The History Book Club discussion

This is the thread for the discussion of FEDERALIST. NO 69.

We thought we would skip ahead to this one and then we would go back (because of the events of 2020)

This paper is titled THE REAL CHARACTER OF THE EXECUTIVE.

This paper was written by Alexander Hamilton.

by Alexander Hamilton

Now we find ourselves on Federalist 69.

We are moving towards some of the more poignant essays regarding our times. We will of course go back to the others.

We will always continue to move on; but please also feel free to get caught up and post any of your thoughts on this paper and/or on any of the other papers which were assigned from weeks past.

There is a ton of stuff to discuss about Federalist Papers 1 - 15 even though we are opening up discussion on the next paper today and we are selecting some papers that are apropos to the current climate.

We have to keep moving no matter if it takes us 170 weeks of 340 weeks for the 85 essays and we will get them all read and completed with discussions.

Please feel free to post on any of the other 15 previous essays that we have worked very hard on - Federalist 1 - 15. And then try your hand at Federalist 69. The essays make for very interesting reading.

FEDERALIST No. 69

Federalist № 69
The Real Character of the Executive (Alexander Hamilton)

November 25th - December 7th but this is ON-GOING

Links to 69:

http://federali.st/69

You can also listen to them being read orally to you:

Federalist 69 audio:

LibraVox

http://www.archive.org/download/feder...

Federalist Papers - Access page - scroll down to the bottom:

A much better oral reading:

http://michaelscherervoice.com/federa...

How to conquer the Federalist Papers:

1. The first thing I would do is to read along with an audio recording for a quick pass through the paper for the first time. The audio helps you get through each essay and you can underline as you listen and read. Also it is best to tackle each essay one at a time. Do not try to read through all 85 essays without discussion - most folks have found that it is tedious and they do not get through the essays that way. Most colleges only tackle a handful of the papers and rely on students to read the others on their own.

2. The next thing that you should do is to do a deep dive: one paragraph at a time studying every facet of the essay. You are fortunate that we will do the researching for you and will journey with you as we tackle this project. One paragraph at a time until we get through the entire essay.

3. You should always be asking yourself the following questions:

a) Who wrote this essay? What was their background and who were they? What is their frame of reference? What are they trying to persuade me to believe and why and how are they trying to accomplish this? Is what they are saying true? If so, where is the supporting evidence? What are the arguments being made against this essay?

2. The Federalist Papers will give you an idea of why something in the Constitution is the way it is. However, be mindful that as we found in Federalist 14 - an item or two might not have made it into the Constitution and might have been voted down; so it might have been wishful thinking on the part of the essayist. However, so far - that has rarely been the case. So query, where in the Constitution is this fact and idea mentioned and how or why?

3. Try to understand the context under which the essay was written. Context is important to understanding anything you read, hear or see for that matter. How do you think it was received? Who opposed it and what were their viewpoints? Reflect upon both sides. Allow the Federalist Papers the opportunity to speak for themselves.

4. Look and ponder the meaning of the words being used and the arguments that the Founding Fathers are making. Possibly jot those down or underline them for further consideration.

5. You might want to go deep with a few supporting primary sources and then dabble by looking at some additional videos, listening to some podcasts or reading other material to support your views; but, at the same time, be sure not to block out any opposing ones for consideration - which may challenge your thinking. Challenging your thinking is positive and who knows you might change your mind or modify a position or be willing to compromise and see that others have a point of view that has merit.

6. You should ask yourself with each essay - what does the essay say - what is the essayist trying to tell me? Do I understand what the essayist is saying? What parts do I need more clarification on? What is the argument or the concept the Founding Fathers are proposing? What is the institution or proposal that they are defending? Why?

7. What does the essay mean to me? Do I know the meaning of all of the words used in the essay? If not, look them up as you are reading or listening. Words matter. Try to understand what are the major points or themes of each essay.

8. Why does this essay matter? How is it relevant to me? How is it relevant to the country? What has been the history of this essay? What was its impact at the time? What is its impact in history or what is its impact in our current environment and times? Have these ideas or sections of the Constitution been challenged? By whom? What was the outcome? Do I agree with these ideas? Do I agree with some and not others? What is the factual evidence for my beliefs? Are they grounded by solid facts, readings, primary sources? Why do they argue some aspects of the Constitution and not others? Sometimes what is omitted in a persuasive essay, speech or other commentary or document is as important as what it said, written or discussed. For example, the word slavery is never used outright in the Constitution even though - by the use and the meaning of some of the Constitution's language we certainly know what is being spoken of.

9. And, of course, the best way to tackle the Federalist Papers is in a group and among friends who will discuss with you their ideas and arguments - pro or con - in a respectful and civl way. There are no wrong answers and once you have made your point - move on to another. These threads are your group of friends. Here we will have a civil and a respectful discussion. There are no worries. So just jump right in and post. The more you post, the better the discussion. If the moderator needs to step in, they always will. Everyone should be respectful of each other and the moderator as if you were all sitting together in someone's living room having a nice discussion face to face. Act as if we knew who you are, where you lived and act as if you were a member of the family who we cared about. We care about each member in the History Book Club and we want everyone to feel comfortable.

10. Also, post - post - post.

Essay Overview and Summary - FEDERALIST. NO 69:

In this essay, Hamilton presents a lengthy comparison and contrast between the president's powers under the new Constitution and the power of the British king.

The president is elected by the people while the British monarchy is hereditary. The president is subject to impeachment for treason, bribery, or other "high crimes or misdemeanors," whereas the person of the king is sacred. The veto power of the president is limited, in that both houses of Congress may override a presidential veto by a two-thirds vote; by contrast the king possesses an absolute veto over acts of Parliament.

The president is commander-in-chief of the armed forces of the United States; the king, however, possesses significantly more military power in that he is authorized to declare war and to raise and maintain armies.

Likewise, in the areas of treaties, appointments, and pardons, the president is in every respect a less powerful governmental officer than the British king.

Hamilton adds that the president may, indeed, be more restricted in his constitutional powers than the governor of New York!

Source: Course Hero

Discussion Question:

1. What are some of your thoughts about the fact that the President in some respects is more restricted in his constitutional powers than the governor of New York or any governor for that matter?

COMMENTARY

Impeachment and High Crimes and Misdemeanors - Two Different Questions by Kenneth Kopf

The U.S. Constitution - Article 2, Section 4, “The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery or other high crimes and misdemeanors.”

Link: https://www.cnsnews.com/commentary/ke...

Discussion Question:

1. What is your viewpoint of the article in relation to Federalist. No 69? Do you agree with this article and the author's positions or not? Why or why not?

Fractured Into Factions? What The Founders Feared About Impeachment by Jessica Taylor

Source: NPR



As the Founding Fathers were drafting the U.S. Constitution, they were explicitly trying to avoid a repeat of the situation they had just fought a war to free themselves from — a ruler with unchecked power.

While they wrote a bare minimum about impeachment in the country's essential governing document, other writings from the time provide rich insights about their intentions.

In Federalist No. 69, Alexander Hamilton described impeachment essentially as a release valve from another "crisis of a national revolution." He and other Founders grappled with how best to execute such a check, and eventually they settled on the system we have today.

Trump Impeachment Inquiry

Even more than 230 years ago, they were eerily prescient in fearing how the impeachment process could play out: beset by partisanship and broken down by factions. Every impeachment proceeding so far — from Andrew Johnson to Bill Clinton and now President Trump — was split along those lines.

Why was impeachment so important to the Founders?

To understand the Founders' rationale for impeachment first requires an examination of their feelings about the presidency. Hamilton (yes, that one) actually wanted a more robust chief executive, but he did realize there needed to be some check on their power. That's why he would argue in The Federalist Papers for why impeachment should be included in the Constitution.

According to preeminent Hamilton biographer Ron Chernow, Hamilton was trying to protect the country from someone with demagogic tendencies. "From the outset, Hamilton feared an unholy trinity of traits in a future president — ambition, avarice and vanity," Chernow wrote last month in The Washington Post.

