometimes hurry it into measures it would condemn on more mature reflection.

The primary reason for granting the Executive this power is to let him defend himself; the secondary reason is to improve the community’s odds against the passage of bad laws through haste, inattention, or design. The more often a measure is examined, and the more varied the situations of those who examine it, the smaller the danger of errors that flow from too little deliberation or of missteps born from some shared passion or interest. It is far less likely that bad motives would infect every part of the government at the same moment, on the same matter, than that they would in turn govern and mislead each part separately.

It may be said that the power to prevent bad laws also includes the power to prevent good ones, and could serve the one end as readily as the other. But this objection will carry little weight with those who can rightly weigh the harm of the inconstancy and changeability in the laws, which is the greatest blemish in the character and disposition of our governments. They will regard every institution meant to restrain excessive lawmaking, and to keep things as they are at a given moment, as much more likely to do good than harm, because it favors greater stability in legislation. The injury from defeating a few good laws will be amply repaid by the advantage of preventing a number of bad ones.

Nor is that all. The superior weight and influence of the legislature in a free government, and the risk to the Executive in any trial of strength against it, give a satisfactory assurance that the negative would generally be used with great caution; indeed, there would more often be grounds to charge him with timidity than with rashness in using it. A king of Great Britain, with all his sovereign attributes and the influence he draws from a thousand sources, would today hesitate to put a negative on the joint resolutions of the two houses of Parliament.

He would instead use every resource of that influence to strangle a measure he disliked while it was still on its way to the throne, so as to avoid the dilemma of either letting it take effect or risking the nation’s displeasure by opposing the sense of the legislature. Nor is it likely he would finally venture to exercise his prerogative except in a case of plain propriety or extreme necessity. Every well-informed man in that kingdom will grant the justness of this remark; a very long time has passed since the crown last used its negative.

If a magistrate as powerful and well-fortified as a British monarch would hesitate to use this power, how much greater caution may reasonably be expected from a President of the United States, clothed for the brief term of four years with the executive authority of a wholly and purely republican government? Plainly there would be greater danger of his failing to use the power when needed than of his using it too often or too far.

Indeed, an argument against the power’s usefulness has been drawn from this very point. It has been called a power odious in appearance and useless in practice. But it does not follow that because it might rarely be used, it would never be used. In the case it is chiefly meant for, an immediate attack on the Executive’s constitutional rights, or in a case where the public good is clearly and plainly sacrificed, a man of tolerable firmness would use his constitutional means of defense and would heed the calls of duty and responsibility.

In the first case, his resolve would be stirred by his immediate interest in the powers of his office; in the second, by the likelihood that his constituents would approve, for though they would naturally lean toward the legislature in a doubtful case, they would hardly let that partiality deceive them in a very plain one. I speak here of a magistrate with only an ordinary share of firmness; there are men who, in any circumstances, will have the courage to do their duty at every hazard.

But the convention has taken a middle course here, one that both eases the Executive’s use of this power and makes its effect depend on the judgment of a considerable part of the legislature. Instead of an absolute negative, it proposes to give the Executive the qualified negative already described, a power that would be used far more readily than the other. A man who might fear to defeat a law by his single VETO might not hesitate to return it for reconsideration, where it can finally be rejected only if more than one third of each house agrees that his objections fall short.

He would be encouraged by the thought that, if his opposition prevailed, it would join a very respectable share of the legislature to him, whose weight would support the propriety of his conduct in public opinion. A direct and flat negative has something harsher in its appearance, and more likely to irritate, than the mere offering of reasoned objections to be approved or rejected by those they are addressed to. The less likely it is to offend, the more likely it is to be used; and for that very reason it may prove more effective in practice.

It is to be hoped that improper aims will not often govern so large a share as two thirds of both branches at once, and this in the face of the Executive’s counterweight. At any rate it is far less likely that this would happen than that such aims would taint the resolutions of a bare majority. A power of this kind in the Executive will often work in a silent and unnoticed, though forcible, way: when men engaged in unjustifiable schemes know that obstruction may come from a quarter they cannot control, they will often be held back by the mere fear of opposition from what they would otherwise rush eagerly into.

