Federalist No. 70

Federalist No. 70, titled "The Executive Department Further Considered", is an essay written by Alexander Hamilton arguing for a single, robust executive. It was originally published on March 15, 1788, in The New York Packet under the pseudonym Publius as part of The Federalist Papers and as the fourth in Hamilton's series of eleven essays discussing executive power.
Hamilton argues that unity in the executive branch is a main ingredient for both energy and safety. Energy arises from the proceedings of a single person, characterized by, "decision, activity, secrecy, and dispatch," while safety arises from the unitary executive's unconcealed accountability to the people.
Hamilton described the subject of Federalist 67-77 as a "survey of the structure and powers of the executive department". The main subject of papers 70-77 is Hamilton's defense of a vigrous Executive. Offering a counterpoint to the view that "a vigrous executive is inconsistent with the genius of republican government", Hamilton proclaims "Energy in the executive is a leading character in the definition of good government". Hamilton illustrates the argument for a unitary executive with examples from the Classical period. Though Hamilton does not provide a specific definition for "executive power", the inclusion of "unity" is widely understood to be a reference to the Vesting Clause. Federalist No. 70 does not go into detail about the separation of powers.
In Federalist No. 70, Hamilton cites an influential but lesser-known writer Jean-Louis de Lolme to support his argument that a unitary executive will have the greatest accountability to the people.
Harvey Mansfield speculated that Hamilton's persuasive argument about "politicians and statemen who have been the most celebrated for the soundness of their principles and [...] have declared in favor of a single executive and a numerous legislature" may have also included philosophers such as David Hume, John Locke and Montesquieu.
During the Constitutional Convention in May 1787, Hamilton proposed a plan of government, dubbed the "British Plan," featuring a powerful unitary executive serving for life, or during good behavior. Though this plan was rejected, James Wilson's proposal for a unitary executive, which Hamilton supported, was upheld with a vote of seven to three. As part of the Federalists' effort to encourage the ratification of the Constitution, Hamilton published Federalist No. 70 to convince the states of the necessity of unity in the executive branch.
Hamilton anticipates and refutes the argument that a unitary executive is too similar to the British monarchy. Federalist No. 70 defends the unitary executive as essential to protecting the United States from foreign attack and factional strife. In contrast to Federalist 68's description of the Office of the Presidency as a "trust...confided" by the mechanism of elections, Federalist 70's emphasis is on the unitary structure of the executive. The strong executive must be unitary, Hamilton says, because strength depends on energy, and energy derives from unity. The structure and powers of the chief executive give way to the necessity of an energetic executive.
Alexander Hamilton writes that energy in the executive is "the leading character in the definition of good government." Hamilton lists four ingredients that constitute this energy: unity, duration, an adequate provision for its support (salary) and competent powers.
According to Hamilton, unity contributes to energy by permitting necessary "decision, activity, secrecy, and dispatch" in the executive branch. Hamilton argued that "decision, activity, secrecy, dispatch" are weakened or diminished when power is shared by multiple leaders.
The core argument of Federalist No. 70 was that a unitary executive was a necessary ingredient for a quick, decisive executive to conduct war. Hamilton stressed the capability of the United States to respond to foreign attacks and aggression.
Hamilton, in response to opponents of the unitary executive, argues in Federalist No. 70 that a plural executive leads to a lack of accountability. Hamilton bolsters his argument by claiming that misconduct and disagreements among members of the council of Rome contributed to the Roman Empire's decline. He warns that America should be more afraid of reproducing the plural executive structure of Rome than of the "ambition of a single individual."
According to Hamilton, a unitary executive is best-suited to promoting accountability in government because it is easier to point blame at one person than to distinguish fault among members of a group. Because a unitary executive cannot "cloak" his failings by blaming council members, he has a strong incentive towards good behavior in office. Hamilton concludes the essay by reminding us that "the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution."
Hamilton also makes the case for duration, meaning a presidential term long enough to promote stability in the government.
