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Applications and Modern Relevance[edit]

Historical Applications[edit]

Because Federalist 70 argues for a strong, unitary executive, it has often been used as a justification for expanding executive and presidential power, especially during times of national emergency. [1] [2] [3] [4] [5] For example, it has been argued that Hamilton's arguments in Fedearlist 70 influenced:

  • George Washington declaration of neutrality towards Britain and France without Congressional [5]
  • President Lincoln’s decision to use executive authority to suspend Habeas Corpus and create a naval blockade without congressional approval during the civil war [1] [6]
  • Theodore Roosevelt’s resolution to intervene in the Coal strike of 1902.[7]
  • Woodrow Wilson’s heavy use of executive power during, and in the aftermath of WWI. [7]

The War on Terror[edit]

Fed 70 as a Justification for Executive Power[edit]

Fed 70’s arguments for an energetic, unitary executive are especially relevant to the realm of foreign policy.After 9/11 dispatch and secrecy became even more critical in the fight against terrorism and the pursuit of national security. [8] For this reason, the post 9/11 U.S. Justice department has argued that foreign policy is most effectively conducted with a single hand, meaning that congress should defer to the president’s authority. [2] As John Yoo, legal advisor to the Bush administration writes:“Alexander Hamilton famously observed in the Federalist 70, ‘Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.’ The centralization of authority in the President is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.”[2] Yoo has also argued that Fed 70 supports the President’s right to unilaterally conduct operations against terrorists without congressional consent.[2][4] This power applies to operations against both individuals and states, and is still valid even if the strike is preemptive.[2][4]

Furthermore, President Bush explicitly invoked the discourse of federalist 70 in his signing statements, declaring that he was allowed to operate outside of the law when the law conflicted with his prerogatives as the head of “the unitary executive branch." [1][9][10] For example, when signing the 2005 detainee treatment act, Bush wrote: "The executive branch shall construe … [the] Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President … of protecting the American people from further terrorist attacks." [11] Essentially,president Bush mobilized unitary executive theory to claim the right to work outside the statues of the 2005 detainee treatment act when they conflicted with his responsibilities as commander and chief. [11][10]

It has also been argued that only the president can know when the war on terror no longer mandates an expansive executive authority.[3] Because the president has the most access to national security information, and because congress is a deliberative body with diffuse interests, only the president can truly know when the war on terror is over.[3]


Controversy[edit]

Not all scholars agree that Federalist 70 supports the role that the president has played in the war on terror up to this point. Critics of the Bush Administration argue that a unitary executive, as envisioned by Alexander Hamilton in Federalist 70, still must exist within the limits of the United States Constitution [12] [13] [14] [15] These critics point out that President Bush could have asked congress to amend existing law, or retroactively obtained warrants for surveillance, but did not, thus violating the constitution.[1][16] [15] Futhermore, the concept of the unitary executive does not allow the president to work outside laws passed by congress, even when they conflict with national security interests [15] [11].

One of Hamilton's primary arguments for a unitary executive was that it increases accountability for executive action, thereby protecting liberty. [17] However many have criticized the Bush and Obama administration's use of secrecy and unilateral executive action as a violation of liberty. [18] [19] [20] [21] Some go so far as to say that, if Hamilton were alive today, he would amend Fed 70 to say that the “energy of the executive needs to be balanced by the ‘deliberation and wisdom that only the legislature can provide’”[1]

Judicial Applications[edit]

Executive Unity[edit]

Recently, Fed 70 has become intertwined with, “Unitary Executive Theory,” and is invoked to support the claim that the president should have primary responsibility over the entire executive branch.[22] This Theory was relevant in the Supreme Court Case Morrison v. Olson, when Antonin Scalia argued that an investigation of the executive branch by independent counsel was unconstitutional because criminal prosecution was purely an executive power, and that the president had the totality of executive, not just some of it.[23] Scalia also cited federalist 70 in his decision on Printz v. U.S. Printz v.U.S. was a case that revolved around the constitutionality of the Brady Act, a law that would have obligated state law enforcement officers to help enforce federal gun regulations.[24] [25] Scalia argued that: “The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove). The insistence of the Framers upon unity in the Federal Executive--to insure both vigor and accountability--is well known. See The Federalist No. 70”[24]

Essentially, Scalia argued that the Brady act would divide the Unitary executive—diminishing energy and accountability—by taking enforcement mechanism out of executive branch and putting it into hands of state law enforcement officers [26] Cite error: The <ref> tag has too many names (see the help page).

