Federalist No. 70: Is the President Too Powerful?

Published date01 December 2011
Date01 December 2011
James P. Pf‌i ffner is the University Pro-
fessor and director of the doctoral program
in the School of Public Policy at George
Mason University. In 2007, he was the S. T.
Lee Professorial Fellow in the Institute for
Advanced Study at the University of London.
He is the author or editor of a dozen books,
including Power Play: The Bush Admin-
istration and the Constitution (2008)
and Torture as Public Policy (2010).
E-mail: pf‌i ffner@gmu.edu
S112 Public Administration Review • December 2011 • Special Issue
James P. Pf‌i ffner
George Mason University
Federalist No. 70 sets the stage for a powerful chief
executive through its emphasis on energy in the executive.
is essay reviews the challenges of holding this energy
accountable in a republican form of government and
concludes that recent presidents have stretched their
authorities beyond even the most aggressive defense of
the concept. Comparing presidents Abraham Lincoln
and George W. Bush, the author concludes that the
founders never intended to give any president authority
to suspend the law during emergencies. His appendix to
Federalist No. 70 is designed to both restate and reset the
debate about just how far presidents may go in pursuit of
national goals.
Occasionally, the United States is confronted
with the dilemma that, in emergencies,
presidents may f‌i nd it necessary to take
actions that ignore constitutional restraints and break
the law. In such cases, a strict adherence to the law
might prevent the president from acting quickly to
protect national security. Some have argued that the
president has the constitutional authority to take
whatever actions are deemed necessary, regardless of
the law, and that this authority is available indef‌i nitely
as long as it is exercised when the president cites the
commander in chief authority conferred in Article
II of the U.S. Constitution (Bybee 2002; Yoo 2005,
2006, 2010).
is essay, however, argues that the only circum-
stances under which the president can take actions not
granted in the Constitution are those during genuine
emergencies. In such extraordinary circumstances, the
president explicitly must acknowledge that the actions
are extraconstitutional and must seek congressional
sanction as soon as the immediate emergency has
Advocates of granting increased national security
authority to the president often refer to the Federalist
Papers, particularly Alexander Hamilton’s Federalist
No. 70, to support their goals. In opposition to those
arguments, this article maintains that the Constitution
provides suf‌f‌i cient authority for the president to act
expeditiously in an emergency and still respect the
principles of separation of powers. It f‌i rst will consider
the ambiguity of executive authority in the Constitu-
tion and then examine the defense of the institution
of the presidency set forth in the Federalist Papers.
e essay will illustrate dif‌f erent approaches to pre-
rogative power (def‌i ned as power not sanctioned by
the Constitution) by contrasting President Abra-
ham Lincoln’s actions at the beginning of the Civil
War with President George W. Bush’s extraordinar y
claims to executive power during the war on terror.
It will argue that the exercise of prerogative power is
legitimate in emergencies insofar as such actions are
taken with transparency and congressional authority is
respected after the emergency has passed.
The Ambiguity of Executive Power
In creating the presidency, the framers had to design
an executive that was appropriate for a republic.
Although Alexander Hamilton favored a strong execu-
tive, drawing lessons from what he saw as the positive
aspects of European monarchs, his vision seemed too
monarchical for most framers to accept, having just
fought a war to throw of‌f the yoke of King George
III and the colonial governors. Hamilton laid out his
vision of the of‌f‌i ce of president in a long speech to the
Constitutional Convention on June 18, 1787.
Hamilton’s ideal executive would serve “during good
behavior,” that is, for life, barring impeachment.
He would be able to exercise an absolute veto, as
the British monarch did. He would be elected by
“Electors chosen by the people” and able to avoid
Senate conf‌i rmation for the heads of “Finance, War
and Foreign Af‌f airs” (Farrand 1:282–93).  e Senate
would have the “sole power of declaring war” and
approving all treaties.
Many framers still feared arbitrary rule by an over-
weening executive, and at the beginning of the con-
vention, Benjamin Franklin and Edmund Randolph
favored a plural executive in order to limit its power.
Federalist No. 70: Is the President Too Powerful?

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