While Hamilton elaborates on the importance of duration in Federalist No. 73, he argues briefly in Federalist No. 70 that the prospect of more time in office will motivate a president to act in concert with the views of the public. Hamilton claims that "safety in the republican sense" depends on "duration" because a unitary executive structure promoting energy in the executive is only safe if the possibility of re-election gives the executive a strong incentive to make policy in conformity with public opinion.
Hamiltonian support can be defined as a presidential salary, which insulates government officials from corruption by attracting capable, honest men to office. According to Hamilton, public service does not provide men with fame or glory, so ample pay is necessary to attract talented politicians. Hamilton further expands upon his arguments for executive support in his essay Federalist No. 73.
Scholars have differing views on the president's competent powers. Proponents of the Unitary Executive Theory assert that all executive power is vested in the president, and that the President has "unilateral authority, impervious to congressional or judicial scrutiny." Conversely, others read Article II of the United States Constitution as an "empty grant" that does not explicitly give the President the power to execute the laws.
Resistance to a "supreme executive magistracy" began well before the emergence of the Anti-Federalist Papers. The Continental Congress and Articles of Confederation did not establish a separate executive branch. In a reaction to colonial rule, most state constitutions were primarily concerned with a declaration of rights and weakening executive power. The veto power was treated with suspicision; only two states allowed it.
During the Constitutional Convention in 1787, several delegates opposed the unitary executive first recommended by James Wilson, and supported by Hamilton. Upon an invitation to dissent from Benjamin Franklin, who served as President of Pennsylvania's executive council, Roger Sherman of Connecticut stated his preference for the executive to be appointed by and directly accountable to the legislature, regardless of whether it was to be unitary or plural. Before the vote to approve the unitary executive, Sherman also commented that advisory councils in the majority of the states and even in Great Britain served to make the executive acceptable to the people.
Edmund Randolph, who had presented the Virginia Plan, was the most outspoken opponent of the unitary executive, arguing that it would be unpopular with the people and could easily become monarchical. He warned against using the British government as a model for the Constitution, noting that energy, dispatch, and responsibility could be found in three men drawn from three different regions of the country just as well as in one. The single executive was nonetheless approved by a vote of 7 to 3.
Later in the convention, Hugh Williamson of North Carolina stated his preference for Randolph's suggestion that executive power be shared between three men representing three regions into which the states would be divided. He argued that this triumvirate would be the best way to assure that neither the Northern nor the Southern states' interests would be sacrificed at the expense of the others'.
While most of the Anti-Federalists' arguments did concern the presidency, some Anti-Federalist publications did directly contest Hamilton's position in Federalist 70 for unity in the executive branch.
In response to the exclusion of an executive council in the Constitution, Mason published his "Objections to the Constitution" on November 22, 1787, in the Virginia Journal. In this manuscript, originally written on the back of an early draft of the Constitution, Mason warned that the lack of a council would make for an unadvised president, who would act within the interests of friends, rather than the people at large:
Richard Henry Lee, another prominent Anti-Federalist, exchanged letters with Mason, in which he too expressed concern about the unitary executive, supporting the constitutional addition of a privy council. In Anti-Federalist No. 74, titled "The President as a Military King," Philadelphiensis (likely, Benjamin Workman) wrote primarily against the president's military powers, but added that the lack of a constitutional executive council would add to the danger of a powerful presidency:
On December 18, 1787, after the Convention of Pennsylvania, which ultimately ratified the Constitution, the minority published its reasons for dissent to its constituents. In this address, written most likely by Samuel Bryan and signed by twenty-one members of the minority, the lack of an executive council is enumerated as the twelfth of fourteen reasons for dissent:
Though he was in England at the time of the Anti-Federalist Papers, Thomas Paine, whose pamphlet Common Sense served as motivation for independence from British rule during the American Revolution, also opposed the unitary executive. While this position was already evidenced from his role as Clerk to the Pennsylvania Assembly during the writing of Pennsylvania's 1776 Constitution, he clearly stated it in a letter to George Washington in 1796. In this letter, Paine argued for a plural executive on the grounds that a unitary executive would become head of a party and that a republic should not debase itself by obeying an individual.
