The Executive Branch

The Federalist No. 67

The Papers now turn to the Executive branch. This branch may have been the most difficult to configure, but has also attracted the most venomous and irresponsible criticisms, which shall require in reply a careful disquisition of the office and its powers. Some have rashly compared the office to those of kings and potentates, opulent and given to the pomp of majesty. An example of the great length opponents seem willing to go is radical misconstruction of the constitution itself. Some author has acquired fame (Cato in his essay number V) by accusing the constitution of giving the President the power to fill vacancies in the Senate, when the language of the Constitution clearly limits that power to state governors, giving the President only the power to fill vacancies in offices for which the Senate must confirm nominations when the Senate is in recess. Shame, Shame, Shame.

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The Federalist No. 68

The manner of appointing a President is optimum, as it reflects the people’s choice yet provides the best chance to name someone with the best ability and virtue for the office without corruption or foreign influence. An indirect election also limits the tumult a popular election would engender. Electing the Vice President the same way is justified by his role as President of the Senate but only voting to break ties, and the chance he will be required to discharge the duties of the President in emergencies.

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The Federalist No. 69

This paper is a recital of the powers of the President as given in the Constitution, with each power shown to be less than the comparable power of the King of England, and often equal to or less than the comparable power of state governors. There is no reasonable construction on this office that would merit the name of aristocracy, monarchy, or despotism.

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The Federalist No. 70

Despite some legitimate concerns, a republican government requires a strong chief executive. The ingredients are unity, duration, support, and competent powers. This essay deals with unity. The safety and functioning of a republic depend upon a single executive rather than a plural executive or an executive oversight council. By contrast, the legislature must have large enough numbers to prevent internal abuse, and operate slowly, allowing its dissentions to force delay and more deliberation. The former excels regarding speed and quality of decision and execution of those decisions, is less easily compromised by internal dissensions, may be made more accountable and thus more easily controlled by the people, by removal if necessary, is less susceptible to corruption and abuse, and even if corrupt is less powerfully so than a cabal, and a plural executive is too expensive.

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The Federalist No. 71

The President must be given tenure of sufficient length to assure his commitment to the office and time to enact his agenda. A longer term also enables a President to filter out the periodic turbulence of the people, who are excitable and can operate at variance to their own best interests. The President must also be independent of the legislature, for which a longer term provides some security. An optimum term suiting all requirements is not likely to be found, but four years seems long enough to permit effective and committed action on the part of the President without his actions creating insuperable dangers to the people.

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The Federalist No. 72

Given the propensity of new administrations to replace all key officers of the administration, a longer term conduces to greater stability. As long as the people are satisfied, the President should be allowed to remain in office. Term limits have some superficial appeal, but on consideration are ill-founded. The prospect of continuing in office will realize the best from the President. Forcing him out will encourage corruption and self-dealing. An ambitious man will attempt to keep power in other ways, impairing the integrity of government itself. Term limits deprive the office of accumulated experience, and may remove a man crucial to a circumstance at just the wrong moment. Term limits would also force alterations in policy when none were needed. Even partial exclusions would have the same effect. Annoying the people by removing a popular President might be more insecure than requiring the people to choose a new one every so often.

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The Federalist No. 73

Fixing the President’s income for his term is an effective means of denying Congress the power of his income as a form of influence. The qualified veto power of the President maintains the separation of the executive from the legislative branch, and erects barriers to legislative abuse and control by factions. It allows the President to protect himself, offers another voice in legislation which will avert hasty or corrupt decisions, and adds weight to a desirable slowness in new legislation, adding stability to government. As with the king of England, the President cannot afford to use the veto power more often than he feels is necessary without severing the good will required between himself and Congress. The greater danger may be using the power too little. But the qualified veto system both encourages and limits use, creating suitable boundaries on a necessary and effective tool for effective governance. Even opponents from New York have seen how well the New York system has worked, and become advocates. The federal system follows Massachusetts rather than New York because the New York system blurs the line between the judicial and executive branches

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The Federalist No. 74

Naming a single person, the President, as commander-in-chief, brooks little argument, as the direction of war requires a common strength, best placed in a single hand. The presidential power to require opinions in writing is likely redundant with necessity and has engendered no complaints. The presidential power to pardon is also necessary to avert specific injustices, and in the hands of one person rather than a committee has the best chance of avoiding influence and abuse. The power to pardon treasons also belongs in presidential hands, even though a case can be made for legislative involvement, in particular because a pardon may be necessary to still a local rebellion, which the president may grant immediately, but the dilatory process of Congress may let the opportunity disastrously slip away.

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The Federalist No. 75

Complaints against the constitution’s treaty provisions vary from those wanting the President alone to negotiate and confirm, to those wanting the Senate alone to negotiate and confirm, plus those wanting the House involved. Treaties are neither law nor the execution of the law, a hybrid that should have the involvement of both branches. The President alone, with a four-year term, cannot have believable staying power; the Senate, as a large agency, cannot have reliable powers of representation. The short terms and large numbers in the House, plus the addition of a third entity to the process, makes it undesirable as a party. The two-thirds rule, problematic in the sense that it implies minority rule, should nevertheless be operative over members present rather than the whole or a stipulated quorum, both of which add problems to a problem.

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The Federalist No. 76

Granting the President the sole power to nominate ambassadors and other public ministers assures optimum selections compared to nominations from the people or from committees, the former too removed and uninformed, the latter too subject to secondary considerations and internal negotiations compared to real qualifications. Requiring the Senate to approve such appointments, but at the same time precluding the Senate from nominations themselves, pressures the President to offer the best, least self-serving choice. The entire mechanism combined with human nature limits the power the President may have over the Senate regarding his nominations.

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The Federalist No. 77

Senate approval of presidential appointments will add stability to government. The process favors neither the President nor the Senate regarding the prospect of undue influence. The new constitution’s plan, of Senate approval of key executive officers, is far superior to the New York process of a council, with the governor a guaranteed member. Any such council is a magnet for corruption and intrigue. Adding the House as an approving body makes no sense given its flux and size. The residual duties of the President—state of the union address, convening Congress in emergencies, receiving ambassadors, faithfully executing the laws, and commissioning officers—have excited little controversy. The combined constraints on the President offer adequate guards against abuse.

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The Federalist No. 81

“The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source.”

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The Federalist No. 82

It will take time to mature any new government combining and retaining distinct sovereign units. An issue in such maturation is exclusive or concurrent court jurisdictions. States retain all pre-existing authorities not expressly abridged by the new constitution. As states are not exempt from federal jurisdictions, the constitution supports concurrent jurisdictions for causes falling within the ambit of federal cognizance, either pre-existing or new. As any judicial system must be seen as a whole, causes within concurrent jurisdictions tried by a state court can be appealed to the Supreme Court, or any federal inferior court if the Congress so orders.

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The Federalist No. 83

Silence in the Constitution regarding trial by jury for civil cases does not imply prohibition; it means no more than the question is for the legislature, which can require them or not. For silence to prohibit trial by jury would violate the rule of enumerated powers, which deprives anybody of positive or negative powers outside those specified. Our liberties are generally served by restrictions such as habeas corpus and mandatory jury trials on criminal cases. The preponderance of civil cases will arise in state courts anyway, which are not affected by the Constitution. It is all but impossible to find a uniform notion of the exact arrangements of civil cases which could be amenable to jury trials—some clearly are not, and the states have a diverse array of court organizations. Good government depends upon the general character of the government rather than any particular provision anyway.

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