Federalist No. 70

Federalist Paper by Alexander Hamilton

Federalist No. 70, titled "The Executive Department Further Considered", is an essay written by Alexander Hamilton arguing for a single, robust executive provided for in the United States Constitution. 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.

Before ratifying the Constitution in 1787, the thirteen states were bound by the Articles of Confederation, which authorized the Congress of the Confederation to conduct foreign diplomacy and granted sovereignty to the states. By 1779, both Congress and the states had accumulated considerable debt from the Revolutionary War, but the Articles of Confederation denied Congress the powers of taxation and regulation of foreign and interstate commerce. Alexander Hamilton, along with many other Framers, believed the solution to this and problems of federal law enforcement could be solved with a strong general government. Alexander Hamilton greatly admired the British monarchy, and sought to create a similarly strong unitary executive in the United States. In Federalist No. 70, Hamilton cites De Lolme to support his argument that a unitary executive will have the greatest accountability to the people. Hamilton was also inspired by William Blackstone and John Locke, who favored an executive who would act on his own prerogative while maintaining respect for constitutional obligations. Montesquieu, Machiavelli, and Aristotle, all of whom argued for strength in the executive, also served as inspiration for the arguments in Federalist No. 70. 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.

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. He warns at the end of Federalist No. 70 that America should be more afraid of reproducing the plural executive structure of Rome than of the "ambition of a single individual." Hamilton also maintains that governmental balance can only be achieved if each branch of government (including the executive branch) has enough autonomous power such that tyranny of one branch over the others cannot occur.

Resistance to the unitary executive began well before the emergence of the Anti Federalist Papers. After the Declaration of Independence in 1776, eleven of the thirteen states established constitutions to replace their charter governments. Both Charles Pinckney of South Carolina and Gouverneur Morris of Pennsylvania had suggested advisory councils that would serve as a support rather than a check on the executive. 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: 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:

And to complete his uncontrolled sway, [the President] is neither restrained nor assisted by a privy council, which is a novelty in government. I challenge the politicians of the whole continent to find in any period of history a monarch more absolute. . 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:

<blockquote>12. That the legislative, executive, and judicial powers be kept separate; and to this end that a constitutional council be appointed, to advise and assist the president, who shall be responsible for the advice they give, hereby the senators would be relieved from almost constant attendance; and also that the judges be made completely independent. 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.

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:

This comprehensive grant of the executive power to a single person was bestowed soon after the country had thrown the yoke of monarchy Hamilton added: 'Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the law, to the protection of property against those irregular and high handed combinations which sometimes interrupt the ordinary course of justice ' It is thus apparent that the Presidency was deliberately fashioned as an office of power and independence. Of course, the Framers created no autocrat capable of arrogating any power unto himself at any time. 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. 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. 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.