September 11, 2025 • 12 mins
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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Episode Transcript
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Speaker 1 (00:00):
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 withus, and today we're talking
about Federalist no 70.
So, dr Beinberg, what was thecentral argument of Federalist
70?
Speaker 2 (00:18):
So I'm going to cheat a little bit and treat 70, 71,
and 72.
I'm going to pull parts ofthese other two since they're
like, literally it sayscontinued and he goes on.
So I'll sort of treat them.
I'll kind of treat themtogether here, but they're
effectively the core of thediscussion of the scope of
executive power.
So the core argument ofFederalist 70 is that you need
(00:40):
to have a strong and vigorousexecutive president.
But I think it's important whenmaking 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 iswhat the president does and
(01:00):
therefore the president does alot, therefore the president is
strong, therefore Fed 70.
When the argument in those trioof federalist papers is a lot
more subtle than that and infact what it is is saying we
understand what legislativepower is, we understand what
executive power is and we wantto build an executive that its
(01:23):
institutional design does thethings an executive should do.
Well, but it doesn't do thethings a legislature should do.
So for example, excuse me,hamilton says that you want
energy in your executive anddeliberation in your legislature
, and what in he goes throughand says is that what's a
(01:47):
feature in one branch is a bugin the other.
What's the purpose of thelegislature?
It's to set policy, it's tofigure out what the country is
going to do.
And that process is going to bemessy, 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 youwant it to happen.
(02:08):
Before you decide what yourcountry is actually going to do,
or at the state level, or youcan generalize this to any
lawmaking authority, you arerepresenting diverse peoples,
different economic, differentgeographic, different cultural,
different political, differentreligion, whatever right.
You're representing diverse,diverse cultures, citizenry.
(02:32):
So that's slow and messy, itshouldn't be efficient by design
.
By contrast, hamilton says youdo want your executive to be
able to act quickly because atthat point you are no longer
fundamentally deciding what thepolicy is.
That decision has alreadyhappened in the legislature.
(02:52):
And so what's fundamentally theexecutive supposed to be doing?
Implementing and executing thelaw, at least on the domestic
side.
Foreign policy is a separatequestion and this is part of
Hamilton's case.
This is one of the places whereyou see actually division
between Hamilton and Madison.
Later the debate is effectivelyhow much of the British
(03:15):
understanding of executive powerin foreign policy translated
over to the US Constitution orwas changed by it.
Hamilton largely wants to arguethat the foreign policy
authority of the president issimilar to that in Britain where
most foreign policy isbasically in the hands of the
executive.
In Britain where most foreignpolicy is basically in the hands
(03:36):
of the executive, except inexplicit exceptions such as
declaring war and ratifyingtreaties.
But otherwise Hamiltonbasically wants to say executive
power is a foreign policy,foreign policy is executive
power.
Madison wants to say no.
The same sort of divisionbetween the legislature and the
executive operates in foreignpolicy.
So foreign policy is obviouslya little different.
(04:01):
But Hamilton's case.
Obviously for foreign policyyou want quick efficiency, you
want decision making, you needsomebody to quickly deal with an
invasion is happening, or weneed to have one person or one
person's sort of representativesat 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 afundamental point person on the
(04:22):
foreign policy side and I thinkthat part is pretty
straightforward andunderstandable to most people
because that looks like it howit is today.
But the domestic policy side Ithink is easy to lose track of.
So the executive should actwith vigor and decision, as he
says in Federalist 71, and youdon't want a feeble
administration.
But administration means sortof executing and implementing
(04:45):
the law, because once you'vedecided what the law is, it
should be executed andimplemented efficiently and
cleanly and quickly, because atthat point I'm being redundant,
but it's just so easy to losetrack of this.
Once it's decided what thepolicy is, the execution should
be clean, and so Madison says so, jimmy Hamilton says, and
(05:06):
therefore we want the executiveto be built in a way that
optimizes he doesn't use theterm efficiency, but that's very
clearly what he sort of has inmind that that should be
vigorous, robust, efficient andcleanly accountable.
And this connects to anargument that he develops in
Federal 70, 71, and 72.
And it's another argument that'soften misunderstood this idea
(05:29):
of the unitary executive.
A few years ago, when I wasteaching comm op, a student came
up to me and asked me if I'dseen the movie Vice, which I
guess is about Dick Cheney andGeorge W Bush.
