Alexander Hamilton on Executive Authority

Abstract

The ‘residuum’ theory of executive power maintains that Article II’s Vesting Clause grants to the president of the United States a residuum of royal prerogative powers that have not been assigned to other departments of the national government or otherwise limited elsewhere in the text of the Constitution. This theory is often traced to Alexander Hamilton’s Pacificus essay, in which he defended President Washington’s proclamation of neutrality with a version of that theory. Two years earlier, however, in his opinion on the constitutionality of the Bank of the United States, Hamilton appears to have rejected the residuum theory; at a minimum, he had incentive to propound that theory but did not do so. Although not the only possible way to interpret Hamilton’s opinion, scholars of executive power must contend with this possibility before concluding that Hamilton believed in a residual vesting of prerogative powers.

I. HAMILTON IN PACIFICUS

It is widely understood that the Committee of Detail that drafted the US Constitution assigned and distributed the British monarch’s royal prerogatives across various departments of the national government. As William Crosskey pointed out, most of Article I, Section 8’s enumeration consists in historically royal prerogative powers described in William Blackstone’s Commentaries on the Laws of England.¹ The federal judiciary is vested with the power over equity.² The US Senate shares with the president two historically royal powers, those over treaties and appointments.³ Some royal prerogatives are denied to the national government altogether, for example the power to confer titles of nobility.⁴ And the president of the United States is vested with ‘the executive Power’ and with a smattering of additional prerogatives, such as the commander-in-chief, pardon, and adjournment powers.⁵

A scholarly debate exists over whether the grant of ‘the executive Power’ to the president in Article II’s Vesting Clause⁶ is a residual grant of all executive powers and prerogatives; is only a grant of the specific power to execute law; or is a grant of no power at all. The first, ‘residuum’ theory is probably the prevailing theory among modern-day ‘originalists’ who believe the Constitution should be interpreted with its original meaning.⁷ Under this view, the grant of ‘the executive Power’ to the president is a grant of all power executive in nature—including power exercised by the royal monarch as of 1787—subject to the assignment of such powers away from the president, for example in Article I, Section 8, or other limitations in the Constitution.⁸ Hence any ‘residual’ executive powers belong to the president.

The second, law-execution account provides that the Vesting Clause is a substantive grant of power, but is not a residual grant; it is only a grant of power to execute the law.⁹ Under this account, the grant of ‘legislative Powers’ to Congress is the power to make laws with respect to the subjects of Article I, Section 8; the grant of ‘the executive Power’ is the power to execute those laws as well as other laws such as treaties; and the grant of ‘the judicial Power’ is the power to adjudicate cases or controversies under existing law. As Gouverneur Morris, head of the Committee of Style in the Constitutional Convention, explained, ‘the three powers’ are ‘the power of making[,] … of executing, and … of judging, the laws’.¹⁰

The third possibility is that the Vesting Clause is not a grant of power at all, but merely identifies the president as the wielder of all subsequently enumerated powers in Article II.¹¹ The proponents of this view, as well as of the law-execution view, argue that the grant of specific prerogative powers in the balance of Article II (such as the Commander-in-Chief and pardon powers) would make little sense if Article II’s Vesting Clause were a residual grant of power. Proponents of the residuum theory respond that the specific grants in Article II are confirmations of or limitations on historical prerogatives. Additionally, they claim that many presidential powers—such as the power to communicate with and instruct ambassadors—are otherwise missing absent a residuum.¹² The stakes of this debate range from very significant if one has a constrained view of congressional powers and a robust view of inherent executive authority, to rather minor if one has a robust view of both congressional powers and the prerogatives specifically assigned to the president in the Constitution.

