Hamilton's Vision: Understanding Executive Authority in Federalist No. 70

Dr. Beienberg returns to explore Federalist No. 70, examining Hamilton's nuanced arguments for a strong executive branch within a balanced constitutional system. The discussion clarifies common misconceptions about the "unitary executive" theory and illustrates why the founders designed the presidency for efficient implementation rather than policy creation.

• Hamilton's core argument in Federalist 70-72 emphasizes the need for a "strong and vigorous executive" but with specific limitations
• The founders designed deliberative legislatures to make policy and energetic executives to implement it
• Executive power primarily concerns executing laws, not creating domestic policy
• The "unitary executive" concept ensures accountability rather than expanding presidential authority
• Presidents cannot legitimately refuse to enforce laws or create policy unilaterally under Hamilton's vision
• Hamilton and Madison disagreed about the extent of executive authority in foreign policy
• Modern misinterpretations of Federalist 70 often overlook the founders' careful institutional design

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Speaker 1 0:46

Welcome back to Civics . In a Year where , right now , we're doing a deep dive into some of the Federalist Papers , we have one of our favorite scholars , dr Beinberg , back with us , and today we're talking about Federalist no 70 . So , dr Beinberg , what was the central argument of Federalist 70 ?

Speaker 2 1:05

So I'm going to cheat a little bit and treat 70 , 71 , and 72 . I'm going to pull parts of these other two since they're like , literally it says continued and he goes on . So I'll sort of treat them . I'll kind of treat them together here , but they're effectively the core of the discussion of the scope of executive power . So the core argument of Federalist 70 is that you need to have a strong and vigorous executive president . But I

Welcome to Federalist Paper Discussion

Speaker 2 1:32

think it's important when making what that argument , in understanding that argument , it's important to understand what they mean by executive , because it's very easy today to just say , ah , executive power is what the president does and therefore the president does a lot , therefore the president is strong , therefore

Hamilton's Core Argument for Executive Power

Speaker 2 1:51

Fed 70 .

Speaker 2 1:52

When the argument in those trio of federalist papers is a lot more subtle than that and in fact what it is is saying we understand what legislative power is , we understand what executive power is and we want to build an executive that its institutional design does the things an executive should do . Well , but it doesn't do the things a legislature should do . So for example , excuse me , hamilton says that you want energy in your executive and deliberation in your legislature , and what in he goes through and says is that what's a feature in one branch is a bug in the other . What's the purpose of the legislature ? It's to set policy , it's to figure out what the country is going to do . And that process is going to be messy , it's going to be divisive , it's going to be slow , it's going to be deliberative , in a word , and that's how you want it to happen . Before you decide what your country is actually going to do , or at the state level , or you can generalize this to any lawmaking authority , you are representing diverse peoples , different economic , different geographic , different cultural , different political , different religion , whatever right . You're representing diverse , diverse cultures , citizenry . So that's slow and messy , it shouldn't be efficient by design . By contrast , hamilton says you do want your executive to be able to act quickly because at that point you are no longer fundamentally deciding what the policy is . That decision has already happened in the legislature . And so what's fundamentally the executive supposed to be doing ? Implementing and executing the law , at least on the domestic side .

Speaker 2 3:49

Foreign policy is a separate question and this is part of Hamilton's case . This is one of the places where you see actually division between Hamilton and Madison . Later the debate is effectively how much of the British understanding of executive power in foreign policy translated over to the US Constitution or was changed by it . Hamilton largely wants to argue that the foreign policy authority

Accountability and the Unitary Executive

Speaker 2 4:15

of the president is similar to that in Britain where most foreign policy is basically in the hands of the executive . In Britain where most foreign policy is basically in the hands of the executive , except in explicit exceptions such as declaring war and ratifying treaties . But otherwise Hamilton basically wants to say executive power is a foreign policy , foreign policy is executive power . Madison wants to say no . The same sort of division between the legislature and the executive operates in foreign policy . So foreign policy is obviously a little different .

Speaker 2 4:48

But Hamilton's case . Obviously for foreign policy you want quick efficiency , you want decision making , you need somebody to quickly deal with an invasion is happening , or we need to have one person or one person's sort of representatives at the negotiating table , versus imagine having , you know , the entire United States Senate sitting around debating , picking a treaty or something like that . Right . So you need to have sort of a fundamental point person on the foreign policy side and I think that part is pretty straightforward and understandable to most people because that looks like it how it is today . But the domestic policy side I think is easy to lose track of . So the executive should act with vigor and decision , as he says in Federalist 71 , and you don't want a feeble administration . But administration means sort of executing and implementing the law , because once you've decided what the law is , it should be executed and implemented efficiently and cleanly and quickly , because at that point I'm being redundant , but it's just so easy to lose track of this . Once it's decided what the policy is , the execution should be clean , and so Madison says so , jimmy Hamilton says , and therefore we want the executive to be built in a way that optimizes he doesn't use the term efficiency , but that's very clearly what he sort of has in mind that that should be vigorous , robust , efficient and cleanly accountable . And this connects to an argument that he develops in Federal 70 , 71 , and 72 .