I think Christian Bale playsDick Cheney, if I recall
correctly.
Anyway, there's a section inthere, the student said, where
(05:49):
they explain and I'm puttingexplain in quotes here what the
unitary executive is.
And they quote a Supreme Courtjustice to say the unitary
executive means the presidentcan do whatever he wants.
Not only is that inconsistentwith what that justice has
actually written and other manyother opinions, but it's
inconsistent with what theactual logic of the unitary
executive is, which is you wantone person in executing the law
(06:15):
because you want clearaccountability if the law is
executed badly.
And so if the unitary executivein this instance it's similar
to the discussion we talkedabout a few sessions ago on
Federalist 39.
You want effectively a clearrule of accountability and you
want to basically have yourinstitutional design to reflect
(06:38):
that.
And so the execution of the lawshould be efficient and quick
and you should know who to blameIf the law is executed badly.
In the United States it isultimately, if it's a federal
law, it's the president's fault,because the president can hire
with the consent of the Senatethat's a little exception but
(06:58):
fire people the president can'tsay.
Well, you know it's unfortunate, you just stuck me with that
knucklehead treasury secretary.
There's nothing I can do aboutthat.
That had been the model intothe British system.
Oh, the king's advisor is theone's messing?
Oh, it's the king's privycouncil that's messing it up.
And so you have this dividedblame.
Hamilton says you don't havethat in the US system.
Ultimately, everyone isaccountable.
(07:21):
And so this is where I wassaying there's the Fed 39
parallel, because in Federalist39, as we talked about, the
scope of lawmaking is federal,the execution is national.
Unitary executive is not aboutthe scope of presidential power,
it's about the execution of it,the implementation.
It's a chain of command, right?
(07:43):
So you can have, in fact, avery, very, very robust
understanding of a unitaryexecutive, which is the
president, can and should beable to control the entirety of
the executive branch, alongsidea narrow interpretation of what
that's.
Actual powers are where mostpower is supposed to be, with
the legislature.
So, just to make this a littlemore concrete, federalist 72
(08:07):
begins with the discussion ofwhat executive power looks like,
and he says, effectively, it'sgoing to be the conduct of
foreign negotiations, thepreparatory plans of finance,
the disbursement of the publicmonies in conformity to the
appropriation of the legislature, right, these are the kinds of
things.
This isn't fundamentallysetting the policy, this is sort
(08:28):
of administrativeimplementation.
And so you know, we often thinkand you'll hear, and this is why
I'm really prickly aboutFederalist 70.
You will hear this.
This president will dosomething and say, ah, I have
power to do that becauseFederalist 70 says the
presidency should be vigorous.
But the idea, for example andI'll use bipartisan or slash
(08:49):
nonpartisan examples here theidea that the executive power
could be used to not enforce alaw, which we have examples of
presidents from both partiesdoing in the last few years,
which we have examples ofpresidents from both parties
doing in the last few years thatwould be antithetical to the
idea of the executive power thatit's supposed to take care that
the laws be faithfully executed.
It can't unmake a policyunilaterally.
And similarly and obviously thescope of executive orders
(09:13):
varies in terms of how much andhow faithfully they're actually
implementing a congressionalstatute.
But the idea that the executivecan fundamentally create policy
, at least on the domestic side,would similarly be something
that would have horrified thefounders, because they just
didn't understand that to be thescope of the executive, that
fundamental domesticpolicymaking has to be in the
(09:35):
hands of the legislature.
And so you build a legislatureand an executive in federal 70
that look very different becausethey are doing fundamentally
different things.
The case for a unitaryexecutive disappears if the
president is doing legislativework, and so Federalist 70 is a
he sort of skims over it lightlybecause he assumes most
(09:59):
Americans are going to know yes,the legislature is the
policymaking part, the executiveis the executing part.
He doesn't elaborate on it thatmuch because the assumption is
we all know this.
But as we've lost track of thatover time, it's easy to lose
this, in fact, fundamentalargument of Federalist 70, which
again is we built theinstitution to most sensibly
(10:22):
implement what that institutionis supposed to do.
Speaker 1 (10:25):
Listeners.
We are going to go a little bitdeeper into Federalist 70
because there's a couple morequestions that I have for Dr
Bionberg.
