The Powers of the President

The third source of executive vigor is a secure provision for its support. Without it, the separation of the executive from the legislature would be merely nominal. A legislature with discretionary power over the Chief Magistrate’s pay could make him servile. It could starve him, or tempt him with gifts. That says more than I intend; a few men can be neither starved nor bought. But such virtue is rare, and a power over a man’s support is a power over his will.

The Constitution fixes his pay for the term for which he is elected; the legislature may neither raise nor lower it. Within that term he may take no other pay from the United States or any State. It therefore cannot weaken his resolve by working on his needs, or corrupt his integrity by appealing to his greed. He has no money reason to desert the independence the Constitution intends for him.

The last requirement for energy is adequate powers. The first is the President’s qualified negative: he may return a bill with objections, and it fails unless two thirds of each house approve it. We have already shown that the legislature tends to absorb the other departments’ powers, and that parchment boundaries do not hold. Each department must be armed to defend itself. Without a negative, absolute or qualified, the Executive could not resist the legislature. He might be stripped of his authority by successive resolutions, or destroyed by a single vote. Either way, the two powers would soon be blended in one hand.

This power has a further use: it shields the Executive and checks the legislature. That check guards the community against faction, haste, or any impulse hostile to the public good. Some object that one man should not be presumed wiser or more virtuous than many. The power rests not on the Executive’s superior wisdom but on the legislature’s fallibility. Love of power may tempt it to encroach on others’ rights; faction may pervert its deliberations; a moment’s impulse may hurry it into measures it would later condemn.

The first end of this power is his self-defense. The second is to improve the community’s odds against bad laws passed through haste, inattention, or design. The oftener a measure is examined, and the more varied its examiners, the smaller the danger. Bad motives are far less likely to infect every part of the government at once than to mislead each part in turn.

It may be said that the power to block bad laws can block good ones too. That weighs little with anyone who measures the harm of unsteady, changeable laws, the greatest blemish in our governments. A check on excess lawmaking favors stability; a few good laws lost is repaid by many bad ones prevented. And the negative would be used with caution. The legislature carries superior weight, and the Executive risks much in a trial of strength. Even a king of Great Britain would hesitate today to put his negative on the joint resolutions of both houses of Parliament.

The greater danger is that he will not use the power when needed. That very caution has been turned against it: odious in appearance, useless in practice. But rare use is not no use. It is meant chiefly for one case: an immediate attack on the Executive’s constitutional rights, or a plain sacrifice of the public good. There his resolve is stirred by his interest in the powers of his office, or by the likely approval of his constituents. They lean toward the legislature in a doubtful case, but would not be deceived in a plain one. I speak of a magistrate with only common firmness.

The convention took a middle course. Instead of an absolute negative, the Executive gets the qualified one, which he would use far more readily. A man who feared to defeat a law by his single veto might not hesitate to return it for reconsideration. It then falls only if more than one third of each house upholds his objections. He is encouraged by this: if his opposition prevails, a respectable share of the legislature stands with him. A flat negative looks harsher and is apter to irritate than reasoned objections. The less it offends, the more it is used, and so it may prove more effective.

We may hope that improper aims will seldom govern two thirds of both branches at once, against the Executive’s counterweight. At any rate they taint a bare majority far more easily. This power often works in a silent, unnoticed, though forcible, way. Men in unjustifiable schemes know that obstruction may come from a quarter they cannot control. The bare fear of opposition holds them back from what they would otherwise rush into.

In this State the qualified negative is vested in a council. It joins the governor with the chancellor and the judges of the Supreme Court, or any two of them. It has been used freely and with success; some early opposers now admire it. As I have noted elsewhere, the convention followed Massachusetts here instead, for two reasons. Judges who interpret the law might gain an improper bias from a prior opinion given in a revising role. And, often joined with the Executive, they might be drawn into his political views, cementing a dangerous combination of the executive and judicial departments. The judges cannot be kept too clear of executive influence.

The President is commander-in-chief of the army and navy, and of the militia of the several States when called into actual service. This is plainly fitting, and matches the State constitutions. Even States that pair their chief magistrate with a council mostly leave military authority to him alone. Of all the concerns of government, war most demands a single hand. To direct a war is to direct the common strength, an essential part of executive authority.

He may require each executive department head’s written opinion on his duties, which the office already grants him. He may grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Mercy should meet few barriers, both for kindness and for good policy; criminal law is severe enough that justice without exceptions grows cruel. One man alone bears the blame, so the duty weighs most. One man would be readiest to weigh the reasons for mercy, and least apt to shield a fit object of vengeance. A group takes courage from its numbers. Its members might steel one another, and each fear blame less for a soft, foolish pardon. So one man is the fitter judge of mercy.