Speaker 2 6:12

And it's another argument that's often misunderstood this idea of the unitary executive . A few years ago , when I was teaching comm op , a student came up to me and asked me if I'd seen the movie Vice , which I guess is about Dick Cheney and George W Bush . I think Christian Bale plays Dick Cheney , if I recall correctly . Anyway , there's a section in there , the student said , where they explain and I'm putting explain in quotes here what the unitary executive is . And they quote a Supreme Court justice to say the unitary executive means the president can do whatever he wants . Not only is that inconsistent with what that justice has actually written and other many other opinions , but it's inconsistent with what the actual logic of the unitary executive is , which is you want one person in executing the law because you want clear accountability if the law is executed badly . And so if the unitary executive in this instance it's similar to the discussion we talked about a few sessions ago on Federalist 39 . You want effectively a clear rule of accountability and you want to basically have your institutional design to reflect that . And so the execution of the law should be efficient and quick and you should know who to blame If the law is executed badly .

Speaker 2 7:32

In the United States it is ultimately , if it's a federal law , it's the president's fault , because the president can hire with the consent of the Senate that's a little exception but fire people the president can't say . Well , you know it's unfortunate , you just stuck me with that knucklehead treasury secretary . There's nothing I can do about that . That had been the model into the British system . Oh , the king's advisor is the one's messing ? Oh , it's the king's privy council that's messing it up . And so you have this divided blame . Hamilton says you don't have that in the US system . Ultimately , everyone is accountable . And so this is where I was saying there's the Fed 39 parallel , because in Federalist 39 , as we talked about , the scope of lawmaking is federal , the execution is national .

Speaker 2 8:18

Unitary executive is not about the scope of presidential power , it's about the execution of it , the implementation . It's a chain of command , right ? So you can have , in fact , a very , very , very robust understanding of a unitary executive , which is the president , can and should be able to control the entirety of the executive branch , alongside a narrow interpretation of what that's . Actual powers are where most power is supposed to be , with the legislature . So , just to make this a little more concrete , federalist 72 begins with the discussion of what executive power looks like , and he says , effectively , it's going to be the conduct of foreign negotiations , the preparatory plans of finance , the disbursement of the public monies in conformity to the appropriation of the legislature , right , these are the kinds of things . This isn't fundamentally setting the policy , this is sort of administrative implementation .

Speaker 2 9:17

And so you know , we often think and you'll hear , and this is why I'm really prickly about Federalist 70 .

Speaker 2 9:24

You will hear this . This president will do something and say , ah , I have power to do that because Federalist 70 says the presidency should be vigorous . But the idea , for example and I'll

What Executive Power Actually Entails

Speaker 2 9:34

use bipartisan or slash nonpartisan examples here the idea that the executive power could be used to not enforce a law , which we have examples of presidents from both parties doing in the last few years , which we have examples of presidents from both parties doing in the last few years that would be antithetical to the idea of the executive power that it's supposed to take care that the laws be faithfully executed . It can't unmake a policy unilaterally . And similarly and obviously the scope of executive orders varies in terms of how much and how faithfully they're actually implementing a congressional statute . But the idea that the executive can fundamentally create policy , at least on the domestic side , would similarly be something that would have horrified the founders , because they just didn't understand that to be the scope of the executive , that fundamental domestic policymaking has to be in the hands of the legislature .

Speaker 2 10:23

And so you build a legislature and an executive in federal 70 that look very different because they are doing fundamentally different things . The case for a unitary executive disappears if the president is doing legislative work , and so Federalist 70 is a he sort of skims over it lightly because he assumes most Americans are going to know yes , the legislature is the policymaking part , the executive is the executing part . He doesn't elaborate on it that much because the assumption is we all know this . But as we've lost track of that over time , it's easy to lose this , in fact , fundamental argument of Federalist 70 , which again is we built the institution to most sensibly implement what that institution is supposed to do .

Speaker 1 11:12

Listeners . We are going to go a little bit deeper into Federalist 70 because there's a couple more questions that I have for Dr Bionberg . So thank you .