The residuum theorists trace the theory to Alexander Hamilton’s first Pacificus essay, in which he defended President Washington’s proclamation of neutrality.¹³ Britain and France were at war,¹⁴ and the question was whether the United States was obligated to enter the war on the side of France, with whom the United States had been allied since the Revolutionary War.¹⁵ The only problem was that the monarch with whom the relevant treaty was signed had just been executed during the French Revolution, and so there had been a radical change in government.¹⁶ And the alliance was a defensive one only, and France had arguably begun the conflict with Britain.¹⁷ Under the circumstances, what were the United States’ obligations?

With the Federalists preferring war with France and the Republicans preferring war with England, President Washington thought it best to stay neutral in the conflict and issued a proclamation of neutrality.¹⁸ The proclamation also directed the prosecution of American citizens who were caught aiding one of the two belligerents. Hamilton defended the constitutionality of the proclamation under the pseudonym Pacificus.¹⁹ James Madison responded with attacks on its constitutionality in pseudonymous essays under the name Helvidius.²⁰

‘The enumeration’ in Article II, Hamilton wrote, ought ‘to be considered as intended … to specify and regulate the principal articles implied in the definition of Executive Power; leaving the rest to flow from the general grant of that power’. The ‘general doctrine … of our constitution’, Hamilton asserted, is therefore ‘that the Executive Power of the Nation is vested in the President; subject only to the exceptions and qu[a]lifications which are expressed in the instrument’.²¹ Among those exceptions, Hamilton wrote, were treaty-making and the appointment power, which were shared with the Senate, and the power to declare war and grant letters of marque and reprisal. Because ‘the issuing of a proclamation of neutrality is merely an Executive Act’, and not belonging to Congress, it belongs to the president. While ‘the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War—it belongs to the “Executive Power”, to do whatever else the laws of Nations cooperating with the Treaties of the Country enjoin, in the intercourse of the [United ]States with foreign Powers’.

I have noted previously²² that the residuum theory was not Hamilton’s principal argument, which was consistent with the idea that the executive power is merely the power to execute law. After concluding that neither the legislative nor judicial departments had a power to act in that instance, Hamilton argued that it must ‘of necessity belong to the Executive Department to exercise the function in Question’. He then cited specific grants of power: The president is ‘the organ of intercourse between the Nation and foreign Nations’;²³ is ‘the interpreter of the National Treaties in those cases in which the Judiciary is not competent’; ‘is charged with the Execution of the Laws, of which Treaties form a part’; and ‘is charged with the command and application of the Public Force’. Toward the end of the essay he reiterated, ‘The President is the constitutional executor of the laws. Our Treaties and the laws of Nations form a part of the law of the land. He who is to execute the laws must first judge for himself of their meaning.’

Because the bulk of Hamilton’s argument did not depend on the residuum theory, Hamilton’s use of that theory in the alternative should not be given dispositive weight. His use of it is some evidence that Hamilton, and perhaps some others in the Founding generation, may have understood that the grant of the executive power may have consisted in a residuum of prerogative powers. It is hardly strong evidence, however.

In the remainder of this short article, I want to suggest an understudied reason why scholars ought at least to question Hamilton’s alternative argument: Hamilton’s argument in his opinion on the Bank of the United States is likely inconsistent with the residuum theory. At a minimum, he had incentive to make the argument but did not do so.

II. HAMILTON ON THE BANK

I have previously suggested²⁴ why the debate at the Constitutional Convention over the power to incorporate a bank is hard to square with a residual grant of executive power. The power of erecting corporations was a known and established royal prerogative: because ‘the king has also the prerogative of conferring privileges upon private persons’, he has ‘the prerogative of erecting corporations; whereby a number of private persons are united and knit together, and enjoy many liberties, powers, and immunities in their politic capacity, which they were utterly incapable of in their natural’.²⁵ Recall that the Framers at the Convention appeared to use Blackstone as a drafting guide to the royal prerogatives and so would have been aware of this prerogative.²⁶ The debates over incorporating the bank therefore have the potential to inform us about the Framers’ understanding of executive power and royal prerogatives more generally, just as the Helvidius–Pacificus debates shed light on this question in the context of intercourse with foreign nations.

