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FEDERALIST No. 77

The Appointing Power Continued and Other Powers of the Executive
 Considered
From the New York Packet.
Friday, April 4, 1788.

HAMILTON

To the People of the State of New York:
IT HAS been mentioned as one of the advantages to be expected
 from the co-operation of the Senate, in the business of
 appointments, that it would contribute to the stability of the
 administration. The consent of that body would be necessary to
 displace as well as to appoint. A change of the Chief Magistrate,
 therefore, would not occasion so violent or so general a revolution
 in the officers of the government as might be expected, if he were
 the sole disposer of offices. Where a man in any station had given
 satisfactory evidence of his fitness for it, a new President would
 be restrained from attempting a change in favor of a person more
 agreeable to him, by the apprehension that a discountenance of the
 Senate might frustrate the attempt, and bring some degree of
 discredit upon himself. Those who can best estimate the value of a
 steady administration, will be most disposed to prize a provision
 which connects the official existence of public men with the
 approbation or disapprobation of that body which, from the greater
 permanency of its own composition, will in all probability be less
 subject to inconstancy than any other member of the government.
To this union of the Senate with the President, in the article
 of appointments, it has in some cases been suggested that it would
 serve to give the President an undue influence over the Senate, and
 in others that it would have an opposite tendency, a strong proof
 that neither suggestion is true.
To state the first in its proper form, is to refute it. It
 amounts to this: the President would have an improper INFLUENCE
 OVER the Senate, because the Senate would have the power of
 RESTRAINING him. This is an absurdity in terms. It cannot admit of
 a doubt that the entire power of appointment would enable him much
 more effectually to establish a dangerous empire over that body,
 than a mere power of nomination subject to their control.
Let us take a view of the converse of the proposition: ``the
 Senate would influence the Executive.'' As I have had occasion to
 remark in several other instances, the indistinctness of the
 objection forbids a precise answer. In what manner is this
 influence to be exerted? In relation to what objects? The power of
 influencing a person, in the sense in which it is here used, must
 imply a power of conferring a benefit upon him. How could the
 Senate confer a benefit upon the President by the manner of
 employing their right of negative upon his nominations? If it be
 said they might sometimes gratify him by an acquiescence in a
 favorite choice, when public motives might dictate a different
 conduct, I answer, that the instances in which the President could
 be personally interested in the result, would be too few to admit of
 his being materially affected by the compliances of the Senate. The
 POWER which can ORIGINATE the disposition of honors and emoluments,
 is more likely to attract than to be attracted by the POWER which
 can merely obstruct their course. If by influencing the President
 be meant RESTRAINING him, this is precisely what must have been
 intended. And it has been shown that the restraint would be
 salutary, at the same time that it would not be such as to destroy a
 single advantage to be looked for from the uncontrolled agency of
 that Magistrate. The right of nomination would produce all the good
 of that of appointment, and would in a great measure avoid its evils.
 Upon a comparison of the plan for the appointment of the
 officers of the proposed government with that which is established
 by the constitution of this State, a decided preference must be
 given to the former. In that plan the power of nomination is
 unequivocally vested in the Executive. And as there would be a
 necessity for submitting each nomination to the judgment of an
 entire branch of the legislature, the circumstances attending an
 appointment, from the mode of conducting it, would naturally become
 matters of notoriety; and the public would be at no loss to
 determine what part had been performed by the different actors. The
 blame of a bad nomination would fall upon the President singly and
 absolutely. The censure of rejecting a good one would lie entirely
 at the door of the Senate; aggravated by the consideration of their
 having counteracted the good intentions of the Executive. If an ill
 appointment should be made, the Executive for nominating, and the
 Senate for approving, would participate, though in different
 degrees, in the opprobrium and disgrace.
The reverse of all this characterizes the manner of appointment
 in this State. The council of appointment consists of from three to
 five persons, of whom the governor is always one. This small body,
 shut up in a private apartment, impenetrable to the public eye,
 proceed to the execution of the trust committed to them. It is
 known that the governor claims the right of nomination, upon the
 strength of some ambiguous expressions in the constitution; but it
 is not known to what extent, or in what manner he exercises it; nor
 upon what occasions he is contradicted or opposed. The censure of a
 bad appointment, on account of the uncertainty of its author, and
 for want of a determinate object, has neither poignancy nor duration.
 And while an unbounded field for cabal and intrigue lies open, all
 idea of responsibility is lost. The most that the public can know,
 is that the governor claims the right of nomination; that TWO out
 of the inconsiderable number of FOUR men can too often be managed
 without much difficulty; that if some of the members of a
 particular council should happen to be of an uncomplying character,
 it is frequently not impossible to get rid of their opposition by