As Impeachment Inquiry Moves Into Open Phase, Here's What To Expect Next

He points to one of Hamilton's writings in 1792 where the Treasury secretary warns about someone who might exhibit those inclinations, and Chernow argues that it sounds a lot like the current occupant of the Oval Office:

"When a man unprincipled in private life[,] desperate in his fortune, bold in his temper . . . despotic in his ordinary demeanour — known to have scoffed in private at the principles of liberty — when such a man is seen to mount the hobby horse of popularity — to join in the cry of danger to liberty — to take every opportunity of embarrassing the General Government & bringing it under suspicion — to flatter and fall in with all the non sense of the zealots of the day — It may justly be suspected that his object is to throw things into confusion that he may 'ride the storm and direct the whirlwind.'"

Remainder of article:

https://www.npr.org/2019/11/18/779938...

Discussion Question:

1. Read the article and discuss any points you would like regarding current politics and the importance of the founders' words and concerns. Cite the article - lines - quotes - etc. so that we can understand readily your post. Remember to be civil and respectful.

Mississippi Business Journal

BEN WILLIAMS — You only thought no man was above the law

Note: These articles do not represent the views or viewpoints of the HBC. We are adding pertinent articles for the basis of debate, interaction and discussion.

Link: https://msbusiness.com/2019/11/ben-wi...

Discussion Question:

1. Do you agree with Ben Williams' interpretation of the powers of the presidency and what the founding fathers stated in Federalist. No 69? Why or why not? Remember to be civil and respectful of other members' points of view if different than your own.

The Biggest Question Facing Voters in 2020 by Elliot Williams - Article and Videos

The notion that the president's power has guard rails is not new; in 1788, Alexander Hamilton took pains in Federalist No. 69 to lay out all the reasons why the president is not, in fact, a king with absolute power over government.

Don't be fooled; the 2020 election isn't about the economy, or health care, or whether America is finally willing to stop holding female candidates to double standards about how "likable" they are.

(Well, it's maybe about that last one, but that's another story.)
To some extent, the election isn't even a referendum on President Donald Trump's performance as a leader. The key question voters are confronting in 2020 is simpler: Do rules matter?

The President's conduct reinforces for the public the false idea that rules and laws simply do not matter when you disagree with them (profoundly ironic from an individual who once branded himself the "law and order candidate"). Rules exist to provide a basic sense of order in society, and reasonable minds can differ about what a common set of laws and rules ought to be. For instance, any family that has agreed to modify one of the rules governing the board game Monopoly on game night can attest that sometimes it is OK for rules to be fluid. But the game works only when all parties recognize its basic framework. For the game to work, one Monopoly player cannot unilaterally decide to start playing three card monte and then attack the rules of Monopoly as "rigged" and a "witch hunt."

Link to the Remainder of the Article:

https://www.cnn.com/2019/11/05/opinio...

Discussion Questions:

What are your thoughts about this article and its basic premise? Feel free to cite quotes from this article and Federalist. No. 69 to support your basic premise or ideas. Do you agree with the article? Why or why not?

Source: CNN Opinion

The Egalitarian - Student Voice - Virginia Grant



"Sometimes, and it is happening with increasing frequency, I find that the average citizen possesses a profound lack of understanding regarding the most basic precepts of American democracy. Part of the blame rests in our education system. For generations we have passed on a revisionist history that, although false, is more widely accepted than the truth.

A standard textbook teaches that in Colonial and Early American times only white men of property could vote. While false students must learn this as fact to past the course and pass the course to earn a degree.

Acceptance of lies as acceptable alternative facts is the path to advancement. This perversion has led to our current state of free fall corruption.

I have heard endless debates regarding the intent of one passage or another in the Constitution. In most cases those issues could be easily resolved by reading the Federalist Papers. The Federalist Papers are a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788 and published in newspapers under the name “Publius. “The intent was to explain particular provisions of the Constitution in detail with the aim of convincing New Yorkers to ratify the proposed United States Constitution. They have since been compiled in several editions, one of which is available on the Congress.gov website, another in the Gutenberg.org site. They are not hard to find, any Google or Bing search will turn up a plethora of sites that offer full text versions of the Federalist Papers.
Now if anyone wants to hear the facts about the powers and responsibilities of the Presidency, before they go spouting impassioned opinions here is what Madison had to say in Federalist No. 69 as he compares the American President to the King of England.

The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.

Now this makes it clear that the President is not above the law.

That he does not have the right to unilaterally declare war. That he must work with the Legislature to make treaties and appointments to offices.

That he can make no rules concerning commerce or currency and does not have the King’s ability to lay embargos, coin money or establish markets.

It explicitly states that the President “has no particle of spiritual jurisdiction.” This was Madison’s summary of the powers of a periodical and elective servant of the people.

If we are to remain true to the spirit of the Constitution, and not just interpret its words to suit our intent, we must take the time to learn the intent behind its construction. It is not hard to find, nor is it an exceptionally long read. Unfortunately most of us are better informed of the governance issues in Westeros than in the foundations of the United States Government.

Source: The Egalitarian

Discussion Questions:

What are your thoughts about the article and the points highlighted which reflect the ideas cited in Federalist. No 69? Do you agree or disagree? Why or why not?

Trump's impeachment defense boils down to this: Treat me like a king

If he can't be indicted, and if he can dictate his own terms to Congress - as the White House counsel suggests - then the president is saying that he's something other than a president

Link to remainder of article:
https://www.washingtonpost.com

Source: The Washington Post

Discussion Questions:

1. What are your thoughts about the hypothesis of the article and its basic premise? Do you agree or disagree? Why or why not?
How does the article cite or reflect upon the ideas and writings of our founding fathers in Federalist. No 69? Try to be as specific as you can. Remember to be respectful and civil to those other members who might disagree with your viewpoint and vice versa.

Presidents aren't kings. Someone should tell Trump's legal team

If he says he's above the law. Congress has to rein him in.

Link to article: https://www.washingtonpost.com

Discussion Questions:

1. Reflect upon Federalist. No 69 and what Hamilton has to say about the Real Character of the Executive. What points does this article make which reflect upon this essay and what our Founding Fathers had to say? Try to be specific. Remember to be respectful and civil to those members who might disagree with your viewpoint and vice versa.

Source: The Washington Post

Please feel free to jump into the conversation any time.

I will continue to discuss this paper for a bit and then we will move on going to back to where we left off.

Let us begin with the text of Federalist Paper 69:

Federalist № 69
The Real Character of the Executive
To the People of the State of New York:

I proceed now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it. ¶1

The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York. ¶2

That magistrate is to be elected for four years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between him and a king of Great Britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between him and a governor of New York, who is elected for three years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of four years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of three years for a corresponding office in a single State. ¶3

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware. ¶4

Let us focus on the first four paragraphs:

"Federalist No. 69, Alexander Hamilton sought to explain the nature of the executive branch in order to address fears that the President would function as an elected monarch, the primary concern of Anti-Federalists.

The memory of British oppression was fresh in the mind of Anti-Federalists, and they were not ready to accept any new government that would resemble the English form of government.

Specifically, Hamilton "explained that the president's authority 'would be nominally the same with that of the King of Great Britain, but in substance much inferior to it.

It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy.

Hamilton seeks to counter claims that the president would be an “elective monarch” as the anti-federalists claimed.

Hamilton points to the fact that the president is elected, whereas the king of England inherits his position. The president furthermore has only a qualified negative on legislative acts—i.e. his veto can be overturned—whereas the king has an absolute negative.

Hamilton furthermore suggests that, in many respects, the president would have less powers over his constituents than the governor of New York has over his.

Hamilton structures his argument around a three-way comparison of the office of the presidency under the proposed constitution, the king of England, and the governor of New York. Hamilton’s chief concern is to counter claims that the president would have powers commensurate to the English monarch against whom Americans fought a war. He does this in a very specific and methodical way, taking a variety of issues and comparing the powers of the president and the king.

In order to make the argument more relevant to the people of New York, who Hamilton is addressing, he introduces a comparison between the president and the governor of New York as well. Surely, the people of New York would not claim that the president under the proposed constitution is an elected monarch if his powers are roughly commensurate to their own governor.

