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The Federalist Papers: No. 67

On this day in 1788, Federalist Paper No. 67 is published. Alexander Hamilton (a.k.a. “Publius”) turns his attention to the constitutional provisions made for the President.

Publius feels compelled to immediately address the presidential power to make recess appointments during Senate vacancies. Kind of interesting, isn’t it? If he were going sequentially, he would have addressed presidential election first and gotten to this issue of recess appointments later. But people at the time were worried about this particular power and the prospect of a too-powerful executive.

Hmm. Perhaps they would not be surprised by some of our modern disputes on this subject?

Publius thinks that the Constitution’s opponents are preying upon the “aversion of the people to monarchy.” But the President created by the Constitution is not the same as the King of Great Britain.

The Constitution provides a “general mode of appointing officers of the United States.” People feared that the President would try to appoint Senators. Publius finds that ridiculous. “The first of these two clauses,” Publius notes, “only provides a mode for appointing such officers, ‘whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW.’” Obviously this cannot include Senators because Article I of the Constitution already provides for their election. Moreover, the secondary, back-up mode (the recess appointment power) is “nothing more than a supplement” to the first clause.

The reason to have a recess appointment power—at all—was not to change the basic rule. But, Publius observes, it would have been “improper to oblige this body to be continually in session for the appointment of officers.” Thus. the President is given power to fill vacancies during a senatorial recess because “it might be necessary for the public service to fill [some vacancies] without delay.”

Given that the Senate is rarely in recess for an extended period of time these days, you have to wonder if there is EVER really a time when a vacancy must be filled by the President “without delay”? Would the Founders include this clause today?

Publius concludes by noting that the constitutional power is analogous to provisions that occur in some state constitutions as well.

Logistical note for those who care:

You will see various publication dates for this paper. I’ve gone with the one in the Hamilton Papers.