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The Federalist Papers: No. 76

On this day in 1788, Federalist Paper No. 76 is published. Publius is continuing down his punch list of presidential powers. This paper covers the President’s power to nominate certain “officers of the United States.” It is a power that he shares with Congress. The President nominates, but the Senate offers “advice and consent.” Additionally, the Congress may make laws regarding the appointment of “inferior officers.”

The Constitutional Convention could have chosen from three different types of appointment: It could be “vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly.” A fourth option, selection by the people, is impractical in this instance.

Can you imagine going to the polls for EVERY judicial appointment, cabinet appointment, etc.? That does seem a bit crazy.

Publius argues that, given the alternatives, “one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men . . . .” When a “sole and undivided responsibility” is placed upon one man, Publius argues, we can expect this responsibility to give him a “livelier sense of duty” in the matter. He will work harder to be impartial and to name someone with the qualities needed. One man, by definition, has “FEWER personal attachments to gratify, than a body of men.”

By contrast, a body of men will be dominated by party and personal conflicts. Appointments would have more to do with partisan compromises than the “intrinsic merit of the candidate.”

Yeah, but I suspect we see some of that phenomenon in the Senate anyway, don’t we? And I wonder if that throws some of Publius’s next arguments into doubt.

Publius disagrees with those who would have placed the power of appointment only with the President. He notes that “every advantage to be expected from such an arrangement would in substance be derived from the power of NOMINATION.” Meanwhile, we can avoid disadvantages that might result from giving the President such an “absolute power.”

Nominations could be overruled, of course, but the Senate will never be able to put its own candidate into office. Publius believes that this fact, alone, will discourage many of the bad dynamics in the Senate. And he does not believe that nominations will be overruled too often because the Senate has no guarantee that it will like the next nominee any better than the first.

Well, why give the Senate a role at all, then? Publius argues that the “necessity of their concurrence would have a powerful, though in general a silent operation.” Basically? The “possibility of rejection” is a “strong motive” that keeps the President honest.

I suppose a lot of this makes sense when the federal government is generally smaller and the courts more restrained. But the more our federal government grows, the more politicized the Senatorial “advice and consent” function has become. You have to wonder what Publius would say about all this now.



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