1787 Federalist 76 · Founding Made Plain

11787 Federalist No. 76

2The Appointing Power of the Executive

3From the New York Packet.

4Tuesday, April 1, 1788.

5HAMILTON

6To the People of the State of New York:

7THE President is "to NOMINATE, and,

8 by and with the advice and consent of the Senate,

9 to appoint ambassadors,

10 other public ministers and consuls,

11 judges of the Supreme Court,

12 and all other officers of the United States

13 whose appointments are not otherwise provided for

14 in the Constitution.

15But the Congress may by law vest the appointment

16 of such inferior officers as they think proper,

17 in the President alone,

18 or in the courts of law,

19 or in the heads of departments.

20The President shall have power to fill up ALL VACANCIES

21 which may happen DURING THE RECESS OF THE SENATE,

22 by granting commissions

23 which shall EXPIRE

24 at the end of their next session."

25It has been observed in a former paper,

26 that "the true test of a good government

27 is its aptitude and tendency

28 to produce a good administration."

29If the justness of this observation be admitted,

30 the mode of appointing the officers

31 of the United States

32 contained in the foregoing clauses,

33 must, when examined, be allowed to be entitled

34 to particular commendation.

35It is not easy to conceive a plan

36 better calculated than this

37 to promote a judicious choice of men

38 for filling the offices of the Union;

39 and it will not need proof,

40 that on this point must essentially depend

41 the character of its administration.

42It will be agreed on all hands,

43 that the power of appointment, in ordinary cases,

44 ought to be modified in one of three ways.

45It ought either to be vested in a single man,

46 or in a SELECT assembly of a moderate number;

47 or in a single man,

48 with the concurrence of such an assembly.

49The exercise of it by the people at large

50 will be readily admitted to be impracticable;

51 as waiving every other consideration,

52 it would leave them little time

53 to do anything else.

54When, therefore, mention is made

55 in the subsequent reasonings

56 of an assembly or body of men,

57 what is said must be understood to relate

58 to a select body or assembly,

59 of the description already given.

60The people collectively,

61 from their number and from their dispersed situation,

62 cannot be regulated in their movements

63 by that systematic spirit of cabal and intrigue,

64 which will be urged as the chief objections

65 to reposing the power in question in a body of men.

66Those who have themselves reflected upon the subject,

67 or who have attended to the observations made

68 in other parts of these papers,

69 in relation to the appointment of the President,

70 will, I presume, agree to the position,

71 that there would always be great probability

72 of having the place supplied

73 by a man of abilities, at least respectable.

74Premising this, I proceed to lay it down as a rule,

75 that one man of discernment is better fitted

76 to analyze and estimate the peculiar qualities

77 adapted to particular offices,

78 than a body of men of equal

79 or perhaps even of superior discernment.

80The sole and undivided responsibility of one man

81 will naturally beget a livelier sense of duty

82 and a more exact regard to reputation.

83He will, on this account,

84 feel himself under stronger obligations,

85 and more interested to investigate with care

86 the qualities requisite

87 to the stations to be filled,

88 and to prefer with impartiality

89 the persons who may have the fairest pretensions

90 to them.

91He will have FEWER personal attachments to gratify,

92 than a body of men

93 who may each be supposed to have an equal number;

94 and will be so much the less liable

95 to be misled by the sentiments

96 of friendship and of affection.

97A single well-directed man, by a single understanding,

98 cannot be distracted and warped

99 by that diversity of views,

100 feelings, and interests,

101 which frequently distract and warp

102 the resolutions of a collective body.

103There is nothing so apt to agitate the passions of mankind

104 as personal considerations

105 whether they relate to ourselves or to others,

106 who are to be the objects

107 of our choice or preference.

108Hence, in every exercise of the power of appointing

109 to offices, by an assembly of men,

110 we must expect to see a full display

111 of all the private and party likings and dislikes,

112 partialities and antipathies,

113 attachments and animosities,

114 which are felt by those who compose the assembly.

115The choice which may at any time happen to be made

116 under such circumstances,

117 will of course be the result

118 either of a victory gained

119 by one party over the other,

120 or of a compromise between the parties.

121In either case,

122 the intrinsic merit of the candidate

123 will be too often out of sight.

124In the first,

125 the qualifications best adapted

126 to uniting the suffrages of the party,

127 will be more considered

128 than those which fit the person for the station.

129In the last,

130 the coalition will commonly turn

131 upon some interested equivalent:

132 "Give us the man we wish for this office,

133 and you shall have the one you wish for that."

134This will be the usual condition of the bargain.

135And it will rarely happen

136 that the advancement of the public service

137 will be the primary object

138 either of party victories or of party negotiations.

139The truth of the principles here advanced

140 seems to have been felt

141 by the most intelligent of those

142 who have found fault with the provision made,

143 in this respect, by the convention.

144They contend that the President ought solely

145 to have been authorized to make the appointments

146 under the federal government.

147But it is easy to show,

148 that every advantage to be expected

149 from such an arrangement

150 would, in substance, be derived

151 from the power of NOMINATION,

152 which is proposed to be conferred upon him;

153 while several disadvantages

154 which might attend the absolute power

155 of appointment

156 in the hands of that officer would be avoided.

