On this day in 1788, Federalist Paper No. 77 is published. Publius wraps up his discussion of the executive power. It’s the last paper that he will write for a while (but see logistical note below).
Publius is still addressing the appointment power, which is split between the President’s power to nominate and the Senate’s power to consent. Does the President have “undue influence over the Senate”? Or perhaps the other way around?
Publius finds the first argument silly. The President can’t be improperly controlling a body that has been given the power to restrain him. “This is an absurdity in terms,” Publius concludes.
But can the Senate unduly influence the President? Publius thinks not. The President is merely being restrained in an appropriate way—“precisely what must have been intended” in our system of checks and balances. He reiterates points that he also made in the prior paper: “The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils.” In other words, we have the benefits that arise from holding a single person responsible for making good choices. But we are also protected from potential abuses of that power, which could happen if the President were left completely unrestricted.
Moreover, we would not be better off if we gave this power to the Senate. Allowing a body such as the Senate to have the entire power of appointment will result in “cabal and intrigue.” And, obviously, the House would be even worse than the Senate: It is a “body so fluctuating and at the same time so numerous, [that it] can never be deemed proper for the exercise of that power.”
The final remaining powers of the Executive are not controversial, so Publius does not feel the need to address them at length. Who can object to a “state of the Union” or allowing the President to recommend “such measures as he shall judge expedient” and other, similar powers?
The only remaining question, Publius concludes, is whether all these presidential powers are structured in such a way that the safety of the people is protected. “The answer to this question,” Publius writes, “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.”
Hmmm. I am wondering how many Presidents these days really fear impeachment and conviction.
Logistical note for those who care:
You may recall that the Federalist Papers originally appeared as a series of essays published in various New York newspapers. These essays were later bound together and sold in volumes. Federalist No. 77 was the last essay to appear first as a newspaper article. So where did the remaining Federalist Papers (nos. 78 through 85) come from?
The first volume of the Federalist was released on March 2. It contained the first 36 essays. The second volume of the Federalist was published on May 28. It contained the remaining papers plus all the new essays. Thus, while Federalists 78 through 85 were later published in newspapers, their first appearance was in that bound volume released at the end of May. Since there is no way that I can post 8 summaries of the last 8 Federalist Papers all on May 28, I am going to do one a week from now until May 28. The last one will appear on schedule.