As noted elsewhere, this qualified negative is in this State vested in a council made up of the governor together with the chancellor and the judges of the Supreme Court, or any two of them. It has been freely used on a variety of occasions, often with success, and its usefulness has become so plain that some who violently opposed it while the State constitution was being framed have, from experience, become its declared admirers.

I have remarked elsewhere that in shaping this part of their plan the convention departed from the model of this State’s constitution in favor of that of Massachusetts. Two strong reasons can be imagined for the preference. One is that the judges, who are to interpret the law, might gain an improper bias from having given a prior opinion in a revising role. The other is that, by being often associated with the Executive, they might be drawn too far into that magistrate’s political views, and so a dangerous combination might gradually be cemented between the executive and judicial departments. The judges cannot be kept too distinct from any occupation other than expounding the laws, and it is especially dangerous to put them where they might be corrupted or influenced by the Executive.

The President is to be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States. The fitness of this provision is plain in itself, and it matches the general practice of the State constitutions; little needs to be said to defend it. Even those States that have, in other matters, paired their chief magistrate with a council have for the most part concentrated military authority in him alone. Of all the concerns of government, the conduct of war most particularly demands the qualities that mark the exercise of power by a single hand. To direct a war is to direct the common strength, and the power of directing and employing that common strength is a usual and essential part of executive authority.

The President may also require the written opinion of the principal officer in each of the executive departments on any subject relating to the duties of their respective offices. This provision is a mere redundancy in the plan, since the right it grants would follow of itself from the office.

He is further authorized to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Humanity and good policy agree that the merciful power of pardoning should be hindered as little as possible. The criminal law of every country carries so much necessary severity that, without an easy path to exceptions in favor of unfortunate guilt, justice would take on a face too bloody and cruel. Since the sense of responsibility is always strongest when it is undivided, we may infer that a single man would be the most ready to weigh the reasons that might call for softening the rigor of the law, and the least likely to yield to considerations meant to shield a person who truly deserves its punishment.

The thought that the fate of a fellow human depended on his decision alone would naturally inspire care and scruple; and the fear of being accused of weakness or collusion would produce equal caution, though of a different sort. A body of men, by contrast, draws confidence from its numbers: its members might encourage one another in an act of stubbornness, and might feel less exposed to suspicion or censure for a foolish or showy leniency. On these grounds, one man appears a better dispenser of the government’s mercy than a group of men.

The wisdom of placing the pardoning power in the President has, if I am not mistaken, been disputed only in the case of treason. Here it has been urged that a pardon ought to depend on the consent of one or both branches of the legislature. I will not deny that there are strong reasons for requiring, in this particular case, the agreement of that body or some part of it. Since treason is a crime aimed at the very existence of the society, then once the laws have fixed the offender’s guilt, there is a certain fitness in referring the question of mercy to the legislature’s judgment, the more so because we cannot wholly rule out the possibility that the Chief Magistrate himself was involved in the plot.

But there are also strong objections to such a plan. It cannot be doubted that a single man of prudence and good sense is better suited, at delicate moments, to weigh the reasons for and against remitting a punishment than any numerous body could be. It deserves particular notice that treason will often be tied to wider seditions that draw in a large part of the community, as lately happened in Massachusetts. In every such case, we might expect the representatives of the people to be tainted by the same spirit that gave rise to the offense. When parties were fairly evenly matched, the quiet sympathy of the condemned person’s friends and supporters, using the good nature and weakness of others, might often grant impunity where the deterrence of an example was needed. On the other hand, when the sedition sprang from causes that had inflamed the resentment of the larger party, that party might prove obstinate and unyielding just when policy called for forbearance and mercy.