Executive Power[edit]

In addition to its contributions to the Unitary executive, Fed 70 also has also been mobilized by the supreme court as a justification for expanding executive power during war time. [27] [28] For example, in his dissenting opinion in Youngstown Sheet Tube v. Sawyer, chief justice Vinson wrote:

“This comprehensive grant of the executive power to a single person was bestowed soon after the country had thrown the yoke of monarchy… Hamilton added: "Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the law, to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice...It is thus apparent that the Presidency was deliberately fashioned as an office of power and independence. Of course, the Framers created no autocrat capable of arrogating any power unto himself at any time.”[28]

Vinson’s referenced Federalist 70’s arguments about energy in the executive to argue that the president should be allowed to seize private property in a time of national crisis.[29] In a more recent case, Hamdi v. Rumsfeld, Justice Clarence Thomas utilized Fed 70 to to make the case that the President should have the power to suspend Habeas Corpus for American citizens in order to fight the war on terror.[30] [31] In both cases, the majority of the court was not persuaded that the expansions in executive power in question were justified.[32] [31] [28]

Presidential Accountability[edit]

Federalist 70 has also been cited by the Supreme court as an authority on the importance of presidential accountability. [33] In Jones v. Clinton, the court weighed whether or not a sitting president could delay addressing civil litigation until the end of his/her term.[34] [35] The court cited Fed 70, stating that the president must be held accountable for his/her actions, and thus cannot be granted immunity from civil litigation.[36] Similarly, in Free Enterprise Fund v. Public Company Oversight Board the court ruled reaffirmed the importance of the unitary executive in creating accountability within the executive branch.[37] Writing the majority opinion, Chief Justice Roberts stated:

"The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magistrate himself. The Federalist No. 70, at 478" [37]

Roberts argued that the act in question deprived the president of the ability to hold members of an independent board accountable, thus freeing him/her of responsibility over the independent board’s actions and depriving the people of their ability to hold the president accountable.[37] [38]


References[edit]