The pardoning power has been disputed only for treason, where some would require the legislature’s consent. I grant strong reasons for it. Treason strikes at society’s very being, so once guilt is fixed, mercy fitly falls to the legislature. Nor can the Chief Magistrate’s own connivance be ruled out. But in delicate moments one prudent man weighs the case better than any large body. Treason often joins wide seditions, and the people’s representatives may share the spirit behind them. The condemned’s friends might let him go free where an example was needed; an inflamed majority might refuse mercy when policy urged it.

The chief argument for lodging the power in the Chief Magistrate is this. In insurrection or rebellion, a well-timed pardon may restore the commonwealth’s peace, and the moment once passed can never be recalled. Calling the legislature together would often let the moment slip. The loss of a week, a day, or an hour may prove fatal.

It might be said that the President could be given such power by law. I answer two things. First, under a limited Constitution such delegation by law is doubtful. Second, promising in advance to spare the guilty is unwise. A step outside the usual course would read as fear, and would only make guilt bolder.

The President may make treaties “by and with the advice and consent of the Senate,” two thirds of the senators present concurring. Critics attack it hotly, yet I count it among the best-arranged parts of the plan. One objection is the old complaint about mixing powers. Some would give treaties to the President alone, others to the Senate alone. A second objection points to the few who may make a treaty. One part would add the House of Representatives, the other require two thirds of all senators, not merely those present. Joining the Executive with the Senate breaks no rule against mixing powers. The nature of the power makes that union fitting. Writers class it as executive, but arbitrarily; it leans legislative and fits neither definition. It executes no law, enacts none, and exerts no common strength. Its objects are contracts with foreign nations, drawing the force of law from good faith: agreements between sovereign and sovereign, not rules laid on a subject. The power forms a distinct department, belonging to neither branch. Negotiation calls for the Executive’s skills; the trust’s weight, and treaties’ force as laws, argue for the legislature’s share.

It may be safe to give a hereditary monarch the whole treaty power; for an elected magistrate of four years it would be utterly unsafe. Such a monarch has too large a stake to be in much danger of corruption by foreign powers. A President is raised from private station, of modest fortune, and must probably return to it. He might feel temptations to sacrifice duty to interest. Only the highest virtue could resist them. Greed might betray the state for wealth; ambition, for a foreign power’s aid. Human conduct does not warrant such faith. To trust the Senate alone would forfeit the President’s constitutional role in foreign negotiations. The Senate might employ him, or from pique might not. A mere agent of the Senate could not command foreign confidence as the nation’s representative would. The Union would lose an advantage abroad, the people the security of the Executive’s help. President and Senate together offer a greater prospect of security than either alone. A President’s selection makes it likely the office will hold men whose agreement is worth having, for wisdom and integrity.

The same remarks bar the House of Representatives from a share in treaties. Its membership shifts and will grow with the country. Such a body cannot hold accurate knowledge of foreign politics, steady adherence to one set of views, a feeling for national character, or decision, secrecy, and dispatch. Requiring so many bodies to agree is itself a solid objection. The House would be called more often and kept longer, at great trouble and expense. The last objection would require two thirds of all senators, not merely those present. Any rule demanding more than a majority hampers government and bends the majority to the minority. The convention went as far toward numbers as the energy of public councils allowed. Two thirds of the whole would often, through absence, mean unanimity in practice. Every government ruled by that principle has a history of impotence, perplexity, and disorder.

A fixed proportion of the whole body serves numbers no better than a proportion of those present. A fixed number always needed weakens the motive to attend. A proportion of those present shifts with one member, so it spurs attendance and keeps the body full. Decisions would come from as great a number, with fewer delays. Under the Confederation two members usually represent a State, so Congress rarely has more men than the intended Senate. Members there vote by States, and a lone member’s vote is lost. The Senate’s votes, cast one by one, would seldom fall short of those now in Congress. Add the President’s help, and the people gain more security against misuse of the treaty power than they now have. As the Senate grows with new States, a larger body than it will become would ill fit the trust.

The President nominates. With the Senate’s advice and consent, he appoints ambassadors, public ministers and consuls, judges of the Supreme Court, and all other officers not otherwise provided for. Congress may by law give inferior appointments to the President alone, the courts of law, or department heads. He may also fill recess vacancies; those commissions expire at the end of the Senate’s next session. An earlier paper made good administration the test of good government. By that test this plan earns praise. No plan better fits a wise choice of the Union’s officers, and on that choice its character depends.

All agree the power of appointment belongs in one of three places: one man, a select assembly of moderate size, or one man with such an assembly. The people at large cannot do it; they would have time for nothing else. The people, many and scattered, escape the systematic cabal and intrigue urged as the chief objection to a body of men. The President will likely be a man of at least respectable abilities. Granting that, I lay down a rule. One man of discernment judges the qualities a particular office needs better than a body of equal or greater discernment.

One man’s sole and undivided responsibility breeds a livelier sense of duty and a closer regard to reputation. He studies with care what a station needs, and picks the fittest without bias. He has fewer attachments to gratify than a body of men, and no clash of interests warps him as it warps them. Nothing stirs the passions like personal matters. So an appointing assembly displays all its members’ likings, dislikes, and ill will. Its choice is then a party victory or a compromise, and real merit drops from sight either way. In the first, what unites the party’s votes outweighs fitness for the office. In the second, the trade runs: our man here, yours there. Rarely is the public service the first object.