Hamilton structures his argument around a three-way comparison of the office of the presidency under the proposed constitution, the king of England, and the governor of New York. Hamilton’s chief concern is to counter claims that the president would have powers commensurate to the English monarch against whom Americans fought a war. He does this in a very specific and methodical way, taking a variety of issues and comparing the powers of the president and the king.

In order to make the argument more relevant to the people of New York, who Hamilton is addressing, he introduces a comparison between the president and the governor of New York as well. Surely, the people of New York would not claim that the president under the proposed constitution is an elected monarch if his powers are roughly commensurate to their own governor.

The president would be elected for a term of four years; he would be eligible for re-election. He would not have the life tenure of an hereditary monarch. The president would be liable to impeachment, trial, and removal from office upon being found guilty of treason, bribery, or other high crimes and misdemeanors. He would be accountable at all times to the country at large.

In addition, the president would have the power to pardon all offenders except those found guilty in an impeachment trial.

But since a president was to be elected every four years, he could not possibly become a "perpetual and hereditary prince" like the despised and "tyrannical" King George III.

It appears that this line is most appropriate to what we learned about impeachment this year:

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.

I think the key word is "afterwards" that he would be liable to prosecution and punishment in the ordinary course of the law. So Trump - 'unless impeached" will not be prosecuted or punished for anything that he does or might do until out of office either by being impeached or by not being re-elected.

I also thought it interesting that Hamilton called out that some governors are more "equal than others". That the power of the New York Governor stood on a better ground in terms of power, personal responsibility, than the governors of Maryland and Delaware. I also thought it was interesting phrasing to talk about the President as not only the President of the United States but also the President of the Confederated America!

According to Constituting America and Professor Knipprath - "He (Hamilton) chooses the latter for several reasons. First, the essays of Publius are written during the pendency of the New York and Virginia ratifying conventions and were obviously intended in the first instance to influence those closely-fought skirmishes.

Second, Hamilton was deeply involved in state politics as a member of the downstate faction that favored both the Constitution and, later, the Federalist Party. Though it is hard to believe today, New York City politically was, in many ways, a Tory town. It was a hotbed of Loyalist sentiment during the Revolutionary War, so much so that the British made it their headquarters. Hamilton was intimately familiar with the operation of his state’s government and, given the emerging significance of the city and state, would find New York’s system more important than others

Third, the governor of New York was a rather strong chief executive compared to the state governors at the time. Comparing the president’s powers favorably to those of a republican American state executive would resonate particularly well with the persuadable delegates by avoiding charges that comparing the prerogatives of the president to those of the British monarch was irrelevant to the cause, as no American king was to be crowned.

But there is one more reason. The governor of New York, George Clinton, was the presiding officer at the convention and a staunch Antifederalist. He was also a member of the upstate Albany faction politically opposed to Hamilton. Clinton is the likely author of potent attacks on the Constitution in “Letters of Cato.” Many historians believe that it was the publication of some of those letters that induced the Constitution’s supporters to organize the effort that became The Federalist. The executive was one of Cato’s particular concerns. In an essay published four months before Federalist 69, Cato labeled the president the “generalissimo of the nation,” assailed the scope of the president’s powers, compared those powers alarmingly with those of the king of Great Britain (especially the war power), and warned, “You must, however, my countrymen, beware that the advocates of this new system do not deceive you by a fallacious resemblance between it and your own state government [New York]….If you examine, you…will be convinced that this government is no more like a true picture of your own than an Angel of Darkness resembles an Angel of Light.” Hamilton had no choice but to respond.

The result is a brief comparative overview, the particulars of which do not matter much today, as the king’s prerogatives, already circumscribed then, are virtually non-existent now. The essay does provide an introduction to various powers of the president, most of which are in Article II of the Constitution. Hamilton will delve into greater detail of various of them over the course of Federalist 73 to 77.

What is significant for us is the dog that does not bark, the constitutional clauses that are not mentioned by Publius. Not long after the Constitution was approved, Hamilton used the occasion of Washington’s Neutrality Proclamation in 1793 to advance a broad theory of implied executive powers. His position, vigorously challenged by Madison during the Pacificus-Helvidius debates, was that the president has all powers that are not denied to him under the Constitution either expressly or by unambiguous grant to another branch. That approach has been used by subsequent presidents to fuel the expansion of executive power.

Article II is rather short, and the president’s powers few and specific. Beyond that, the boundaries are vague. It was broadly understood that George Washington would be the first president. The general recognition of his propriety and incorruptibility meant that he would have discretion to define the boundaries of the office. Indeed, Washington was expected to do so, and he was well aware of that responsibility. In addition to the oath of office, there are three clauses whose text suggests room for discretion. Those three, the executive power clause, the commander-in-chief clause, and the clause that the president “shall take Care that the Laws be faithfully executed,” have proved to be generous reservoirs of necessary implied executive powers.

Publius spends little time on the commander-in-chief clause, and essentially none on the others. He portrays the role of the president as if he would be confined to leading the troops in military engagements.

The executive power clause is the principal source for the president’s implied or inherent powers, those that the president’s detractors would disparagingly call royal or prerogative powers. The textual significance is that, while Article I says that, “All legislative powers herein granted shall be vested in a Congress …,” Article II declares that, “The executive power shall be vested in a President …”[italics added]. That affirmative grant to the president has to mean something, and –unlike Article I regarding Congress–it has to mean more than the powers mentioned later in the text. The question ever since has been, “Just what does it mean?” Presidents have massaged that ambiguity and the flexibility of the other elastic clauses mentioned to act unilaterally, as necessity demands, usually in military affairs, foreign relations, and national security matters. Executive unilateralism came under particular scrutiny by Congress, the courts, the academy, and the media during the Bush(43) administration, though interest in that topic has slackened since the election of 2008–perhaps not coincidentally.

Not surprisingly, as advocate for the Constitution’s adoption, Hamilton does not spend time defending, or even recognizing, the theory of implied executive powers that he embraced soon thereafter. The enumeration of specific limited presidential powers and Hamilton’s soothing interpretations in Federalist 69 do not give due credit to the possible sweep of the executive office. His next essay presents a more forthright defense of the need for an energetic executive." - (the above is from Constituting America and a blog written by Joerg Knipprath, Professor of Law at Southwestern Law School)

Discussion Topic:

What are your thoughts on the above (Paragraphs 1 - 4) and on Professor Knipprath's premise?

Sources: Wikipedia, Grade Saver, Cliffnotes, Constituting America, and The Powers of the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

The above completes the explanation of paragraphs 1 - 4 of 69

Here is Article II of the Constitution which was referred to in the essay by Professor Knipprath in the comment box above: - Section One

ARTICLE II

Executive Branch

Signed in convention September 17, 1787. Ratified June 21, 1788.

Portions of Article II, Section 1, were changed by the 12th Amendment and the 25th Amendment

Section 1

The executive Power shall be vested in a President of the United States of America. (This sentence is called the vesting clause)

He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. (These clauses discuss the Electoral College)

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chose by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chose the President. But in chosing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chose from them by Ballot the Vice President. (The 12th amendment superseded this clause; after the election of 1800 in which Thomas Jefferson and his running mate Aaron Burr, received identical votes and both claimed the office. After many votes the House of Representatives chose Thomas Jefferson and soon hereafter the amendment was speedily approved.)

The Congress may determine the Time of chosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. (The 25th amendment superseded this clause; regarding presidential disability, vacancy of the office, and methods of succession.)

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Source: The US Constitution

What is the Vesting Clause?

By Saikrishna B. Prakash and Christopher H. Schroeder

Mr. Prakash is the James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law at the University of Virginia School of Law.

Mr. Schroeder is the Charles S. Murphy Professor of Law and Public Policy Studies at Duke University Law School.

Article II, Section 1 begins: “The executive power shall be vested in a President of the United States.” At a minimum, this Vesting Clause establishes an executive office to be occupied by an individual.

At the Founding, the creation of a separate executive was hardly obvious.

