Federalist No. 70: Is the President Too Powerful?

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DOI	http://doi.org/10.1111/j.1540-6210.2011.02470.x
Author	James P. Pfiffner
Published date	01 December 2011
Date	01 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

passed.

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.