So thank you.
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 withus, and today we're talking
about Federalist no 70.
So, dr Beinberg, what was thecentral argument of Federalist
70?
Speaker 2 (00:18):
So I'm going to cheat a little bit and treat 70, 71,
and 72.
I'm going to pull parts ofthese other two since they're
like, literally it sayscontinued and he goes on.
So I'll sort of treat them.
I'll kind of treat themtogether here, but they're
effectively the core of thediscussion of the scope of
executive power.
So the core argument ofFederalist 70 is that you need
(00:40):
to have a strong and vigorousexecutive president.
But I think it's important whenmaking 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 iswhat the president does and
(01:00):
therefore the president does alot, therefore the president is
strong, therefore Fed 70.
When the argument in those trioof federalist papers is a lot
more subtle than that and infact what it is is saying we
understand what legislativepower is, we understand what
executive power is and we wantto build an executive that its
(01:23):
institutional design does thethings an executive should do.
Well, but it doesn't do thethings a legislature should do.
So for example, excuse me,hamilton says that you want
energy in your executive anddeliberation in your legislature
, and what in he goes throughand says is that what's a
(01:47):
feature in one branch is a bugin the other.
What's the purpose of thelegislature?
It's to set policy, it's tofigure out what the country is
going to do.
And that process is going to bemessy, 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 youwant it to happen.
(02:08):
Before you decide what yourcountry is actually going to do,
or at the state level, or youcan generalize this to any
lawmaking authority, you arerepresenting diverse peoples,
different economic, differentgeographic, different cultural,
different political, differentreligion, whatever right.
You're representing diverse,diverse cultures, citizenry.
(02:32):
So that's slow and messy, itshouldn't be efficient by design
.
By contrast, hamilton says youdo want your executive to be
able to act quickly because atthat point you are no longer
fundamentally deciding what thepolicy is.
That decision has alreadyhappened in the legislature.
(02:52):
And so what's fundamentally theexecutive supposed to be doing?
Implementing and executing thelaw, at least on the domestic
side.
Foreign policy is a separatequestion and this is part of
Hamilton's case.
This is one of the places whereyou see actually division
between Hamilton and Madison.
Later the debate is effectivelyhow much of the British
(03:15):
understanding of executive powerin foreign policy translated
over to the US Constitution orwas changed by it.
Hamilton largely wants to arguethat the foreign policy
authority of the president issimilar to that in Britain where
most foreign policy isbasically in the hands of the
executive.
In Britain where most foreignpolicy is basically in the hands
(03:36):
of the executive, except inexplicit exceptions such as
declaring war and ratifyingtreaties.
But otherwise Hamiltonbasically wants to say executive
power is a foreign policy,foreign policy is executive
power.
Madison wants to say no.
The same sort of divisionbetween the legislature and the
executive operates in foreignpolicy.
So foreign policy is obviouslya little different.
(04:01):
But Hamilton's case.
Obviously for foreign policyyou want quick efficiency, you
want decision making, you needsomebody to quickly deal with an
invasion is happening, or weneed to have one person or one
person's sort of representativesat 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 afundamental point person on the
(04:22):
foreign policy side and I thinkthat part is pretty
straightforward andunderstandable to most people
because that looks like it howit is today.
But the domestic policy side Ithink is easy to lose track of.
So the executive should actwith vigor and decision, as he
says in Federalist 71, and youdon't want a feeble
administration.
But administration means sortof executing and implementing
(04:45):
the law, because once you'vedecided what the law is, it
should be executed andimplemented efficiently and
cleanly and quickly, because atthat point I'm being redundant,
but it's just so easy to losetrack of this.
Once it's decided what thepolicy is, the execution should
be clean, and so Madison says so, jimmy Hamilton says, and
(05:06):
therefore we want the executiveto be built in a way that
optimizes he doesn't use theterm efficiency, but that's very
clearly what he sort of has inmind that that should be
vigorous, robust, efficient andcleanly accountable.
And this connects to anargument that he develops in
Federal 70, 71, and 72.
And it's another argument that'soften misunderstood this idea
(05:29):
of the unitary executive.
A few years ago, when I wasteaching comm op, a student came
up to me and asked me if I'dseen the movie Vice, which I
guess is about Dick Cheney andGeorge W Bush.