The Articles of Confederation created no separate executive; duties that we associate with the executive were handled first by congressional committees and then by “Secretaries” or “Boards” under congressional direction.

Nor was it self-evident that one individual would stand at the apex of the executive. Several states had plural executives (executive committees) and the notion of a plural executive had its backers at the Philadelphia Convention.

Few could disagree that the Vesting Clause establishes a unitary executive in the sense that it creates a single executive President.

Throughout our Constitution’s history, some politicians, judges, and scholars have argued that this minimal sense exhausts the content of the Clause.

Others have argued that the Clause does more and actually grants the President “the executive power.”

In recent years, advocates of this latter view have identified their position with the label “Unitary Executive.” But this label is a bit misleading, for we would do well to remember that the idea that the Constitution establishes a unitary executive is perhaps universally shared, at least in the minimalist sense outlined above.

In this disagreement, two issues predominate. First, does the term “executive power” identify a set of powers beyond those expressly identified in the Constitution, but which are nonetheless given to the President by virtue of the Vesting Clause?

Vesting Clause minimalists often claim there was no settled meaning to the term at the time of the Founding and that “the executive power of the United States” refers only to those powers elsewhere assigned to the President.

The Unitary Executive position is that at the Founding “executive power” referred to a suite of powers, such as the powers to execute the law, appoint officers, communicate with foreign governments, formulate foreign policy, wage war, and the like. The Vesting Clause grants this entire suite to the President, subject to express limitations in the Constitution. The President may not appoint without securing the Senate’s consent, for instance, and Article I, Section 8, Clause 11 provides that the Congress shall declare war, with the implication that the President cannot.

Second, by “vesting” powers in a singular executive, does the Vesting Clause establish that the President may exercise those powers by himself, without interference by Congress, and, concomitantly, does it give the President the authority to direct and supervise any federal official involved in such matters? Advocates of the Unitary Executive position often assert that the President can exercise his constitutional powers without congressional interference and that he may direct executive officers. For their part, Vesting Clause minimalists tend to claim that Congress, through the exercise of its legislative powers including the Necessary and Proper Clause, can qualify or regulate the President’s exercise of powers that have not been clearly assigned to his sole discretion so long as Congress does not impede the President’s ability to discharge his constitutional duties.

Notice that neither the two Unitary Executive positions nor the two minimalist positions are necessarily linked to one another. One could conclude that the Vesting Clause minimalists have the better case on the first question while the Unitary Executives have the better view on the second, for example. Yet in practice, people often adopt one pair of related views or the other set.

These questions matter. In their purest forms the two understandings of the Vesting Clause—the minimalist and the Unitary Executive—imagine quite different allocations of power and institutional arrangements. If the Unitary Executive stance were to prevail, perhaps all of the independent agencies of the federal government, from the Federal Communications Commission to the Federal Reserve, would be unconstitutional because of congressional restrictions placed on the President’s authority to remove members of their commissions or boards. After all, these restrictions would be seen as unduly inhibiting the President’s ability to supervise and control. But if minimalists have the better reading of the Vesting Clause, what prevents Congress from granting removal protections to the entire bureaucracy, including such officials as the Secretary of State or the Attorney General? So long as it leaves the President the ability to ensure faithful execution of the laws, Congress might be able to radically refashion his relationship to departments long thought of as executive and under his supervision.

Judicial doctrine on these questions is mixed. The Court has, from time to time, endorsed the idea that the Vesting Clause vests powers independent of the rest of Article II. In a case involving presidential dismissal of a postmaster, Myers v. United States (1926), the Court claimed that the Vesting Clause granted authority to execute the law and to remove executive officials. In a decision from the late nineteenth century, In re Neagle (1890), the Court upheld the authority of the President to assign a federal marshal to protect a Supreme Court justice who had been threatened by a disgruntled litigant, despite the absence of any statute granting that authority. In United States v. Curtiss-Wright Export Corp. (1936), the Court famously announced that the President was the “sole organ of the nation in its external relations.” In the twenty-first century, the Court observed in American Insurance Ass’n v. Garamendi (2003) that the “historical gloss” on the executive power conferred upon the President the vast share of foreign affairs powers.

Yet in a series of removal cases, the Court has also approved congressional authority to insulate public officials from executive control. In a case involving the Federal Trade Commission, Humphrey’s Executor v. United States (1935), the Court held that Congress could limit the President’s ability to remove a commissioner. Similarly, in Morrison v. Olson (1988) the Court sustained a law that said the executive could remove independent prosecutors for just cause only. The law gave the President sufficient authority to ensure faithful execution, or so the Court held. And, it should be noted, the Court sometimes avoids resolving questions about the meaning of the Vesting Clause, choosing to rest its decisions on other grounds.

Arguments about the Vesting Clause surface whenever the government takes actions that might not fit squarely within existing understandings of how the Constitution separates powers. Can the President unilaterally terminate a treaty? Can the President resolve international disputes through agreements negotiated by him and then submitted to Congress for implementing legislation as needed, thus operating outside the Treaty Clause?

It is much more likely that the branches will reach provisional understandings on many of the disputed questions through the normal processes of politics than that the Supreme Court will cleanly and, once and for all, declare one or the other view correct. In part this is because similar results in many cases can be reached through statutory construction or reliance on other constitutional provisions, without reaching difficult Vesting Clause issues. In part it is because separation of powers questions often rely heavily on historical practices for their resolution.

More:

What Two Crucial Words in the Constitution Actually Mean
I reviewed more than a thousand publications from the founding era, and discovered that “executive power” doesn’t imply what most scholars thought. - June 2, 2019

Link:
https://www.theatlantic.com/ideas/arc...

Sources: The US Constitution, The Atlantic, The National Constitution Center

Here is Article II of the Constitution which was referred to in the essay by Professor Knipprath in the comment box above (message 14): - Section Two - II

Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. (This is called the Commander in Chief Clause)

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. (This clause discusses the Treaty and Appointments Power)

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Commander in Chief Clause

by Michael D. Ramsey
Professor of Law at the University of San Diego School of Law

and

by Stephen I. Vladeck
Dalton Cross Professor in Law at the University of Texas at Austin School of Law

The Commander in Chief Clause of Article II, Section 2 provides that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” As Justice Jackson put it in the Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer (1952)), “These cryptic words have given rise to some of the most persistent controversies in our constitutional history,” with Presidents at various points claiming that it “vests power to do anything, anywhere, that can be done with an army or navy.”

At a minimum, all agree that the Clause has two separate but related purposes: First, in response to the charge in the Declaration of Independence that the King had “affected to render the Military independent of and superior to the Civil Power,” it ensures civilian superintendence over the military—and, as such, the subordination of the military to civilian (and democratically accountable) control. Second, and in contrast to the experience under the Articles of Confederation, it places such civilian superintendence in the hands of a single person. As David Barron and Martin Lederman’s definitive academic study of the Clause explains, “the textual designation of the President as the Commander in Chief was intended to ensure that that officer, and no other, would be ultimately responsible for performing that role, whatever it was to entail.” To that end, they continue, the Clause “suggests that, at least with respect to certain functions, Congress may not (by statute or otherwise) delegate the ultimate command of the army and navy . . . to anyone other than the President.”

Although that principle, read narrowly, would only prohibit Congress from literally placing someone other than the President atop the U.S. military hierarchy, it presumably also means that Congress cannot insulate parts of the military from the President’s superintendence or interfere with the President’s supervisory role, lest Congress have the power to effectively undermine the President’s command authority—and, in Justice Jackson’s words, convert the Clause into an “empty title.”

Thus, as a case in point, Congress likely violated the Clause in an 1867 appropriations rider that sought to insulate Ulysses S. Grant—then the commanding general of the U.S. Army—from President Andrew Johnson by, among other things, requiring all orders to go through Grant (and voiding all orders that didn’t); precluding Grant’s removal by Johnson without Senate approval; and fixing Grant’s headquarters in Washington (where, presumably, he would be closer to Congress).

