Hamilton Would Not Have Stood for Trump’s New Constitutional Theory
Even the Founding Father with the most expansive view of executive power would have found Trump’s recent constitutional ideas troubling.
About the author: Jeffrey Rosen is a contributing writer for The Atlantic, President & CEO of the National Constitution Center, and a law professor at George Washington University. He is the author of Conversations With RBG: Justice Ruth Bader Ginsburg on Life, Love, Liberty, and Law.
Earlier this week, Donald Trump made two sweeping claims about his executive power under the Constitution. “When somebody’s the president of the United States, the authority is total,” he declared on Monday evening, asserting that the president, rather than state governors, has the power to decide when to end social distancing. And then two days later, speaking from the Rose Garden, the president threatened, “The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so that I can make recess appointments. If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers.”
Neither of the president’s claims about the scope of his powers under the Constitution was, to put it mildly, well received. Scholars and politicians from across the political spectrum, including both New York Governor Andrew Cuomo and Senate Majority Leader Mitch McConnell, indicated that they disagreed with the president. But perhaps the most pointed criticism of these ideas comes from Alexander Hamilton.
In “Federalist No. 69,” Hamilton makes an extended argument about how the powers of the American president differ from those of the British king and, as it happens, the governor of New York. He gives four distinctions, all of which are worth parsing. They demonstrate that even the Founder with the most expansive view of executive power—so broad that the other Founders considered him a closet monarchist—insisted that there were limits to that power, which would be balanced and checked by Congress, the judiciary, and the states.
In that essay, Hamilton begins by noting that “the executive authority, with few exceptions, is to be vested in a single magistrate and 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.” He goes on to enumerate the ways in which the president has fewer powers than both the British king and the New York governor.
“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.” Here his power is less than that of the British king or the New York governor, who have “at all times the entire command of the militia within their several jurisdictions.”
“Secondly. The President is to be commander-in-chief of the army and navy of the United States.” In this respect, his power in practice is “much inferior” to that of the British king, which extends to declaring war and raising and regulating armies, powers that the Constitution assigns to Congress. Although the governor of New York also had the power to only command the state militia and navy, Hamilton continued, the constitutions of other states, such as New Hampshire and Massachusetts, arguably conferred broader powers to their governors than the president could claim.
“Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT.” By contrast, “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?” If the New York governor were heading up a conspiracy, Hamilton suggested that he, unlike the president, could promise his co-conspirators immunity by dangling the promise of pardons. “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.”
Fourthly, and most relevant to the current episode, Hamilton makes clear that the president can adjourn Congress only when both chambers disagree about the time of adjournment. “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.” This conclusion reinforces the clear language of Article II, Section 3, of the Constitution, which says that the president “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.” To drive home the point that the president’s power to adjourn Congress is limited to cases in which both chambers disagree, Hamilton put the limitation in capital letters. “In case of disagreement between [both chambers of Congress] WITH RESPECT TO THE TIME OF ADJOURNMENT,” the president has the power “to adjourn them to such time as he shall think proper.
Why did Hamilton, whose enthusiasm for executive power was so vigorous that he argued for a president elected for life, go to such lengths to emphasize limitations on presidential power in “Federalist No. 69”? The limitations stem from Hamilton’s vision of the virtues of what classical philosophers such as Plato, Aristotle, Polybius, and Cicero called “mixed government.” Plato identified three forms of government: monarchy, aristocracy, and democracy—or rule by the one, the few, and the many. Each of these, he believed, would deteriorate, if unchecked, into their degenerate forms: Monarchy would become tyranny, aristocracy would become oligarchy, and democracy would become mob rule. The Greek historian Polybius, whose history of the Roman Republic was much cited by the American Framers, insisted that the most successful constitutions assigned equal amounts of power to the few, the many, and the one.
Like other Federalists such as James Madison and John Adams, and like Republicans such as Thomas Jefferson, Hamilton was an enthusiastic advocate of classical mixed-government theory. In his notes for a speech at the Constitutional Convention on June 18, 1787, in which he argued that the president and the Senate should be elected for life, he declared:
Here I shall give my sentiments of the best form of government—not as a thing attainable by us, but as a model which we ought to approach as near as possible.
British constitution best form.
Aristotle—Cicero—Montesquieu—Neckar.
Society naturally divides itself into two political divisions—the few and the many, who have distinct interests.
If government in the hands of the few, they will tyrannize over the many.
If (in) the hands of the many, they will tyrannize over the few. It ought to be in the hands of both; and they should be separated.
This separation must be permanent.
Representation alone will not do.
Demagogues will generally prevail.
And if separated, they will need a mutual check.
This check is a monarch.
Hamilton went on to say that monarchs had the advantage of being above corruption and not susceptible to foreign intrigues. He concluded by praising two principles unknown to classical authors—representation and the separation of powers—that would achieve the classical goal of preventing democracy from degenerating into mob rule by balancing the powers of the one, the few, and the many. “Gentlemen say we need to be rescued from the democracy. But what the means proposed?” he said. “A democratic assembly is to be checked by a democratic senate, and both these by a democratic chief magistrate.”
The fact that the convention rejected Hamilton’s proposals of life terms for the president and the Senate suggests that there was disagreement among the delegates about the ultimate scope of presidential power. And that disagreement persists today, dividing proponents of the idea of the “unitary executive”—some of whom argue that federal independent agencies such as the Federal Reserve are unconstitutional because they impose restrictions on the president’s power to fire, supervise, and control executive officials—and executive-power minimalists, who argue that Congress could prevent the president from firing the attorney general or the secretary of state. But regardless of whether you are an executive-power maximalist or minimalist, a Hamiltonian or a Jeffersonian, Hamilton’s conclusion is persuasive: The power of the president of the United States, in some respects, is less than that of Queen Elizabeth or Andrew Cuomo.
That’s why Cuomo, the Hamiltonian governor of New York, and Rand Paul, the Jeffersonian senator from Kentucky, both rejected the president’s claim that his “authority is total.” In asserting that “we don’t have a king in this country,” Cuomo cited Hamilton’s observation at the New York ratifying convention of 1788: “The State governments possess inherent advantages, which will ever give them an influence and ascendancy over the National Government, and will forever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation.” Paul concurred with Cuomo that presidential powers are limited by states’ rights and the ultimate sovereignty of the people, invoking the powers reserved to the states and the people under the Tenth Amendment. “The constitution doesn’t allow the federal gov’t to become the ultimate regulator of our lives because they wave a doctor’s note,” Paul tweeted. “Powers not delegated are RESERVED to states & the PEOPLE. If we dispense with constitutional restraints, we will have more to worry about than a virus.”
On this point, Hamilton himself would have agreed.