But the chief argument for lodging the pardoning power in the Chief Magistrate in this case is this: in seasons of insurrection or rebellion there are often critical moments when a well-timed offer of pardon to the insurgents may restore the peace of the commonwealth, a chance that, if allowed to pass, can never afterward be recalled. The slow process of summoning the legislature, or one of its branches, to approve such a measure would frequently let that golden opportunity slip away. The loss of a week, a day, or even an hour may sometimes prove fatal.

It might be suggested that, to meet such emergencies, a discretionary power could be granted to the President by law. To this I answer, first, that it is doubtful whether, under a limited Constitution, such a power could be delegated by statute; and second, that it would generally be unwise to take any step in advance that holds out the prospect of impunity. A measure of this kind, outside the usual course, would likely be read as a sign of timidity or weakness, and would tend to embolden the guilty.

The President is to have power, “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.” This provision has been attacked from several directions and with real heat, yet I count it among the best-arranged and least objectionable parts of the plan. One objection rests on the familiar complaint about mixing powers: some hold that the President alone should make treaties, others that the power should have rested with the Senate alone. A second objection points to the small number of persons who can make a treaty; here, part of the critics would have brought in the House of Representatives, while another part would simply have required two thirds of all senators rather than two thirds of those present. Since a previous paper should already have shown this part of the plan in a favorable light to a discerning reader, I add only some supplementary remarks aimed at the objections just stated.

On the mixing of powers I rely on the explanations given elsewhere of the rule that grounds the objection, and I treat it as settled that joining the Executive with the Senate in treaties violates no such rule. I go further: the particular nature of the treaty power makes that union especially fitting. Though several writers on government classify the power as executive, that placement is arbitrary; examine how it operates and it partakes more of the legislative than the executive character, while not falling strictly within either definition. The essence of legislative authority is to enact laws, to prescribe rules for the society; the execution of those laws and the use of the common strength, whether for that purpose or for the common defense, seem to make up the whole work of the executive magistrate. The treaty power is plainly neither of these. It does not execute existing laws, does not enact new ones, and still less exerts the common strength. Its objects are contracts with foreign nations, which carry the force of law but draw it from the obligations of good faith; they are not rules a sovereign prescribes to a subject, but agreements between sovereign and sovereign. The power therefore forms a distinct department, belonging properly to neither branch. The qualities required for managing foreign negotiations mark the Executive as the fittest agent in such dealings, while the vast importance of the trust, and the operation of treaties as laws, argue strongly for including the whole or part of the legislative body in making them.

However proper or safe it may be in governments where the executive is a hereditary monarch to entrust him with the entire treaty power, it would be utterly unsafe and improper to grant that power to an elected magistrate serving four years. It has rightly been observed that a hereditary monarch, though often an oppressor of his people, holds too large a stake in the government to be in much danger of corruption by foreign powers. But a man raised from private station to chief magistrate, of moderate or slender fortune, and looking ahead to the not-distant time when he must likely return to private life, might at times feel temptations to sacrifice his duty to his interest that only superlative virtue could resist. An avaricious man might be tempted to betray the state for wealth; an ambitious one might make his own advancement, with a foreign power's aid, the price of his treachery to his constituents. The record of human conduct does not support so exalted an opinion of human virtue as would make it wise to commit interests as delicate and weighty as a nation's dealings with the rest of the world to the sole disposal of a magistrate placed and circumstanced as a President would be.

To have entrusted the treaty power to the Senate alone would have surrendered the benefit of the President's constitutional role in foreign negotiations. The Senate could have chosen to employ him in that capacity, but could equally have chosen not to, and pique or intrigue might have produced the latter. Beyond this, a mere agent of the Senate could not command the confidence and respect of foreign powers that the nation's constitutional representative would, and so could not act with equal weight or effect. The Union would lose a real advantage in managing its external affairs, and the people would lose the added security that comes from the Executive's cooperation. Though it would be imprudent to trust him alone with so important a charge, his participation would clearly add much to the safety of the society. It must indeed be clear, almost to demonstration, that the joint possession of the power by President and Senate offers a greater prospect of security than its separate possession by either; and whoever has weighed the circumstances that must attend a President's selection will be satisfied that the office will always stand a fair chance of being filled by men whose characters render their concurrence in treaties especially desirable, both for wisdom and for integrity.