As a result of this superintendence principle, when Congress authorizes military operations (such as through a declaration of war), it necessarily puts the President in charge of them. Thus, as Chief Justice Chase explained in his concurring opinion in Ex parte Milligan (1866), the Commander in Chief Clause enshrines the President’s authority not just over “the command of the forces,” but also over “the conduct of campaigns.” And as Barron and Lederman explain, “more than 200 years of usage and court precedents reflect the view that the Commander in Chief Clause does confer broad substantive war powers on the President.”

A more difficult question is how much authority the Clause gives the President beyond operations approved by Congress. In the debates at Philadelphia, James Madison said that giving Congress the power to declare war would leave the President with power to repel sudden attacks. Presumably this power arises from the Commander in Chief Clause, read to convey independent substantive power to the President to direct the military on matters not related to war initiation. On this basis, Presidents have claimed authority over a range of military actions, including attacking pirates, rescuing U.S. citizens abroad, and making military deployments, although this authority is presumably circumscribed by other provisions of the Constitution and perhaps, some have argued, by international law.

In the Steel Seizure case, the Court rejected the President’s argument that the Clause empowered the President to seize steel mills in the United States to support the Korean War, and in Milligan, the Court rejected the argument that the Clause allowed the President to use military commissions to try civilians in areas where civilian courts were still operating. These cases indicate that the independent authority conveyed to the President by the Clause generally does not extend to interference with the rights and duties of U.S. civilians, at least outside the battlefield.

The most controversial aspect of the Clause is whether it limits Congress’s ability to enact statutes directing how military operations are conducted. For example, multiple Presidents have claimed that the War Powers Resolution, which limits the President’s ability to deploy troops into hostilities without Congress’s approval, is unconstitutional on this ground. After the terrorist attacks of September 11, 2001, the Executive Branch argued that, because of the Commander in Chief Clause, various statutory limits on the President’s authority were unconstitutional insofar as they, among other things, forbade the torture of detainees, warrantless surveillance, or the detention of U.S. citizens as enemy combatants. As a controversial 2002 government memorandum argued,

Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.

In Hamdan v. Rumsfeld (2006), the Supreme Court appeared to reject this argument in invalidating military tribunals created by President Bush to try non-citizen terrorism suspects. As Justice Stevens wrote for the majority, “[w]hether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” However, the scope of Hamdan remains unclear, and in 2015 President Obama suggested that a statute completely limiting his ability to transfer detainees from the military prison at Guantánamo might unconstitutionally infringe his Commander in Chief powers.

In sum, the Commander in Chief Clause gives the President the exclusive power to command the military in operations approved by Congress; it probably gives the President substantial independent power to direct military operations so long has the President does not infringe exclusive powers of Congress or other provisions of the Constitution; and it may (but may not) limit Congress’ power to pass statutes directing or prohibiting particular military activities.

Source: The National Constitution Center

Here is Article II of the Constitution which was referred to in the essay by Professor Knipprath in the comment box above (message 14): - Section Three - III

Section 3

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Here is the interpretation of Article II - Section III

by William P. Marshall
Kenan Professor of Law at the University of North Carolina

AND

by Saikrishna B. Prakash
James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law at the University of Virginia School of Law

Article II, Section 3 both grants and constrains presidential power. This Section invests the President with the discretion to convene Congress on “extraordinary occasions,” a power that has been used to call the chambers to consider nominations, war, and emergency legislation. It further grants the President the authority to adjourn Congress whenever the chambers cannot agree when to adjourn, a power that no President has ever exercised.

Section 3 imposes obligations on the President that are varied and significant. The President must provide information on the “state of the union” from “time to time.” This seems to require the President to share information with Congress. The President shall “recommend” measures to Congress, a soft duty that necessarily cedes discretion. The President “shall receive” all foreign ambassadors, a duty that many suppose grants Presidents authority over whether to recognize foreign nations and their governments. The President “shall Commission all the officers of the United States,” a Clause that forces the President to authenticate the status of federal officials.

Finally, and most significantly, Section 3 contains the Faithful Execution Clause, commonly known as the Take Care Clause. The Take Care Clause is arguably a major source of presidential power because it seemingly invests the office with broad enforcement authority. Yet, at the same time, the provision also serves as a major limitation on that power because it underscores that the executive is under a duty to faithfully execute the laws of Congress and not disregard them.

The Take Care Clause has played a central role in momentous constitutional disputes. Legislators have discussed it in many debates regarding the scope of presidential power, including whether the President has a constitutional power to remove federal officers. Two Presidents, Andrew Johnson and William Clinton, were impeached by the House, at least in part, for allegedly violating their Take Care Clause duties. Famous Supreme Court cases, like Youngstown Sheet & Tube v. Sawyer (1952) and Myers v. United States (1926), relied upon particular claims about the Clause. More recently the Clause played a central role in the debates and litigation surrounding President Barack Obama’s enforcement of federal immigration laws.

The Clause traces back to the 1776 Pennsylvania Constitution and the 1777 New York Constitution. Both granted their executives “executive power” and also required them to execute the laws faithfully. Early constitutional discussions shed some light on its meaning. Though the Clause is found amidst a sea of duties in Article II, Section 3, some, including Alexander Hamilton, spoke of the “power” of “faithfully executing the laws.” While President, George Washington observed, “it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to” that duty.

At a minimum, the Clause means that the President may neither breach federal law nor order his or her subordinates to do so, for defiance cannot be considered faithful execution. The Constitution also incorporates the English bars on dispensing or suspending the law, with some supposing that the Clause itself prohibits both. Hence the Constitution itself never grants the President authority to either authorize private violations of the law (issue individualized dispensations) or nullify laws (suspend their operation).

Beyond these constraints, the Clause raises a number of vexing questions. For instance, must the President enforce even those laws he or she believes to be unconstitutional? Some scholars argue that Presidents must enforce all congressional laws, without regard to his or her own constitutional opinions. Yet modern Presidents occasionally exercise a power to ignore such enactments on the grounds they are not true “laws” subject to the faithful execution duty. In so doing, they somewhat mimic the arguments and practice of President Thomas Jefferson, who refused to enforce the Sedition Act on the grounds that it was unconstitutional.

There is also the related question of whether the President must honor statutes that purport to limit his or her authority over law execution. Can Congress decree by statute that the President must allow others to implement certain statutes without regard to presidential supervision or oversight? Again, some suppose that the Congress can insulate execution from presidential control while others insist that the Congress cannot strip away the President’s duty.

Finally, the sweep of contemporary federal law ensures that federal law enforcers have tremendous enforcement discretion. In particular, resource constraints coupled with numerous violations often preclude a policy of total enforcement. Given the inevitable tradeoffs, modern Presidents weigh the costs and benefits of investigation, apprehension, and prosecution, and sometimes create rules for allocating scarce resources across the range of possible investigations and prosecutions. In this context, judging what counts as faithful execution is laden with value judgments about the relative merits of certain enforcement priorities over others. Moreover, contentious disputes about the scope of discretion invariably revolve around claims that the President has violated his or her duty of faithful execution by failing to adopt a particular enforcement policy or strategy.

Source: The National Constitution Center

Here is Article II of the Constitution which was referred to in the essay by Professor Knipprath in the comment box above (message 14): - Section Four - IV

Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. (This is the Impeachment Clause)

This is the interpretation of Article II -Section IV of the US Constitution.

by Neil J. Kinkopf
Professor of Law, Georgia State University College of Law

AND

by by Keith E. Whittington
William Nelson Cromwell Professor of Politics at Princeton University

"The final section of Article II, which generally describes the executive branch, specifies that the “President, Vice President and all civil Officers of the United States” shall be removed from office if convicted in an impeachment trial of “Treason, Bribery, or other high Crimes and Misdemeanors.” Two clauses in Article I lay out the role of the House of Representatives and the Senate in impeachments and in trials of impeachment. In practice, impeachments by the House have been rare, and convictions after a trial by the Senate even less common. Two Presidents, one Senator, one cabinet officer, and fifteen judges have been impeached, and of those only eight judges have been convicted and removed from office.