157In the act of nomination,

158 his judgment alone would be exercised;

159 and as it would be his sole duty to point out the man

160 who, with the approbation of the Senate,

161 should fill an office,

162 his responsibility would be as complete

163 as if he were to make the final appointment.

164There can, in this view,

165 be no difference between nominating and appointing.

166The same motives which would influence

167 a proper discharge of his duty in one case,

168 would exist in the other.

169And as no man could be appointed

170 but on his previous nomination,

171 every man who might be appointed would be, in fact,

172 his choice.

173But might not his nomination be overruled?

174I grant it might,

175 yet this could only be to make place

176 for another nomination by himself.

177The person ultimately appointed

178 must be the object of his preference,

179 though perhaps not in the first degree.

180It is also not very probable

181 that his nomination would often be overruled.

182The Senate could not be tempted,

183 by the preference they might feel to another,

184 to reject the one proposed;

185 because they could not assure themselves,

186 that the person they might wish

187 would be brought forward

188 by a second or by any subsequent nomination.

189They could not even be certain,

190 that a future nomination would present a candidate

191 in any degree more acceptable to them;

192 and as their dissent might cast a kind of stigma

193 upon the individual rejected,

194 and might have the appearance of a reflection

195 upon the judgment of the chief magistrate,

196 it is not likely that their sanction

197 would often be refused,

198 where there were not special and strong reasons

199 for the refusal.

200To what purpose then require

201 the co-operation of the Senate?

202I answer, that the necessity of their concurrence

203 would have a powerful, though, in general,

204 a silent operation.

205It would be an excellent check

206 upon a spirit of favoritism in the President,

207 and would tend greatly to prevent

208 the appointment of unfit characters

209 from State prejudice, from family connection,

210 from personal attachment,

211 or from a view to popularity.

212In addition to this,

213 it would be an efficacious source of stability

214 in the administration.

215It will readily be comprehended,

216 that a man who had himself

217 the sole disposition of offices,

218 would be governed much more

219 by his private inclinations and interests,

220 than when he was bound to submit

221 the propriety of his choice

222 to the discussion and determination

223 of a different and independent body,

224 and that body an entier branch of the legislature.

225The possibility of rejection

226 would be a strong motive to care in proposing.

227The danger to his own reputation,

228 and, in the case of an elective magistrate,

229 to his political existence,

230 from betraying a spirit of favoritism,

231 or an unbecoming pursuit of popularity,

232 to the observation of a body

233 whose opinion would have great weight

234 in forming that of the public,

235 could not fail to operate as a barrier

236 to the one and to the other.

237He would be both ashamed and afraid to bring forward,

238 for the most distinguished or lucrative stations,

239 candidates who had no other merit

240 than that of coming from the same State

241 to which he particularly belonged,

242 or of being in some way or other

243 personally allied to him,

244 or of possessing the necessary insignificance

245 and pliancy

246 to render them the obsequious instruments

247 of his pleasure.

248To this reasoning it has been objected

249 that the President, by the influence

250 of the power of nomination,

251 may secure the complaisance

252 of the Senate to his views.

253This supposition of universal venality in human nature

254 is little less an error in political reasoning,

255 than the supposition of universal rectitude.

256The institution of delegated power implies,

257 that there is a portion of virtue

258 and honor among mankind,

259 which may be a reasonable foundation of confidence;

260 and experience justifies the theory.

261It has been found to exist

262 in the most corrupt periods

263 of the most corrupt governments.

264The venality of the British House of Commons

265 has been long a topic of accusation against that body,

266 in the country to which they belong

267 as well as in this;

268 and it cannot be doubted

269 that the charge is, to a considerable extent,

270 well founded.

271But it is as little to be doubted,

272 that there is always a large proportion of the body,

273 which consists of independent

274 and public-spirited men,

275 who have an influential weight

276 in the councils of the nation.

277Hence it is

278 (the present reign not excepted)

279 that the sense of that body is often seen

280 to control the inclinations of the monarch,

281 both with regard to men and to measures.

282Though it might therefore be allowable to suppose

283 that the Executive might occasionally influence

284 some individuals in the Senate,

285 yet the supposition,

286 that he could in general purchase the integrity

287 of the whole body, would be forced and improbable.

288A man disposed to view human nature as it is,

289 without either flattering its virtues

290 or exaggerating its vices,

291 will see sufficient ground of confidence

292 in the probity of the Senate,

293 to rest satisfied,

294 not only that it will be impracticable

295 to the Executive to corrupt or seduce

296 a majority of its members,

297 but that the necessity of its co-operation,

298 in the business of appointments,

299 will be a considerable and salutary restraint

300 upon the conduct of that magistrate.

301Nor is the integrity of the Senate the only reliance.

302The Constitution has provided some important guards

303 against the danger of executive influence

304 upon the legislative body:

305 it declares that

306 "No senator or representative shall during the time

307 FOR WHICH HE WAS ELECTED,

308 be appointed to any civil office

309 under the United States,

310 which shall have been created,

311 or the emoluments whereof

312 shall have been increased,

313 during such time;

314 and no person, holding any office

315 under the United States,

316 shall be a member of either house

317 during his continuance in office."

318PUBLIUS.