  1. ^ a b c d e Pfiffner, James P. "Federalist No. 70: Is the President Too Powerful?." Public Administration Review 71.s1 (2011): s112-s117.
  2. ^ a b c d e Delahunty, Robert J., and John C. Yoo. "President's Constitutional Authority to Conduct Military Operations against Terrorist Organizations and the Nations That Harbor or Support Them, The." Harv. JL & Pub. Pol'y 25 (2001): 487.
  3. ^ a b c Mosier, Mark W. "The Power to Declare Peace Unilaterally." The University of Chicago Law Review (2003): 1609-1637.
  4. ^ a b c Yoo, John C. "War and the Constitutional Text." U. Chi. L. Rev. 69 (2002): 1639.
  5. ^ a b Boylan, Timothy S. "The Law: Constitutional Understandings of the War Power." Presidential Studies Quarterly 31.3 (2001): 514-528.
  6. ^ "Abraham Lincoln and Federalism." Abraham Lincoln and Federalism. N.p., n.d. Web. 10 Apr. 2014.
  7. ^ a b Loss, Richard. "Alexander Hamilton and the Modern Presidency: Continuity or Discontinuity?." Presidential Studies Quarterly (1982): 6-25.
  8. ^ Stone, Geoffry R. "Protecting the Nation While Upholding Our Civil Liberties." Chicago Tribune. Chicago Tribue, 22 Dec. 2013. Web. 10 Apr. 2014.
  9. ^ Palmer, Erin Louise. "Reinterpreting Torture: Presidential Signing Statements and the Circumvention of US and International Law." Human Rights Brief 14.1 (2006): 5.
  10. ^ a b Cooper, Phillip J. "George W. Bush, Edgar Allan Poe, and the use and abuse of presidential signing statements." Presidential Studies Quarterly 35.3 (2005): 515-532.
  11. ^ a b c Palmer, Erin Louise. "Reinterpreting Torture: Presidential Signing Statements and the Circumvention of US and International Law." Human Rights Brief 14.1 (2006): 5.
  12. ^ Cite error: The named reference pfiffner was invoked but never defined (see the help page).
  13. ^ Mayer, Jane. The dark side: The inside story of how the war on terror turned into a war on American ideals. Random House LLC, 2009.
  14. ^ Kreimer, Seth F. "Too Cloe to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror." U. Pa. J. Const. L. 6 (2003): 278.
  15. ^ a b c Chemerinsky, Erwin. "Assault on the Constitution: Executive Power and the War on Terrorism, The." UC Davis L. Rev. 40 (2006): 1.
  16. ^ Kreimer, Seth F. "Too Cloe to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror." U. Pa. J. Const. L. 6 (2003): 278.
  17. ^ Berry, Christopher R., and Jacob E. Gerse. "Unbundled Executive, The." U. Chi. L. Rev. 75 (2008): 1385.
  18. ^ Greenwald, Glenn. "Chilling Legal Memo from Obama DOJ Justifies Assassination of US Citizens." Theguardian.com. Guardian News and Media, 05 Feb. 2013. Web. 13 Apr. 2014.
  19. ^ "Secrecy Fetish Hurts Terror War." Cato Institute. N.p., n.d. Web. 13 Apr. 2014.
  20. ^ "American Civil Liberties Union." American Civil Liberties Union. N.p., n.d. Web. 12 Apr. 2014.
  21. ^ Bartosiewicz, Petra. "A Permanent War on Terror." Los Angeles Times. Los Angeles Times, 07 Dec. 2012. Web. 13 Apr. 2014.
  22. ^ Pope, Paul James. George W. Bush and the Unitary Executive Theory: Deconstructing Unitary Claims of Unilateral Executive Authority. ProQuest, 2008.
  23. ^ Hollis-Brusky, Amanda. "Helping ideas have consequences: Political and intellectual investment in the unitary executive theory, 1981–2000." Denver University Law Review 89.1 (2012): 197.
  24. ^ a b Printz v. U.S. Supreme Court of the United States. 27 June 1997. Find Law. Web. 13 Apr. 2014. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=521&invol=898.
  25. ^ PRINTZ v. UNITED STATES. The Oyez Project at IIT Chicago-Kent College of Law. 11 April 2014. http://www.oyez.org/cases/1990-1999/1996/1996_95_1478
  26. ^ Gold, Andrew S. "Formalism and State Sovereignty in Printz v. United States: Cooperation by Consent." Harv. JL & Pub. Pol'y 22 (1998): 247.
  27. ^ Simon, Kelly E. "Hamdi v. Rumsfeld." Geo. Immigr. LJ 17 (2002): 511.
  28. ^ a b c 343 U.S. 579; 72 S. Ct. 863; 96 L. Ed. 1153; 1952 U.S. LEXIS 2625; 21 Lab. Cas. (CCH) P67,008; 1952 Trade Cas. (CCH) P67,293; 62 Ohio L. Abs. 417; 47 Ohio Op. 430; 26 A.L.R.2d 1378; 30 L.R.R.M. 2172. LexisNexis Academic. Web. Date Accessed: 2014/04/13.
  29. ^ Westin, Alan F. The Anatomy of a Constitutional Law Case: Youngstown Sheet and Tube Co. V. Sawyer, the Steel Seizure Decision. Columbia University Press, 1990.
  30. ^ Anderson, James B. "Hamdi v. Rumsfeld: Judicious balancing at the intersection of the executive's power to detain and the citizen-detainee's right to due process." Journal of Criminal Law and Criminology (2005): 689-724.
  31. ^ a b Perkins, Jared. "Habeas Corpus in the War Against Terrorism: Hamdi v. Rumsfeld and Citizen Enemy Combatants." BYU J. Pub. L. 19 (2004): 437.
  32. ^ Simon, Kelly E. "Hamdi v. Rumsfeld." Geo. Immigr. LJ 17 (2002): 511.
  33. ^ LEXIS 3254; 65 U.S.L.W. 4372; 73 Fair Empl. Prac. Cas. (BNA) 1548; 73 Fair Empl. Prac. Cas. (BNA) 1549; 70 Empl. Prac. Dec. (CCH) P44,686; 97 Cal. Daily Op. Service 3908; 97 Daily Journal DAR 6669; 10 Fla. L. Weekly Fed. S 499. LexisNexis Academic. Web. Date Accessed: 2014/04/13.
  34. ^ CLINTON v. JONES. The Oyez Project at IIT Chicago-Kent College of Law. 12 April 2014. http://www.oyez.org/cases/1990-1999/1996/1996_95_1853#opinion
  35. ^ Cite error: The named reference “Jones” was invoked but never defined (see the help page).
  36. ^ Kasten, Martin. "Summons at 1600: Clinton v. Jones' Impact on the American Presidency." Ark. L. Rev. 51 (1998): 551.
  37. ^ a b c 130 S. Ct. 3138; 177 L. Ed. 2d 706; 2010 U.S. LEXIS 5524; 78 U.S.L.W. 4766; 22 Fla. L. Weekly Fed. S 685. LexisNexis Academic. Web. Date Accessed: 2014/04/13.
  38. ^ FREE ENTERPRISE FUND v. PUBLIC COMPANY OVERSIGHT BOARD. The Oyez Project at IIT Chicago-Kent College of Law. 06 April 2014. http://www.oyez.org/cases/2000-2009/2009/2009_08_861
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