This sparse history has given Congress relatively few opportunities to flesh out the bare bones of the constitutional text. The Impeachment Clause was included in the Constitution in order to create another check against abuses by government officials and to give Congress the ability to remove from power an unfit officer who might otherwise be doing damage to the public good. Unsurprisingly, most “civil officers of the United States” who have found themselves damaged by scandal have preferred to resign rather than endure an impeachment. The House and Senate have refused to act on impeachment charges against individuals who were not then holding a federal office. The Senate early on decided that members of Congress should be expelled by their individual chambers rather than be subjected to an impeachment trial. Presidents have acted quickly to remove problematic members of the executive branch. As a practical matter, judges and Presidents have been the primary targets of impeachment inquiries.

Much of the controversy surrounding the Impeachment Clause has revolved around the meaning of “high Crimes and Misdemeanors,” a phrase that is unique to the impeachment context. The Clause seems to rule out the possibility of Congress impeaching and removing officials simply for incompetence or general unfitness for office. Impeachments are not a remedy for government officials who are simply bad at their jobs. It is a remedy for abuses of public office. But the line between general unfitness and abuse of office can be blurry.

The first Senate conviction in an impeachment trial was of a federal judge, John Pickering, who was charged with issuing rulings that were “contrary to his trust and duty as a judge” and “in violation of the laws of the United States,” as well as appearing on the bench “in a state of total intoxication” in a manner “disgraceful to his own character as a judge and degrading to the honor of the United States.” The judge’s son filed a petition with the Senate explaining the “real situation,” that his father “has been, and now is, insane.” The judge no longer had the mental capacity to commit high crimes. While the Senate preferred not to delve into that question in detail, it was uncomfortable voting on a resolution stating that the judge was “guilty of high crimes and misdemeanors.” The senators simply concluded that he was “guilty as charged,” and voted to remove him from office. The Senate was not anxious to say that Pickering had committed a crime, but neither was it willing to leave him on the bench.

While the Pickering case was idiosyncratic and awkward, it raised issues that remain unresolved about the scope of the impeachment power. Can a government official be impeached and convicted for innocent mistakes, or must they have bad intentions? Is it sufficient to justify an impeachment and conviction if a government official commits acts that are “disgraceful,” contrary to the “trust and duty” of their office, or “degrading to the honor of the United States,” or can impeachment only be justified when an official has committed criminal acts? Do “high crimes” include only criminal offenses for which one could be prosecuted in a court of law, or can they include other forms of misconduct? Are some violations of the law too trivial to be considered “high crimes” that would justify an impeachment? Can private misdeeds justify an impeachment, or must the actions in question be connected to the conduct of the office that an individual holds?

While still serving as a member of the House of Representatives, Gerald Ford once said that impeachable offenses are whatever a majority of the House considered them to be. The burden is on those who want to bring impeachment charges to persuade a majority of the members of the House of Representatives and two-thirds of the members of the Senate that an act is so serious as to justify removing an individual from office. The impeachment power is a tool that most members of Congress are unwilling to use if it can be avoided, but they have also wanted to preserve it as a tool that is flexible enough to be used in any exceptional circumstances that might arise."

Source: The National Constitution Center

Folks, when we get done with this paper (69) we will be going back to Federalist 16 - we had left off with 15. Due to the impeachment hearings, we decided to jump ahead to 69 to discuss the Executive Branch.

Let us move on to the next three paragraphs of the Federalist Paper 69.

The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor of New York, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied. ¶5

The President is to be the commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States. In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature. The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States. Thirdly. The power of the President, in respect to pardons, would extend to all cases, except those of impeachment. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited to levying war upon the United States, and adhering to their enemies, giving them aid and comfort; and that by the laws of New York it is confined within similar bounds. Fourthly. The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes. ¶6

The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utomst plentitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative. ¶7

First,

"In these paragraphs Hamilton makes the following arguments:

Hamilton makes the following comparisons: (according the Critical Skills Blog)

1. The president is elected for a specific term, whereas the king of England inherits his position for life;

2. The president has only a qualified negative on legislative acts—i.e. his veto can be overturned—whereas the king has an absolute negative;

3. Both the president and the king serve as commander in chief, but the king also has the power to raise and maintain armies—a power reserved for the legislature in America;

4. The president can only make treaties with the approval of the Senate. The king can make binding treaties as he sees fit;

5. The president can only appoint officers with the approval of the Senate, whereas the king can grant whatever titles he likes;

and

6. The powers of the president in terms of commerce and currency are severely limited, whereas the king is “in several respects the arbiter of commerce.”

In order to make the argument more relevant to the people of New York, whom Hamilton is addressing, he introduces a comparison between the president and the governor of New York as well.

Surely, the people of New York would not claim that the president under the proposed constitution is an elected monarch; if his powers are roughly commensurate to their own governor". (The above from the Critical Skills Blog)

Source: Critical Skills Blog

This podcast discusses the following in Federalist Paper 69 and covers paragraphs 5, 6 and 7 which we are discussing today.

This video examines Alexander Hamilton's arguments in Federalist Paper 69 concerning the powers of the president. He finds that there are adequate checks on the executive's power which will prevent the president from becoming a king.

Link: https://youtu.be/v_yiX42jhL0

Video by Professor Leckrone

Interesting video on impeachment and article from CBS News:

Can a president be indicted?

https://www.cbsnews.com/news/can-a-pr...

Source: CBS News

Folks at any time - please feel free to jump in and give your interpretation of anything regarding Federalist paper 69 or on any of the other threads for that matter that deal with the earlier papers we discussed 1 - 15.

I am sure that you have opinions at the very least on some parts of the papers so dig right in.

And as we continue - Let us move on to the next two paragraphs of the Federalist Paper 69.


The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor. ¶8

The President is to nominate, and, with the advice and consent of the senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination. If we compare the publicity which must necessarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of New York, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consists, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union. ¶9

These are some of Hamilton's arguments about the above:

To refute the notion that the executive branch would become a monarchy, allowing the President to put a person in any office, Hamilton wrote, "To nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of United States whose appointments are not in the Constitution otherwise provided for, and which shall be established by law." What this statement means is that the President of the United States can only nominate members as ambassadors, public ministries and consuls, Supreme Court judges and any other member that is not directly named in the Constitution currently or that will be named in the future without first consulting the Senate and then getting the Senate's approval of his nomination.

Recess Appointments
In a case where the President would have nominated a person to an office mentioned above, Hamilton creates a measure to ensure the President's choice will not be able stay in the office unless agreed upon by the Senate when he writes, "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." This sentence states that during an instance when the Senate is having recess and a vacancy occurs, the President can fill this vacancy without consulting the Senate but as soon as the recess is over the vacancy that was filled will be considered and possibly changed at the Senate's will.

Source: Wikipedia

Regarding the President's ability to receive Ambassadors and other public Ministers:

Louis Fisher wrote: "Article II, section 3 provides that the President “shall receive Ambassadors and other public Ministers.” From that language Presidents have claimed the exclusive right to recognize other governments, a power that has been widely exercised.

Does the express authority to receive ambassadors carry with it the right to recognize foreign governments?

In Federalist No. 69, Hamilton said this about the President’s authority to receive ambassadors and other public ministers: “This, though it has been a rich theme of declamation, is more a matter of dignity than of authority.”

Was Hamilton deliberately downplaying presidential power to build support for the Constitution?

Presidents have acknowledged limits to their power to recognize. President Andrew Jackson certainly a jealous defender of executive authority, refused to recognize the independence of Texas after it broke from Mexico in 1836. Both houses of Congress passed resolutions urging that the independence of Texas ought to be recognized by the United States, but Jackson decided not to take that step.

He believed that recognizing the independence of Texas could provoke war with Mexico and therefore invade the prerogatives of Congress. He advised: “Prudence, therefore, seems to dictate that we should still stand aloof and maintain our present attitude, if not until Mexico itself one of the great foreign powers shall recognize the independence of the new Government, at least until the lapse of time or the course of events shall have proved beyond cavil or dispute the ability of the people of that country to maintain their separate sovereignty and to uphold the Government constituted by them."