The short debate in the Constitutional Convention occurred on September 14, 1787, when the Constitution was nearly in its final form and Article II’s Vesting Clause was already in place. Benjamin Franklin moved to add a power in Article I, Section 8 to allow Congress to ‘provide for cutting canals’. Madison then ‘suggested an enlargement of the motion into a power “to grant charters of incorporation where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent”’, with the primary objective being ‘to secure an easy communication between the States which the free intercourse now to be opened, seemed to call for’.²⁷

Rufus King objected, arguing that ‘[t]he States will be prejudiced and divided into parties by it—In Philada. & New York, It will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies’. James Wilson responded that providing for banks would probably not ‘excite the prejudices & parties apprehended’, and that providing for mercantile monopolies was already implied by the power to regulate trade (perhaps in combination with the Necessary and Proper Clause). George Mason, however, supported ‘limiting the power [of incorporation] to the single case of Canals’ because ‘[h]e was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr Wilson’.²⁸

The motion was so modified to be limited only to the power to incorporate companies for the cutting of canals and was rejected by a vote of 8–3. Madison’s notes then state, ‘The other part fell of course, as including the power rejected’. In other words, the general power of incorporation was rejected because it would have included the rejected power to incorporate companies for the purpose of cutting canals and making other internal improvements.²⁹

I have previously suggested that although this episode lends itself to more than one possible inference, the most plausible is that the delegates intended to deny the national government a power to grant charters of incorporation.³⁰ Recall again that this power was specifically listed in Blackstone as a royal prerogative, and most of the other royal prerogatives had already been distributed to the various branches of the national government (or denied altogether). Key Framers were therefore almost certainly aware that the power to erect corporations was a royal prerogative, and yet not a single delegate in this debate argued that if Congress did not have the power to erect corporations, that power would nevertheless be vested in the president by virtue of a residuum. It did not appear to occur to any delegate that such a power might be so vested in the president. This is important evidence against the residuum theory.

What has not been previously addressed is Hamilton’s own opinion in the debate over incorporating a national bank four years later, in 1791. His opinion casts at least some doubt on his later argument about an Article II residuum in his Pacificus essay of 1793. A careful parsing of both Hamilton’s initial draft opinion as well as his final opinion on the constitutionality of the Bank of the United States suggests that he likely did not believe in a residual grant of prerogative powers.

Both drafts indicate that Hamilton was aware that in England the power to erect corporations was a royal prerogative power. (Federalist 69, in which Hamilton notes that the king had this prerogative, also proves he was aware of this point.³¹) In his first draft, Hamilton wrote:

In England the power of erecting corporations forms a part of the executive authority and the exercise of it may even be delegated to [sic] that Authority to other persons. Certainly then, there is something not a little forced in the supposition, that the whole Legislative power Union is unequal to incapable of it [sic].³²

In his final draft, Hamilton wrote:

In England, whence our notions of it [the power of incorporation] are immediately borrowed, it forms a part of the executive authority, & the exercise of it has been often delegated by that authority. Whence therefore the ground of the supposition, that it lies beyond the reach of all those very important portions of sovereign power, legislative as well as executive, which belong to the government of the United States?³³

Both drafts gave Hamilton an opportunity to consider the possibility of an executive residuum. The first draft argues that because the king had the power in England, it is awkward to think that the legislature in America does not; here there was no suggestion that the president might have this power in the absence of a power in Congress. The change in the final draft to include ‘legislative as well as executive’ suggests even more strongly that Hamilton thought about the argument that the president might also have such a power independent of any grant to Congress, and yet he supposes that if Congress does not have the power, then neither does the executive.

True, Hamilton did not need to make the residuum argument because he believed that Congress had the power to erect corporations and, if so, there would then be no such power left to the president in the residuum. But Hamilton also did not need to make the residuum argument in his Pacificus essay; he did so in the alternative, and he could have done so here as well. Certainly, the foreign affairs powers at issue in the neutrality controversy are more natural fits for an executive residuum, and perhaps it is possible to distinguish the two episodes that way. But the power to erect corporations is just as equally a royal prerogative in Blackstone as are the powers of intercourse with foreign nations.

