Adam J. White: A republic, if we can keep it

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.”

Jane Chong: This is not the Senate the Framers imagined

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.