The same remarks made in an earlier paper apply with conclusive force against admitting the House of Representatives to a share in making treaties. The fluctuating membership of that body, and its growing size as the country expands, make it unlikely to hold the qualities such a trust demands. Accurate and comprehensive knowledge of foreign politics, a steady and systematic adherence to the same views, a fine and uniform sensibility to the national character, and decision, secrecy, and dispatch are incompatible with so variable and numerous a body. The very complication of requiring so many different bodies to concur would itself be a solid objection. The more frequent calls upon the House, and the greater length of time it would often have to remain assembled to give its sanction at the successive stages of a treaty, would bring such inconvenience and expense as alone ought to condemn the proposal.

The last objection to be considered would require two thirds of all the senators rather than two thirds of those present. It has already been shown that any rule requiring more than a majority of a body for its resolutions tends directly to embarrass the operations of government, and indirectly to subject the will of the majority to that of the minority. This alone seems enough to settle that the convention went as far in securing the advantage of numbers in treaty-making as could be reconciled with either the energy of the public councils or a reasonable regard for the major sense of the community. Requiring two thirds of the whole number would, in many cases, amount in practice to a need for unanimity because some members would be absent; and the history of every political establishment governed by that principle is a history of impotence, perplexity, and disorder. Proofs could be drawn from the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home make foreign precedents unnecessary.

Requiring a fixed proportion of the whole body would probably not serve the advantages of a numerous agency any better than requiring a proportion of the members present. The first, by fixing a set number as always necessary for a decision, weakens the motive to attend punctually; the second, by making the body's capacity depend on a proportion that shifts with the presence or absence of a single member, has the opposite effect. By encouraging punctuality it tends to keep the body full, so its decisions would likely be made by as great a number as under the other rule, with far fewer occasions for delay. It should not be forgotten that under the present Confederation two members may, and usually do, represent a State, so that Congress, which now holds all the powers of the Union, rarely contains more persons than the intended Senate would. Add that members vote by States, and that where only a single member from a State is present his vote is lost, and it is fair to suppose that the active votes in the Senate, where members vote individually, would seldom fall short of the active votes in the present Congress. Taking in as well the cooperation of the President, we may infer that the people of America would have greater security against an improper use of the treaty power under the new Constitution than they now enjoy under the Confederation. Looking one step further, to the probable growth of the Senate as new States are formed, we find ample ground to trust the sufficiency of the members entrusted with this power, and may even conclude that a body more numerous than the Senate is likely to become would be poorly fitted to discharge the trust at all.

The Constitution gives the President the power to nominate and, with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution. Congress may by law place the appointment of such inferior officers as it thinks proper in the President alone, in the courts of law, or in the heads of departments. The President may also fill vacancies that arise during a recess of the Senate, by granting commissions that expire at the end of its next session.

An earlier paper observed that the true test of a good government is its aptitude and tendency to produce a good administration. If we admit that, then this method of appointing officers deserves particular commendation when examined closely. It is hard to imagine a plan better designed to promote a judicious choice of men for the offices of the Union; and the character of the administration depends, more than on almost anything else, on getting that choice right.

Everyone will agree that the power of appointment, in ordinary cases, ought to be arranged in one of three ways: vested in a single man, in a select assembly of moderate size, or in a single man acting with the concurrence of such an assembly. Exercising it by the people at large is plainly impracticable, since, setting aside every other consideration, it would leave them little time to do anything else. So whenever the reasoning that follows speaks of an assembly or body of men, it means a select body of the kind just described. The people as a whole, given their numbers and their scattered situation, cannot be governed by that systematic spirit of cabal and intrigue which, it will be urged, forms the chief objection to lodging this power in a body of men.

