Summary and Analysis
Section XI: Need for a Strong Executive: Federalists No. 75-77 (Hamilton)
In Chapter 75, in the author's opinion, "one of the best digested and most unexceptionable parts" of the Constitution was the provision empowering the president to make treaties, but only "by and with the advice and consent of the senate . . . provided two-thirds of the senators present concur."
This would prevent an irresponsible president, whether from ambition, or avarice, or other motive, from negotiating and signing a treaty without due consideration. No treaty could go into effect until the Senate had discussed and debated it and given approval by a two-thirds vote.
A few minor objections had been raised to this provision. Some argued that approval in the Senate should not depend on a two-thirds vote of senators present, but on a two-thirds vote based on the entire membership of the Senate, which might be entirely different. Hamilton dismissed this argument as academic. The votes on this question should be those of the senators present, those who had taken pains to make sure that they would be present. For good reasons and bad, senators would often be absent on critical roll calls.
It had also been argued that the House of Representatives should share in the formation of treaties." Hamilton replied that the members of the House were too many and too diverse in their interests, that their two-year term of office was too short to expect of them any "accurate and comprehensive knowledge of foreign politics."
In Chapter 76, with the advice and consent of the Senate, the president was to have the power to nominate and appoint ambassadors, other public ministers, justices of the Supreme Court, and all other United States officers. However, Congress could, by law, "vest the appointment of such inferior officers as they think proper in the President alone, or in the Courts of law, or in the heads of departments."
Hamilton repeated what he had previously. said, that the "true test of a good government is its aptitude and tendency to produce a good administration." Surely, he said, almost everyone would agree that the proposed plan for making appointments would "produce a judicious choice" of men for filling offices. The president would have the sole responsibility of nominating men for higher office, but there was a check on him. His nominees could be rejected by the Senate, which would greatly tend to prevent the appointment of "unfit characters."
In Chapter 77, cooperation of the Senate in the matter of appointments would add to the stability of the administration. As the consent of the Senate would be necessary to displace as well as to appoint, a change of president would not occasion "so violent or so general a revolution in the officers of the government . . . if he were the sole disposer of offices." If a man had proved his fitness in any particular high office, a new president would hesitate to displace him and bring in someone "more agreeable to him" from fear of getting a rebuff in the Senate which would "bring some degree of discredit upon himself."
After arguing at some length (and more than a bit tediously) on the point that such an arrangement would not give the president "improper influence" over the Senate, nor the Senate over the president, Hamilton enumerated the remaining powers of the president, the chief being these: giving information to Congress on the state of the union, recommending to Congress what measures he judged to be necessary or expedient, and calling Congress into special session on extraordinary occasions.
He hoped he had demonstrated, said Publius, that the structure and powers of the executive department combined, "as far as republican principles would admit, all the requisites to energy." There was one more major consideration about the proposed constitution: "Does it also combine the requisites to safety in the republican sense — a due dependence on the people — a due responsibility?"
In these chapters Hamilton does well in elaborating on many great advantages to flow from the constitutional provisions encouraging and facilitating close co-operation between the president and the legislature, especially with the Senate, on such important matters as making treaties, making major appointments, and seating Supreme Court justices, among other things.