Source for the above:

by Louis Fisher (no photo)

This is very interesting: (from Justia - US Law)

The Conduct of Foreign Relations

SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

ANNOTATIONS

The Right of Reception: Scope of the Power

“Ambassadors and other public ministers” embraces not only “all possible diplomatic agents which any foreign power may accredit to the United States,”655 but also, as a practical construction of the Constitution, all foreign consular agents, who therefore may not exercise their functions in the United States without an exequatur from the President.

The power to “receive” ambassadors, et cetera, includes, moreover, the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws.

Furthermore, this power makes the President the sole mouthpiece of the nation in its dealing with other nations.

The Presidential Monopoly

Wrote Jefferson in 1790: “The transaction of business with foreign nations is executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate.

Exceptions are to be construed strictly.” So when Citizen Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, Jefferson informed him that “as the President was the only channel of communication between the United States and foreign nations, it was from him alone ‘that foreign nations or their agents are to learn what is or has been the will of the nation’; that whatever he communicated as such, they had a right and were bound to consider ‘as the expression of the nation’; and that no foreign agent could be ‘allowed to question it,’ or ‘to interpose between him and any other branch of government, under the pretext of either’s transgressing their functions.’

Mr. Jefferson therefore declined to enter into any discussion of the question as to whether it belonged to the President under the Constitution to admit or exclude foreign agents. ‘I inform you of the fact,’ he said, ‘by authority from the President.’ Mr. Jefferson returned the consul’s commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed.”

The Logan Act.—When in 1798 a Philadelphia Quaker named Logan went to Paris on his own to undertake a negotiation with the French Government with a view to averting war between France and the United States, his enterprise stimulated Congress to pass “An Act to Prevent Usurpation of Executive Functions,” which, “more honored in the breach than the observance,” still survives on the statute books.

The year following, John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the 27th article of the Jay Treaty, instead of leaving the business to the courts.

He said: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.”

Ninety-nine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall’s doctrine with elaboration.

A Formal or a Formative Power.—In his attack, instigated by Jefferson, upon Washington’s Proclamation of Neutrality in 1793 at the outbreak of war between France and Great Britain, Madison advanced the argument that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power “to declare war”

In support of this proposition he disparaged the presidential function of reception: “I shall not undertake to examine, what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide for a particular mode of communication, almost grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations.

This being the apparent design of the constitution, it would be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it.”

The President’s Diplomatic Role.—Hamilton, although he had expressed substantially the same view in The Federalist regarding the power of reception, adopted a very different conception of it in defense of Washington’s proclamation.

Writing under the pseudonym, “Pacificus,” he said: “The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation.

For until the new government is acknowledged, the treaties between the nations, so far at least as regards public rights, are of course suspended.

This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become as an associate in the war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war.

Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. The division of the executive power in the Constitution, creates a concurrent authority in the cases to which it relates.”

Jefferson’s Real Position.—Nor did Jefferson himself officially support Madison’s point of view, as the following extract from his “minutes of a Conversation,” which took place July 10, 1793, between himself and Citizen Genet, show: “He asked if they [Congress] were not the sovereign. I told him no, they were sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department. ‘But,’ said he, ‘at least, Congress are bound to see that the treaties are observed.’ I told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. ‘If he decides against the treaty, to whom is a nation to appeal?’ I told him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea.”

The Power of Recognition
In his endeavor in 1793 to minimize the importance of the President’s power of reception, Madison denied that it involved cognizance of the question, whether those exercising the government of the accrediting state had the right along with the possession. He said: “This belongs to the nation, and to the nation alone, on whom the government operates. . . . It is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and consequently a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister. It is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an illegitimate despotism. Such are in fact discussed and admitted by the most approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the executive of the United States; and certainly not to be brought by any torture of words, within the right to receive ambassadors.”

Hamilton, with the case of Genet before him, had taken the contrary position, which history has ratified. In consequence of his power to receive and dispatch diplomatic agents, but more especially the former, the President possesses the power to recognize new states, communities claiming the status of belligerency, and changes of government in established states; also, by the same token, the power to decline recognition, and thereby decline diplomatic relations with such new states or governments. The affirmative precedents down to 1906 are succinctly summarized by John Bassett Moore in his famous Digest, as follows: “In the preceding review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility.”

Source: Justia
Link: https://law.justia.com/constitution/u...

This is an interesting discussion which touches upon executive power:

JUSTICE SCALIA ON FEDERALISM AND SEPARATION OF POWERS - 2016 National Lawyers Convention*

https://www.cato.org/sites/cato.org/f...

Source: Cato

Some interesting views by Cathy Gillespie in Constituting America on the two paragraphs that we are now discussing in Federalist 69

https://constitutingamerica.org/augus...

Source: Constituting America

Interesting discourse on unqualified ambassadors:

https://scholarship.law.marquette.edu...

Source: Marquette

The Emoluments Clause: Its Text, Meaning, And Application To Donald J. Trump

Link: https://www.brookings.edu/wp-content/...

Source: Brookings Institute

The Limits of Executive Privilege

https://www.pogo.org/report/2019/05/t...

Source: Pogo

The President's Power in the Field of Foreign Relations

https://www.justice.gov/file/20661/do...

Source: Justice.gov

The Limits of Executive Power Robert J. Reinstein
Article 1

Link: https://digitalcommons.wcl.american.e...

Source: American University

The Federalists and The Federalist: A Forgotten History
Joseph M. Lynch *

Link: https://scholarship.shu.edu/cgi/viewc...

Source: Seton Hall Law Review

He points to one of Hamilton’s writings in 1792 where the Treasury secretary warns about someone who might exhibit those inclinations, and Chernow argues that it sounds a lot like the current occupant of the Oval Office:

“When a man unprincipled in private life[,] desperate in his fortune, bold in his temper . . . despotic in his ordinary demeanour — known to have scoffed in private at the principles of liberty — when such a man is seen to mount the hobby horse of popularity — to join in the cry of danger to liberty — to take every opportunity of embarrassing the General Government & bringing it under suspicion — to flatter and fall in with all the non sense of the zealots of the day — It may justly be suspected that his object is to throw things into confusion that he may ‘ride the storm and direct the whirlwind.'”

Fractured into factions? What the founders feared about impeachment By Jessica Taylor/NPR

https://www.witf.org/2019/11/18/fract...

Here are the last two paragraphs of Federalist 69: (the last paragraph of Federalist 69 being a very powerful summation!)

Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group. ¶10

The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism. ¶11

The Differences between the King of Great Britain and the President (outlined by Hamilton): - (of course we are talking about the King of Great Britain and the powers that he had at that time)

King of Great Britain:
1. The King is a perpetual and hereditary prince. He is sacred and inviolable.
2. The King has an absolute negative upon acts of the legislative body.
3. The King would not only have the right to command the military and naval forces of the nation; he would have the right to declare war and of raising and regulating fleets and armies by his own authority.
4. The King would be the sole possessor of the power of making treaties.
5. The King is the sole author of all appointments and offices.
6. The King can make denizens of aliens, noblemen of commoners, can erect corporations with all the rights incident to corporate bodies.
7. The King can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin.
8. The King is the supreme head and governor of the national church.

President:
1. An officer elected by the people for four years. The president would be amenable to personal punishment and disgrace.
2. The President would have a qualified negative upon the acts of the legislative body.
3. The President would have a right to command the military and naval forces of the nation.
4. The President would have a concurrent power with a branch of the legislature in the formation of treaties.
5. The President would have a concurrent authority in appointing to offices
6. The President can confer no privileges to citizens (for example making noblemen of commoners)
7. The President can prescribe no rules concerning the commerce or currency of the nation.
8. The President has no particle of spiritual jurisdiction.

All, I have done a complete review and have posted explanations of the entire Federalist 69.

Please post your comments and begin your discussion.

(Let me know if this isn't the place to post this) Here's my response to the first discussion question:
It aligns with America's values and constitutional structure, so I think it makes sense. As exemplified by the Articles of Confederation, it was important in the founding of the US that the states' governments generally have more power over their own affairs than the federal government. In order for that to work, the president's constitutional powers have to be more restricted than those of the governor of a state. There must be a clear line of where the president's powers end in terms of the affairs of a state in order to prevent them from taking more power than intended. This leaves the governor with much more leeway and less restrictions, especially considering states' affairs are largely up to the individual states rather than the Constitution.