Those who have reflected on the subject, or attended to what these papers say about the appointment of the President, will agree that there would always be a strong probability of having the office filled by a man of at least respectable abilities. Granting that, I lay it down as a rule that one man of discernment is better fitted to analyze and weigh the particular qualities suited to particular offices than a body of men of equal, or perhaps even superior, discernment.

The sole and undivided responsibility of one man naturally produces a livelier sense of duty and a closer regard to reputation. He therefore feels stronger obligations, and a greater interest, to investigate with care the qualities a station requires and to prefer impartially the persons with the fairest claims to it. He has fewer personal attachments to gratify than a body of men, each of whom may be supposed to have his own, and so he is far less likely to be misled by friendship and affection. A single well-directed mind cannot be distracted and warped by that diversity of views, feelings, and interests which frequently distracts and warps the resolutions of a collective body. Nothing agitates the passions of mankind so much as personal considerations, whether about ourselves or about those we are to choose among. So whenever an assembly of men exercises the power of appointment, we must expect a full display of all the private and party likings and dislikes, the partialities and antipathies, the attachments and animosities felt by its members. A choice made under such circumstances will be the result either of a victory of one party over another, or of a compromise between them. In either case the candidate’s real merit is too often lost from sight: in the first, the qualifications that best unite the votes of the party count for more than those that fit the man for the office; in the second, the coalition usually turns on some interested trade, “Give us the man we want for this office, and you shall have the one you want for that.” That is the usual bargain, and it will rarely happen that advancing the public service is the primary object of either party victories or party negotiations.

The most intelligent of those who fault the convention’s arrangement seem to feel the truth of these principles. They argue that the President alone should have been authorized to make appointments under the federal government. But every advantage expected from that arrangement is, in substance, already secured by the power of nomination given to him, while several disadvantages of an absolute power of appointment in his hands are avoided. In nominating, his judgment alone is exercised; and since it would be his sole duty to point out the man who, with the Senate’s approval, should fill the office, his responsibility is as complete as if he made the final appointment. In this view there is no real difference between nominating and appointing: the same motives that govern him in one case operate in the other. And since no one can be appointed except on his prior nomination, every man appointed is, in fact, his choice.

But might not his nomination be overruled? I grant that it might, yet this could only make room for another nomination by himself. The person finally appointed must still be someone he prefers, though perhaps not his first choice. Nor is it likely that his nominations would often be overruled. The Senate could not be tempted to reject the man proposed simply because they preferred another, since they could not be sure that the one they wished would ever be brought forward by a later nomination. They could not even be certain that a future nomination would offer a candidate any more acceptable to them; and since rejecting a nominee might cast a kind of stigma on the man and seem to reflect on the President’s judgment, the Senate is unlikely to refuse its approval except where there are special and strong reasons for doing so.

To what purpose, then, require the Senate’s cooperation? My answer is that the necessity of their concurrence would have a powerful, though usually silent, effect. It would be an excellent check on any spirit of favoritism in the President, and would do much to prevent the appointment of unfit men from State prejudice, family connection, personal attachment, or a craving for popularity. Beyond this, it would be an effective source of stability in the administration.

It is easy to see that a man who alone disposed of every office would be governed far more by his private inclinations and interests than one bound to submit the propriety of his choice to the discussion and decision of a separate, independent body, and that body an entire branch of the legislature. The mere possibility of rejection would be a strong motive for care in proposing. The danger to his own reputation, and, for an elective magistrate, to his political life, from showing favoritism or an unbecoming pursuit of popularity before a body whose opinion carries great weight with the public, could not fail to act as a barrier against both. He would be ashamed and afraid to put forward, for the most distinguished or lucrative posts, candidates whose only merit was coming from his own State, being personally connected to him, or possessing the insignificance and pliancy needed to make them the obsequious instruments of his pleasure.