I think Christian Bale playsDick Cheney, if I recall
correctly.
Anyway, there's a section inthere, the student said, where
(05:49):
they explain and I'm puttingexplain in quotes here what the
unitary executive is.
And they quote a Supreme Courtjustice to say the unitary
executive means the presidentcan do whatever he wants.
Not only is that inconsistentwith what that justice has
actually written and other manyother opinions, but it's
inconsistent with what theactual logic of the unitary
executive is, which is you wantone person in executing the law
(06:15):
because you want clearaccountability if the law is
executed badly.
And so if the unitary executivein this instance it's similar
to the discussion we talkedabout a few sessions ago on
Federalist 39.
You want effectively a clearrule of accountability and you
want to basically have yourinstitutional design to reflect
(06:38):
that.
And so the execution of the lawshould be efficient and quick
and you should know who to blameIf the law is executed badly.
In the United States it isultimately, if it's a federal
law, it's the president's fault,because the president can hire
with the consent of the Senatethat's a little exception but
(06:58):
fire people the president can'tsay.
Well, you know it's unfortunate, you just stuck me with that
knucklehead treasury secretary.
There's nothing I can do aboutthat.
That had been the model intothe British system.
Oh, the king's advisor is theone's messing?
Oh, it's the king's privycouncil that's messing it up.
And so you have this dividedblame.
Hamilton says you don't havethat in the US system.
Ultimately, everyone isaccountable.
(07:21):
And so this is where I wassaying there's the Fed 39
parallel, because in Federalist39, as we talked about, the
scope of lawmaking is federal,the execution is national.
Unitary executive is not aboutthe scope of presidential power,
it's about the execution of it,the implementation.
It's a chain of command, right?
(07:43):
So you can have, in fact, avery, very, very robust
understanding of a unitaryexecutive, which is the
president, can and should beable to control the entirety of
the executive branch, alongsidea narrow interpretation of what
that's.
Actual powers are where mostpower is supposed to be, with
the legislature.
So, just to make this a littlemore concrete, federalist 72
(08:07):
begins with the discussion ofwhat executive power looks like,
and he says, effectively, it'sgoing to be the conduct of
foreign negotiations, thepreparatory plans of finance,
the disbursement of the publicmonies in conformity to the
appropriation of the legislature, right, these are the kinds of
things.
This isn't fundamentallysetting the policy, this is sort
(08:28):
of administrativeimplementation.
And so you know, we often thinkand you'll hear, and this is why
I'm really prickly aboutFederalist 70.
You will hear this.
This president will dosomething and say, ah, I have
power to do that becauseFederalist 70 says the
presidency should be vigorous.
But the idea, for example andI'll use bipartisan or slash
(08:49):
nonpartisan examples here theidea that the executive power
could be used to not enforce alaw, which we have examples of
presidents from both partiesdoing in the last few years,
which we have examples ofpresidents from both parties
doing in the last few years thatwould be antithetical to the
idea of the executive power thatit's supposed to take care that
the laws be faithfully executed.
It can't unmake a policyunilaterally.
And similarly and obviously thescope of executive orders
(09:13):
varies in terms of how much andhow faithfully they're actually
implementing a congressionalstatute.
But the idea that the executivecan fundamentally create policy
, at least on the domestic side,would similarly be something
that would have horrified thefounders, because they just
didn't understand that to be thescope of the executive, that
fundamental domesticpolicymaking has to be in the
(09:35):
hands of the legislature.
And so you build a legislatureand an executive in federal 70
that look very different becausethey are doing fundamentally
different things.
The case for a unitaryexecutive disappears if the
president is doing legislativework, and so Federalist 70 is a
he sort of skims over it lightlybecause he assumes most
(09:59):
Americans are going to know yes,the legislature is the
policymaking part, the executiveis the executing part.
He doesn't elaborate on it thatmuch because the assumption is
we all know this.
But as we've lost track of thatover time, it's easy to lose
this, in fact, fundamentalargument of Federalist 70, which
again is we built theinstitution to most sensibly
(10:22):
implement what that institutionis supposed to do.
Speaker 1 (10:25):
Listeners.
We are going to go a little bitdeeper into Federalist 70
because there's a couple morequestions that I have for Dr
Bionberg.
So thank you.
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