Sarah you are fine.

Yes, that is true and I guess that is why they kept referring to the governor of New York although the papers were also being published in New York to sway that state to vote for the ratification of the Constitution.

(Just a dump of discussion question answers)

Kopf:
While Kopf discusses other aspects of Federalist 69, he focuses on the impeachment power and its uses. I think he takes an interesting perspective on it, as his position is that the ability to impeach can be misused in order to achieve political ends. Federalist 69 did not focus on this aspect, as its purpose was to compare the amounts of power of the president, the king of England, and the governor of New York. Kopf interprets Hamilton's arguments to fit his political narrative. While I do agree that impeachments can be and have been used as a political tool, I think that he is overexaggerating the potential for abuse. The last two impeachments have been relatively political, with representatives voting largely on party lines. However, they have accomplished nothing. Nobody was removed from office, and public opinion (I think? I wasn't alive for the Clinton impeachment) towards the impeached presidents and their respective political parties remained largely unchanged. No changes in political or power structure or balance occured. These are hardly devastating, democracy-threatening consequences.

Taylor
To me, the most striking difference between the Founders' vision for America and its modern reality is hyperpartisanism, which Taylor discusses. Overall, the process of impeachment has become very partisan, with every trial having the House vote mostly on party lines. This has only increased with the passing of the 17th amendment. In the Trump situation, not a single Republican voted for impeachment and not a single Democrat voted against conviction. On this, Taylor writes, "Now, in a hyperpartisan environment, reelection could often be the motivating factor, with little incentive to cross sides." I believe this plays a huge role in both the impeachment and trial. Like she says, going against the president when he belongs to your party is usually political suicide. This has become abundantly clear in recent years- Trump has said some stuff that many Republicans likely disagree with or think go too far, but not many publicly oppose him. Everyday people are often very partisan as well, with straight-ticket voting being commonplace. That, plus the fact that impeachment has historically changed nothing, gives congresspeople no reason to view them as nonpartisan decisions, despite the Founders' vision of the impeachment process as a protection against a "crisis of a national revolution." Impeachment no longer serves this purpose, since term limits are now part of the Constitution, and I personally don't believe four years is enough time to a) anger people enough to revolt b) carry out a revolution.

Ben Williams:

I do not agree that having a president being prosecuted would largely impact the executive branch's duties in office. If a president has done something bad enough that they are being prosecuted, they have no business being in charge. This would be a situation in which the line of succession should be used. While of course this would provide a temporary hiccup in leadership, it is justifiable, and most of the day-to-day duties of the branch would remain unaffected. I also do not agree that the Federalist Papers "portray the president as a pseudo-monarch." At least in Federalist 69, Hamilton drew clear distinctions between the powers of the president and governor and of the British king. I interpret this portrayal as showing a whole new type of leadership completely separate from any sort of monarchy. Having a leader resemble a monarch would damage the idea of a new, representative form of government.

Elliott Williams

Overall, I agree with this article and the premise that Trump is stretching and breaking the law to achieve his own ends. William's said that Trump avoids working with Congress, "His stated reason? That any step Congress takes toward him constitutes "presidential harassment."" While this is an exaggeration, I've never heard of "presidential harassment," and do agree that he views Congressional oversight as a challenge to his authority. Throughout Federalizt 69, Hamilton describes how the president's powers are limited by Congress, for example impeachment, the ability to override a veto, and limited war powers (which have been significantly increased since the writing of Federalist 69). As Willaims argues, Trump disregards this in an attempt to gain more power for himself. I wouldn't go so far as to say he is completely dismantling the framework Hamilton explained I'm his paper, but I do believe that he is attempting to dismantle some of the checks and balances.

Grant

I find the article a bit dubious- it doesn't clarify who exactly could vote in Colonial and Early Anerican times, despite implying that it's a misconception almost everyone has. It also says Fededalist 69 was written by Madison. In terms of what it focuses on, I think it chose a good passage and did a good job explaining in plainer English what it means. I would argue that this section is the most important of Federalist 69, since it gets to the heart of Hamilton's argument that, unlike a king, the president is not above the law and must abide by certain restrictions. The article rightly emphasizes this, as well as the fact that all Americans should read this paper. I agree, since it is an important document that reveals much about the Founders' intentions for the role and abilities of the president, and, as the article states, has definitely given me plenty of insight into the intent of the Constitution's words.

Knipprath

As for these paragraphs, I think they make an important distinction between the powers of the president and the other two. They also emphasize the restrictions on presidential power, which sets up Hamilton's arguments well. I think Knipprath makes some interesting points that help explain why Hamilton chose the examples/focusses that he did. His application for today and why we should still care was good, as was tying it into the Constitution. Overall, his explanations helped me understand the paragraphs better.

Sarah, I will try to comment on your comprehensive post - a little bit at a time.

There were quite serious matters in this current one (impeachment) and even though Nixon was not impeached he left office on his own because it was certain he would be - without witnesses in the Senate this year - it was not taken seriously and I think it should have been. But everyone has their own opinion on these matters and everyone has their vote this November.

Regarding what you have posted under Taylor:

Only two House Democrats crossed party lines to vote to oppose both articles of impeachment against President Trump. Both of them were feeling the pressure of representing swing districts Trump won in 2016.

Rep. Collin Peterson (D-Minn.), who has represented Minnesota's 7th district since 1991. His district pivoted to support Trump after voting in Obama for two terms.

Rep. Jeff Van Drew (D-N.J.), a freshman Democrat in New Jersey's 2nd district who is probably a Republican by now. He had voted against Trump on nearly all issues except impeachment. His district swung to support Trump in 2016 after voting in Obama for two terms.

Also worth noting: Rep. Jared Golden (D-Maine), a freshman, followed through on his promise to vote yes for the impeachment article accusing Trump of abusing his power — but not the second, which alleges that Trump obstructed Congress.

Golden represents Maine's 2nd district, which voted for Trump in 2016 after voting in Obama for two terms.

Rep. Tulsi Gabbard (D-Hawaii), the only House Democrat to remain publicly undecided on impeachment at the 11th hour, voted "present" for both articles. She was elected to Hawaii's 2nd district in 2013, which remained blue in 2016 as a historically Democratic state.

Gabbard characterized her vote as "standing in the center," saying in a statement that she "could not in good conscience vote against impeachment because I believe President Trump is guilty of wrongdoing" — but that a vote for this impeachment would be part of a "partisan process."

The backstory: Peterson, Van Drew and Golden — the latter of which are freshman lawmakers — have publicly opposed the impeachment inquiry since October. Gabbard had introduced a resolution to censure Trump as a less severe alternative to removing him from office.

As far as Trump goes - he was impeached!

Now the Senate votes on the removal - and I have attached how that went. Romney voted that Trump was guilty of abuse of power.

https://www.cnn.com/interactive/2020/...

As far as publicly opposing Trump - it is obvious they are afraid of his scorched earth approach and being primaried or bullied and embarrassed publicly.

This is just my humble opinion but I disagree with your last sentence - you said - I personally don't believe four years is enough time to a) anger people enough to revolt b) carry out a revolution. - but everyone is entitled to their opinion and position.

I think people are angry, scared, uncertain about their future and their health and are embarrassed. There are protests over racism and policing procedures and uncertainty about jobs and livelihood. The US is in a very dangerous place right now.

More:
https://www.ft.com/content/180bdae1-6...
https://www.cnn.com/2020/07/11/health...
https://www.bnnbloomberg.ca/u-s-bank-...

On the Ben Williams paragraph I agree. I think Chief Justice Roberts put it best this week.

"Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when
called upon in a criminal proceeding.

We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of
need.

The “guard[] furnished to this high officer” lies where
it always has—in “the conduct of a court” applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system. Burr, 25 F. Cas., at 34"

“In our judicial system, ‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States,” Roberts wrote in the New York case.