It has been objected that the President, through the power of nomination, might purchase the Senate’s compliance with his wishes. This assumption of universal corruption in human nature is hardly less an error in political reasoning than the assumption of universal virtue. The very institution of delegated power implies that there is some portion of virtue and honor among mankind on which confidence may reasonably rest, and experience bears the theory out: such virtue has been found even in the most corrupt periods of the most corrupt governments. The venality of the British House of Commons has long been charged against it, both at home and here, and the charge is, to a considerable degree, well founded. Yet it is equally beyond doubt that a large proportion of that body always consists of independent and public-spirited men who carry real weight in the nation’s councils. For this reason, even in the present reign, the sense of the Commons is often seen to control the monarch’s inclinations as to both men and measures. So while one might allow that the Executive could occasionally influence a few individuals in the Senate, the supposition that he could generally buy the integrity of the whole body is strained and improbable. A man who views human nature as it is, neither flattering its virtues nor exaggerating its vices, will find sufficient ground of confidence in the Senate’s probity to be satisfied not only that the Executive cannot corrupt or seduce a majority of its members, but that the need for its cooperation in appointments will be a considerable and wholesome restraint on him.

Nor is the Senate’s integrity the only safeguard. The Constitution provides important guards against executive influence on the legislature: it declares that no senator or representative shall, during the term for which he was elected, be appointed to any civil office under the United States that was created, or whose pay was increased, during that time; and that no person holding any office under the United States shall be a member of either house while he continues in office.

It has been said that requiring the Senate’s consent for appointments would contribute to a stable administration, because, on this view, the Senate’s consent would also be needed to remove an officer, not only to install one. A change of President would therefore not produce so violent or general an upheaval among the officers of government as it might if he alone controlled every office. Where a man in any post had proven his fitness, a new President would hesitate to replace him with someone more to his liking, fearing that the Senate’s disapproval might defeat the attempt and bring some discredit on himself. Those who best understand the worth of a steady administration will most value a provision that ties the tenure of public men to the approval of a body which, being more permanent in its composition, will likely be less changeable than any other branch of government.

This pairing of Senate and President in appointments has been criticized in two opposite ways: some say it would give the President an undue influence over the Senate, others that it would give the Senate undue influence over the President. That the same arrangement draws opposite charges is itself strong proof that neither is true.

To state the first objection plainly is to refute it. It amounts to saying that the President would have improper influence over the Senate because the Senate has the power to restrain him, which is a contradiction in terms. There can be no doubt that giving the President the entire power of appointment would let him build a dangerous empire over the Senate far more effectively than a mere power of nomination subject to the Senate’s check.

Consider the reverse: that the Senate would influence the President. As with other objections, its vagueness makes a precise answer difficult: by what means is this influence exerted, and over what matters? To influence a person in this sense means to be able to confer a benefit on him, yet how could the Senate confer a benefit on the President by the manner in which it exercises its power to reject his nominations? If the answer is that the Senate might sometimes please him by approving a favorite even when public reasons argue against it, the cases in which the President is personally interested in the outcome would be too few to affect him materially. The power that can originate honors and rewards is more likely to attract than to be attracted by a power that can merely block their course. If “influencing the President” really means restraining him, that is precisely what was intended; and that restraint has been shown to be wholesome, without destroying any advantage to be expected from the uncontrolled agency of that executive. The right of nomination produces the good of the power of appointment while largely avoiding its evils.

Comparing this plan for appointing officers with the one in New York’s own constitution, the proposed plan is clearly preferable. Under it the power of nomination rests unmistakably with the President. Because each nomination must be submitted to an entire branch of the legislature, the circumstances of an appointment become public knowledge, and the people can readily see what part each actor played. The blame for a bad nomination falls on the President alone and absolutely; the blame for rejecting a good one falls entirely on the Senate, made worse by the fact that it has thwarted the President’s good intention. If a poor appointment is made, the President for nominating and the Senate for approving share, though in different degrees, in the disgrace.

