restricted access 1. Creating the Federal Magistracy: Discretionary Power and the Energetic Executive
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18 In the annals of American political science, Alexander Hamilton is often remembered for his prescription for a strong federal executive power: an administration replete with the necessary “ingredients” of “energy,” including unity, duration, adequate support, and competent powers.1 Although his general philosophy on executive power is well known, scholars have been much less interested in how the first treasury secretary converted his political theory into an enduring practical reality.2 Hamilton spoke of the need for energy in executive action, but in practice and under the law, how did an energetic, republican executive act without overstepping his authority? Hamilton’s answer to this delicate and momentous question relied on an implicit assumption of a limited, legally bound prerogative power—what customs collector Otho H. Williams referred to as Hamilton’s “doctrine of discretionary Executive power.”3 In order to translate the theoretical executive power described in The Federalist essays into a smoothly running, capable, and efficient administration, Hamilton argued that an energetic executive was also a magisterial executive—that is, an administrator empowered to act with discretionary license. He spent his public career articulating enduring legal arguments to define and defend the executive’s practical prerogative power, and in doing so, Hamilton transformed early republican political science into the foundations of American administrative law.4 Creating the Federal Magistracy: Discretionary Power and the Energetic Executive one x Creating the Federal Magistracy 19 This Hamiltonian doctrine of executive discretion has gone mostly unnoticed because Hamilton, the early republic’s premier administrative genius, expressed it only through occasional yet careful and conscientious legal arguments dispersed throughout his voluminous correspondence.5 Hamilton advocated for executive discretion through open letters to the public, as well as through arguments made in behind-the-scenes memos and in day-to-day correspondence with Congress, district attorneys, and other federal officials. Hamilton’s approach to defending executive discretion was produced largely on demand and as needed because during the first years after American independence, the idea of discretionary executive power proved to be complicated, if not outright controversial, in a constitutional republic. Executive power carried with it the unsavory taint of monarchism, and thus the potential for despotic abuse. During and after the Revolutionary War, newly ratified state constitutions either stripped state governors of their Crownbestowed prerogatives or diluted their power in favor of legislative authority .6 Nationally minded delegates to the 1787 Philadelphia Convention also expressed concerns about excessive executive power, and even President George Washington approached executive action cautiously so as to avoid the charge of being “monarchical.”7 Despite this sentiment, the desire for a robust federal executive persisted among nationally minded Americans during the Confederation era and grew stronger under the Federalist-dominated Congresses of the 1790s.8 During these years, Congress conceded that executive discretion was a necessary and convenient way to administer federal law; the House and Senate saw fit to grant the president certain discretionary powers in matters of calling out the militia, raising additional regiments in the regular army, fortifying ports, closing public debt-related transactions, administering embargos, and overseeing administrative districts and their staffs. Early Congresses also vested discretion in subordinate executive officials, especially in the valuation of goods and property for assessment, determining compliance with federal rules and policy, and initiating litigation to prosecute violators of federal law.9 These grants of executive prerogative were limited and based in statutory authority, however, and as such, they could be permitted and revoked at Congress’s will. But to Hamilton, the business of administering good government required more nuanced discretion and administrative maneuvering than statutory language could articulate or anticipate. Moreover, exercises of administrative discretion often amounted to implementing executive policy that Hamilton and Washington did not want Congress or the courts 20 chapter one to overturn. For Hamilton, prerogative powers were necessary but limited tools for the efficient administration of government. Restraining executive discretionary power not only prevented abuses of power, but Hamilton also intended for it to deter opposition to the administration’s actions and therefore to discourage interference with his policy agenda. In order to make the case that executive power required discretionary license, Hamilton made three moves. First, he wrote legal briefs, scattered across a variety of sources, about the discretionary nature of executive power: in his Federalist and Pacificus essays, in customs circulars, and in reports and letters addressed to Congress. Next, Hamilton translated his legal arguments about executive prerogatives into practical administrative precedent. Finally...


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