Simply put, Hamilton could have made the residuum argument here, just as he made it in his Pacificus essay, and moreover he would have had incentive to make the argument if he believed it to be true. Hamilton could have stated that if Congress did not have the power to incorporate a national bank, then, absent some more general denial to the national government altogether, such an executive prerogative would have been vested in the president by virtue of the residuum. This would have alarmed the opponents of a bank and special privileges even more than a power in Congress to erect corporations.

One cannot make too much of this evidence lest one fall into the fallacy of negative proof.³⁴ That Hamilton did not make an argument does not definitively prove that he believed the argument to be a bad one. And, as noted, there is some explanation for why Hamilton might not have mentioned it: because he believed that Congress did have the power, and therefore that power would not fall within the presidential residuum. Indeed, in Federalist 69, he had pointed out that while in England the king had the power to erect corporations, the president would not have such a power likely because of his presumption about congressional power. Still, Hamilton had incentive to make the argument, he had clearly thought about the relation of the ‘executive authority’ to the power to erect corporations, and yet he did not advance the point. It is always possible that Hamilton simply had not thought of this theory until his Pacificus essay—but that, too, would be a mark against the residuum from an originalist point of view. Originalists prefer evidence nearer in time to the Founding itself; the further from the Founding one gets, the less probative any evidence is of original meaning.³⁵

It is worth mentioning, however, that there is more than negative proof in this episode. Hamilton’s addition of ‘as well as executive’ in the final draft is affirmative evidence that he had thought about the matter and did not believe in the residuum. Recall that Hamilton had pointed out that in Britain, the power to erect corporations was a royal prerogative. He then asked: ‘Whence therefore the ground of the supposition, that it lies beyond the reach of all those very important portions of sovereign power, legislative as well as executive, which belong to the government of the United States?’ This is most naturally read to mean that he affirmatively believed that the executive would not have such a power, even if the legislature also did not have the power. This suggests that he did not make the residuum argument because he did not believe it to be true.

Apparently, no one else thought of this argument, either. In Attorney General Randolph’s opinion against the constitutionality of the Bank, after concluding that there was no express grant of power to Congress to erect corporations, Randolph concluded that if the power did exist it must be because ‘the nature of the foederal government implies it’, ‘it is involved in some of the specified powers of legislation’, or ‘it is necessary & proper to carry into execution some of the specified powers’.³⁶ Not once did it occur to Randolph that if Congress did not have this power, then it might be vested in the president by virtue of Article II’s Vesting Clause.

The larger point is that over the course of the bank debate, the residuum theory, if correct, would clearly have been relevant. Opponents of the Bank would have had to discount the possibility that the president had the power to erect a corporation on his own; yet no one worried about that possibility. The proponents would have had incentive to insist on a unilateral presidential power to incorporate the Bank in the absence of a congressional power; yet no one, not even Hamilton, appears to have made the argument. The debates over the Bank of the United States, in short, suggest that Hamilton may not have shared in 1791 the view that he later espoused in his 1793 Pacificus essay.

III. CONCLUSION

Hamilton’s opinion on the Bank of the United States does not definitively disprove that he believed in a residuum of executive power. But it does suggest that he was aware that erecting corporations was an executive prerogative under the British Constitution, and yet he did not make the residuum argument that he would have had incentive to make under the circumstances. His letter can also be interpreted as affirmatively discounting the possibility. It is true that Hamilton may not have thought of the argument until 1793 but that, too, would be a mark against the theory according to most originalist methodologies. Although not dispositive, this evidence suggests that theorists of executive power should be more careful before ascribing significant evidentiary weight to Hamilton’s alternative argument in his later Pacificus essay.

Footnotes