New York’s method of appointment is the reverse of all this. Its council of appointment has from three to five members, the governor always among them. This small body, shut up in a private room beyond public view, carries out its trust in secret. The governor claims a right of nomination on the strength of some ambiguous words in the constitution, but it is unknown how far or in what manner he exercises it, or when he is opposed. Because the author of a bad appointment is uncertain and there is no fixed target, censure has neither force nor staying power; and while an unbounded field for intrigue lies open, all sense of responsibility is lost. The most the public can learn is this: that the governor claims the right of nomination; that two out of a council of four men can often be managed without much difficulty; that uncooperative members can frequently be sidelined by scheduling meetings so as to make their attendance inconvenient; and that, from one cause or another, many very improper appointments are made over time. Whether a given governor uses the advantage he must necessarily hold to prefer the best-qualified men, or prostitutes it to advance persons whose chief merit is devotion to his will, propping up a despicable and dangerous system of personal influence, are questions that, unfortunately for the community, can only be matters of speculation.

Any council of appointment, however it is formed, will be a conclave where intrigue has full play. Without an unwarranted increase in expense its membership cannot be large enough to prevent easy collusion. Because each member has friends and connections to provide for, the wish for mutual favors breeds a scandalous trading of votes and bargaining for places. One man’s private attachments might easily be satisfied, but satisfying the attachments of a dozen or a score of men would monopolize the chief offices of government in a few families, leading more directly to aristocracy or oligarchy than any other contrivance. If, to avoid such an accumulation of offices, the council’s members were changed often, that would bring on all the mischiefs of a mutable administration. Such a council would also be more open to executive influence than the Senate, being fewer in number and acting less directly under public view. In short, a council substituted for the convention’s plan would mean greater expense, more of the evils that spring from favoritism and intrigue, less stability in administration, and weaker security against undue executive influence; and yet such a council has been warmly urged as an essential amendment to the proposed Constitution.

I cannot close the subject of appointments without noting a scheme that has had a few advocates: joining the House of Representatives in the appointing power. I do little more than mention it, since I cannot imagine it gaining the support of any considerable part of the community. A body so fluctuating and at the same time so numerous can never be fit for that power. Its unfitness becomes plain when one recalls that within half a century the House may number three or four hundred persons. All the stability gained from the Executive and the Senate would be defeated by such a union, and endless delays and embarrassments would follow; the example of most of the States in their own constitutions warns us against the idea.

The only remaining powers of the Executive are these: giving Congress information on the state of the Union; recommending such measures as he judges expedient; convening Congress, or either house, on extraordinary occasions; adjourning them when they cannot agree on a time of adjournment; receiving ambassadors and other public ministers; faithfully executing the laws; and commissioning all the officers of the United States.

Apart from some quibbles about the power to convene either house of the legislature and the power to receive ambassadors, no objection has been made to this class of authorities, nor could any reasonably be. It took an insatiable appetite for fault-finding to invent exceptions to these parts. As to convening either house, there is, at least with the Senate, a clear reason: since the Senate shares the treaty power with the Executive, it may often be necessary to summon it for that purpose when it would be improper to convene the House. As to receiving ambassadors, what I have said in a former paper is a sufficient answer.

We have now surveyed the structure and powers of the executive department, which, I have tried to show, combines, as far as republican principles allow, all the requisites for energy. The remaining question is whether it also combines the requisites for safety in a republican sense: a due dependence on the people and a due responsibility. The answer has been anticipated in examining its other features and follows from these facts: the President is chosen once every four years by persons the people themselves select for that purpose, and he is at all times liable to impeachment, trial, removal from office, disqualification from any other, and forfeiture of life and estate by later prosecution in the ordinary course of law. Yet great as these precautions are, they are not the only ones the plan provides for public security: in the very cases where abuse of executive authority was most to be feared, the Chief Magistrate is subjected to the control of a branch of the legislature. What more could an enlightened and reasonable people ask?