 regulating the times of meeting in such a manner as to render their
 attendance inconvenient; and that from whatever cause it may
 proceed, a great number of very improper appointments are from time
 to time made. Whether a governor of this State avails himself of
 the ascendant he must necessarily have, in this delicate and
 important part of the administration, to prefer to offices men who
 are best qualified for them, or whether he prostitutes that
 advantage to the advancement of persons whose chief merit is their
 implicit devotion to his will, and to the support of a despicable
 and dangerous system of personal influence, are questions which,
 unfortunately for the community, can only be the subjects of
 speculation and conjecture.
Every mere council of appointment, however constituted, will be
 a conclave, in which cabal and intrigue will have their full scope.
 Their number, without an unwarrantable increase of expense, cannot
 be large enough to preclude a facility of combination. And as each
 member will have his friends and connections to provide for, the
 desire of mutual gratification will beget a scandalous bartering of
 votes and bargaining for places. The private attachments of one man
 might easily be satisfied; but to satisfy the private attachments
 of a dozen, or of twenty men, would occasion a monopoly of all the
 principal employments of the government in a few families, and would
 lead more directly to an aristocracy or an oligarchy than any
 measure that could be contrived. If, to avoid an accumulation of
 offices, there was to be a frequent change in the persons who were
 to compose the council, this would involve the mischiefs of a
 mutable administration in their full extent. Such a council would
 also be more liable to executive influence than the Senate, because
 they would be fewer in number, and would act less immediately under
 the public inspection. Such a council, in fine, as a substitute for
 the plan of the convention, would be productive of an increase of
 expense, a multiplication of the evils which spring from favoritism
 and intrigue in the distribution of public honors, a decrease of
 stability in the administration of the government, and a diminution
 of the security against an undue influence of the Executive. And
 yet such a council has been warmly contended for as an essential
 amendment in the proposed Constitution.
I could not with propriety conclude my observations on the
 subject of appointments without taking notice of a scheme for which
 there have appeared some, though but few advocates; I mean that of
 uniting the House of Representatives in the power of making them. I
 shall, however, do little more than mention it, as I cannot imagine
 that it is likely to gain the countenance of any considerable part
 of the community. A body so fluctuating and at the same time so
 numerous, can never be deemed proper for the exercise of that power.
 Its unfitness will appear manifest to all, when it is recollected
 that in half a century it may consist of three or four hundred
 persons. All the advantages of the stability, both of the Executive
 and of the Senate, would be defeated by this union, and infinite
 delays and embarrassments would be occasioned. The example of most
 of the States in their local constitutions encourages us to
 reprobate the idea.
The only remaining powers of the Executive are comprehended in
 giving information to Congress of the state of the Union; in
 recommending to their consideration such measures as he shall judge
 expedient; in convening them, or either branch, upon extraordinary
 occasions; in adjourning them when they cannot themselves agree
 upon the time of adjournment; in receiving ambassadors and other
 public ministers; in faithfully executing the laws; and in
 commissioning all the officers of the United States.
Except some cavils about the power of convening EITHER house of
 the legislature, and that of receiving ambassadors, no objection has
 been made to this class of authorities; nor could they possibly
 admit of any. It required, indeed, an insatiable avidity for
 censure to invent exceptions to the parts which have been excepted
 to. In regard to the power of convening either house of the
 legislature, I shall barely remark, that in respect to the Senate at
 least, we can readily discover a good reason for it. AS this body
 has a concurrent power with the Executive in the article of
 treaties, it might often be necessary to call it together with a
 view to this object, when it would be unnecessary and improper to
 convene the House of Representatives. As to the reception of
 ambassadors, what I have said in a former paper will furnish a
 sufficient answer.
We have now completed a survey of the structure and powers of
 the executive department, which, I have endeavored to show,
 combines, as far as republican principles will admit, all the
 requisites to energy. The remaining inquiry is: Does it also
 combine the requisites to safety, in a republican sense, a due
 dependence on the people, a due responsibility? The answer to this
 question has been anticipated in the investigation of its other
 characteristics, and is satisfactorily deducible from these
 circumstances; from the election of the President once in four
 years by persons immediately chosen by the people for that purpose;
 and from his being at all times liable to impeachment, trial,
 dismission from office, incapacity to serve in any other, and to
 forfeiture of life and estate by subsequent prosecution in the
 common course of law. But these precautions, great as they are, are
 not the only ones which the plan of the convention has provided in
 favor of the public security. In the only instances in which the
 abuse of the executive authority was materially to be feared, the
 Chief Magistrate of the United States would, by that plan, be
 subjected to the control of a branch of the legislative body. What
 more could be desired by an enlightened and reasonable people?
PUBLIUS.