Because Federalist No. 70 argues for a strong, unitary executive, it has often been used as a justification for expanding executive and presidential power, especially during times of national emergency. For example, scholars have argued that Federalist No. 70 influenced:
As the Bush Administration's Deputy Assistant Attorney General, John Yoo argued that "centralization of authority in the President alone", meaning the Constitution's vesting of executive power in a single president by Article II of the United States Constitution, ensured a "unity in purpose [...] where a unitary executive can evaluate threats, consider policy choices, and mobilize military and diplomatic resources with a speed and energy that is far superior to any other branch."
Yoo has also cited Federalist No. 70 in his support of the President's right to unilaterally conduct operations against terrorists without congressional consent. He claims that this power applies to operations against both individuals and states.
President George W. Bush explicitly invoked the discourse of Federalist No. 70 in declaring that he was allowed to operate outside of the law when it conflicted with his prerogatives as the head of "the unitary executive branch." For example, when signing the 2005 Detainee Treatment Act, Bush applied Hamilton's unitary executive theory to claim the right to work outside the provisions of the Act when they conflicted with his responsibilities as Commander in Chief.
President Obama has also used signing statements to expand his executive power, specifically by issuing a 2011 statement on an omnibus year-end spending bill. It has been speculated that this statement was made to nullify provisions of the bill that limited Obama's ability to deal with prisoners at Guantanamo Bay, thus expanding Obama's executive power. This action has been explicitly compared to Bush's 2005 signing of the Detainee Treatment Act.
Critics of the Bush Administration have argued that any executive, as envisioned by Alexander Hamilton in Federalist No. 70, must act within the limits imposed by other provisions of the United States Constitution and that the concept of the unitary executive does not allow the president to work outside laws passed by Congress, even when they conflict with national security interests. President Bush could have asked Congress to amend the Foreign Intelligence Surveillance Act or retroactively obtained warrants under the existing law. His decision to conduct warrantless electronic surveillance in secret was criticized by his own staff and Attorney General John Ashcroft. President Obama has been similarly criticized for operating outside the law, despite statements at the beginning of his presidency which showed a desire to limit the use of signing statements to expand executive power.
Recently, Federalist No. 70 has become associated with Unitary Executive Theory, and has been invoked to support the claim that the president should have primary responsibility over the entire executive branch. This theory was particularly relevant to Justice Antonin Scalia's 1988 dissent in the Supreme Court Case Morrison v. Olson, in which he argued that an investigation of the executive branch by independent counsel was unconstitutional because criminal prosecution was purely an executive power, held in its entirety by the president. Scalia also cited Federalist No. 70 in his decision on Printz v. United States. Printz v. United States concerned the constitutionality of the Brady Handgun Violence Prevention Act, a federal law that would have obligated state law enforcement officers to help enforce federal gun regulations. Scalia argued:
Federalist No. 70 has been cited in several Supreme Court dissents as a justification for the expansion of executive power. For example, in his 1952 dissenting opinion in Youngstown Sheet & Tube Co. v. Sawyer, chief justice Fred M. Vinson wrote:
Vinson referenced Federalist No. 70's arguments about energy in the executive to argue that the president should be allowed to seize private property in a time of national crisis. In a more recent 2004 case, Hamdi v. Rumsfeld, Justice Clarence Thomas used Federalist No. 70 to make the case that the president should have the power to suspend Habeas Corpus for American citizens in order to fight the war on terror.
In both cases, the majority of the court was not persuaded that the expansions in executive power in question were justified.
Federalist No. 70 has also been cited by the Supreme Court as an authority on the importance of presidential accountability. In its 1997 opinion in Clinton v. Jones, the court weighed whether or not a sitting president could delay addressing civil litigation until the end of his or her term. The court cited Federalist No. 70, stating that the president must be held accountable for his or her actions, and thus cannot be granted immunity from civil litigation. However, in the 2010 case of Free Enterprise Fund v. Public Company Accounting Oversight Board, the court cited the need for executive accountability as a basis to expand presidential power. Writing the majority opinion, Chief Justice John Roberts stated:
Roberts argued that the act in question deprived the president of the ability to hold members of an independent board accountable, thus freeing him or her of responsibility over the independent board's actions and depriving the people of their ability to hold the president accountable.