The ablest critics would let the President appoint alone. But every advantage of that flows from his nomination, without the dangers of absolute power. In nominating, his judgment alone acts; his responsibility is as complete as if he appointed. The same motives govern both, and since none is appointed but on his nomination, every appointee is his choice. Might a nomination be overruled? I grant it might, but only to make room for another of his own; the appointee is still his preference. Rejection marks the man and slights the President’s judgment. Senators cannot be sure a later nomination would please them more. So the Senate refuses only for special and strong reasons.

Why require the Senate’s concurrence? My answer: the need for it works powerfully, though usually in silence. It checks favoritism in the President. It helps prevent unfit appointments from State prejudice, family connection, personal attachment, or a craving for popularity. It also steadies the administration. A man who disposes of offices alone follows his private wishes far more than one bound to submit his choice to a branch of the legislature. The bare chance of rejection is a strong motive for care. Showing favoritism before a body that shapes public opinion risks his good name and political life. He would be ashamed to put forward men whose only merit was his State, a tie to him, or a pliancy that serves him.

It is objected that the President could buy the Senate’s compliance through nomination. To assume every man corrupt errs almost as much as to assume every man good. Delegated power implies some virtue and honor to trust, and experience bears it out. The British House of Commons is charged with corruption, in good part justly. Yet much of that body is always independent and public-spirited. The Executive might sway a few senators. That he could buy the whole body’s integrity is strained and unlikely. Viewing human nature as it is, I trust the Senate’s honesty and call its concurrence a wholesome restraint.

The Senate’s integrity is not the only safeguard. The Constitution guards against executive sway over the legislature. No senator or representative may take a civil office created, or better paid, during his term. No one holding a federal office may sit in either house while he holds it.

One advantage claimed for the Senate’s part in appointments is a steadier administration. Its consent would be needed to remove an officer as well as to install one. A change of President would not upheave the officers of government. Where a man had proved fit, a new President would hesitate to replace him, fearing the Senate might defeat the attempt. Those who prize steady administration will most value tying public men’s tenure to a less changeable body.

Pairing the Senate with the President in appointments draws two opposite charges. Some say it gives him undue influence over the Senate, others the reverse. That both are urged is strong proof that neither is true. State the first plainly and it refutes itself. He sways the Senate because the Senate can restrain him: a contradiction in terms. Full power of appointment would build a far more dangerous empire over that body than a nomination the Senate can check.

Now the reverse, that the Senate would influence the President. The objection is too vague to answer. To influence a man is to confer a benefit on him, and the Senate confers none by rejecting his nominations. It might sometimes please him by approving a favorite against public reasons, but he is personally interested too rarely to be swayed. If influencing him means restraining him, that is what was intended, and the restraint is wholesome. Nomination produces the good of appointment while largely avoiding its evils.

The proposed plan is clearly better than New York’s. Nomination rests plainly with the President, and each goes to a whole branch of the legislature. The public therefore sees each actor’s part. Blame for a bad nomination falls on the President alone; blame for rejecting a good one falls on the Senate. New York does the reverse: a council of three to five, including the governor, meets in secret. With the author of a bad appointment uncertain, censure loses force, intrigue has an open field, and responsibility is lost.

Any council of appointment is a conclave where intrigue has full play. Without heavy expense it can never be large enough to prevent collusion, and its members will barter votes for places. One man’s attachments are easily satisfied. A dozen men’s would lock the chief offices into a few families, tending to aristocracy or oligarchy more than any other device. Changing the members often to avoid that brings a mutable administration. Fewer and less watched than the Senate, such a council lies more open to executive influence. Yet it is urged as an essential amendment.

One further scheme, with few advocates, would join the House of Representatives in appointments. I barely mention it, since I cannot imagine much of the community favoring it. A body so changeable and so numerous can never suit that power. The stability gained from the President and the Senate would be lost, and endless delays would follow.

His remaining powers are few. He informs Congress on the state of the Union and recommends measures he judges expedient. He convenes Congress, or either house, on extraordinary occasions, and adjourns them when they cannot agree on a time. He receives ambassadors and other public ministers, executes the laws faithfully, and commissions all officers of the United States. No objection has been made to these, beyond quibbles about convening either house and receiving ambassadors. Convening the Senate has a plain reason: it shares the treaty power, and may need summoning when the House does not.

We have now surveyed the executive department, which combines every requisite of energy republican principles allow. Does it also combine the requisites of safety: dependence on the people and responsibility? The answer follows. The President is chosen every four years by electors the people themselves choose. He is at all times liable to impeachment, trial, removal, and disqualification from any other office. A later prosecution at law may take his life and estate. Where abuse was most to be feared, he is also checked by a branch of the legislature. What more could an enlightened and reasonable people ask?