Thoughts from the Middle

What Would Hamilton, Jay and Monroe Think of Our President’s Statements Regarding His Self-Appointed Victory?

By Robert James Fischer

Introduction

As the presidential election draws to a conclusion, two opposing views of the executive branch of the government are being presented by our two candidates.  On one hand, President Trump talks about curbing the vote in some states, but extending it in others.  On election night, he went on national television to declare that he had won when his electoral vote was nowhere near the 270 needed for victory.  Over his almost four years in office, he has repeatedly claimed powers for the Executive Branch that are not there.  In addition, his rhetoric has empowered radical right groups, often resulting in rioting or other violence.  On the other hand, former Vice President Biden is presenting himself as a person who will govern as a national president, not a democratic politician.  It is too early to know whether he will work within the confines of the executive branch as defined in our Constitution or seek to expand its powers. However, his years as a representative and senator would indicate that he believes in a representative government, not a closely executive controlled organization.

The apparent differences between the two candidates caused me, as an historian, to consider what our founding fathers intended.  While I could refer to the Constitution or the Declaration of Independence, the best source of information is perhaps the Federalist Papers.  This series of essays approached a variety of topics that were significant in the debate about the proposed Constitution and what our nation would become.  There are 85 essays, written under the name Publius.  In reality, the authors were Alexander Hamilton, John Jay, and James Monroe, with Hamilton writing the majority of the essays.

The Executive Branch and the President

Before considering the presidency, the Constitution makes it clear that our founding fathers considered the legislative branch the most significant.  While they envisioned a strong executive branch, they did not want an executive branch that resembled the English monarchy.  Therefore the executive branch is covered in Article II, not Article I.  The Constitution limits the term of the President to four years.  Under oath the President swears to “preserve, protect and defend the Constitution. . . “

Article II gives the President the following powers:

• To be the Commander in Chief
• To seek opinions from his Executive Cabinet members
• To grant reprieves and pardons for offenses against the United States, except for cases of Impeachment
• To make treaties with the advice and consent of the Senate
• To nominate ambassadors, other public ministers and cousuls [sic], judges of the Supreme Court, and all other officers of the United States, with the consent of the Senate
• To appoint inferior officers such as courts of law or head of departments if such power is given by Congress
• To report on the state of the Union to Congress
• To make recommendations to Congress
• To convene both Houses in cases of disagreement between them
• To receive Ambassadors and other public ministers
• To commission all officers of the United States
• To make sure that the laws passed by Congress are faithfully executed

These are the only powers granted to the Executive by the Constitution.

The Federalist Papers and the Executive

In the paper, “The Real Character of the Executive,” one of 11 essays that discussed the executive powers and limitation, Publius explained that the President would not be like the King of England.  The President would be inferior to a king.  In this text, Hamilton (Publius) discussed each of the above powers, reiterating that while the President (executive) has powers, they are constrained by the Senate or Congress.  In the next essay, Hamilton argued for an executive that was sufficiently independent yet sufficiently controlled. He argued that an appropriate balance in government could only exist when each branch had enough autonomous power so that tyranny of one branch over the other could not occur.

In addition to the above Constitutional granted power in Article II, the President also has the power to veto legislation as granted in Article I.  Hamilton supported this power, arguing that it provides stability by preventing “excess of lawmaking.”  Madison also supported Presidential veto and judicial review as granted in a separation of powers, so that each branch could act independently for the benefit of the country.

However, others opposed an executive not constrained by an advisory board which would have powers to check executive decisions.  Persons like George Mason and Richard Henry Lee were prominent in opposing a strong executive branch, and began publishing the Anti-Federalist Papers. Yet the executive branch as envisioned by Hamilton prevailed. 

Executive Power Expansion

A result of Hamilton’s argument in favor of a powerful, yet constrained, chief executive has led to the expansion of executive powers, especially in the area of national security.  Over the past few administrations, beginning with President Bush following 9/11, the use of executive power and Executive Orders has increased.  There are those who believe that this unitary power is essential.  They argue that Congress is designed for deliberation, while the executive branch is designed for action. 

Executive Constraint

While Hamilton favored a powerful executive, he believed that the executive branch needed to be constrained by the limits imposed by the Constitution.  The President is not allowed by the Constitution to work outside the law, whether established by the Constitution or passed by Congress.

Back to the Question

Given the preceding discussion, it is apparent that President Trump has been acting beyond his Constitutional given powers.  He does not have the authority to use his office for political promotion.  He does not have the power to make unilateral decisions regarding issues such as climate change or treaties.  While he can negotiate, the ultimate authority is clearly given to Congress. 

How President elect Biden will handle these contentious issues is yet to be seen.  Will he seek civil discourse and compromise or will he revert to Executive Orders?

His choice will likely be influenced by whether the legislative branch chooses to work with him, as our founding fathers envisioned, or work to obstruct him. Hopefully, Congress and the President will find common ground which reflects a compromise of what “we the people” want.