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Alongside Alexander Hamilton, George Washington helped set a precedent for the use of executive power.

"Alexander Hamilton," John Trumbull, Detroit Publishing Co., Library of Congress
"Alexander Hamilton," John Trumbull, Detroit Publishing Co., Library of Congress

While Americans admire George Washington for the dignity and restraint he exercised as the young republic’s first president, Alexander Hamilton, Washington’s former aide-de-camp and first secretary of the treasury, is often remembered for his advocacy of a strong and energetic national executive. Although Hamilton’s contemporary detractors accused him of undermining America’s experiment in government with the taint of monarchy, Hamilton consistently touted what he considered to be the many benefits of a “vigorous Executive” before, as well as during, his tenure in Washington’s cabinet. While our founding statesmen disagreed about the might of the executive branch, the U.S. Constitution, ratified in 1788, provided a blueprint for executive power.

Understanding the constitutional foundations of executive power begins with a close reading of Article II, the framework for the executive branch. In contrast to Article I, which describes Congress and the nature of legislative power across 10 sections of text, Article II contains only four sections. Yet length is deceiving here—whereas Congress’s legislative powers are specifically limited to only those “herein granted” (Article I, section 1), all of the powers inherently executive in nature are vested in the executive branch through Article II. In other words, because the Constitution comprehensively grants that “The executive power shall be vested in a President of the United States of America” (Article II, section 1), the president is empowered with any and all powers considered to be executive in nature (subject only to the few qualifications and limitations further stipulated in the text). This amounts to an expansive constitutional foundation for a robust, Hamiltonian conception of executive power.

Although Article II broadly grants power to the executive, it does not always provide direct answers to the practical questions put to it. As treasury secretary, Hamilton regularly encountered one of the trickiest, and most frequently occurring, questions about executive power to arise in a republic bound by the rule of law: To what extent does the executive have discretionary authority to unilaterally interpret and execute the law?

Executive discretion smacked of monarchy, as this authority to interpret statutory or constitutional law harkened back to the British king’s prerogative powers. By virtue of his divine right, and later, his constitutional standing, the British monarch enjoyed enormous discretion to intervene in the legislative process, to bestow privileges and titles, and to execute and adjudge the laws of the land through his appointed magistrates. That the framers of the Constitution gave the president a qualified veto and the power to pardon indicates that they found some elements of the king’s prerogative to be essential for their constitutional republic. Still, the extent of the president’s inherited prerogative—his discretionary powers—remained a controversial question during the first decades of the American republic. Washington was keenly aware of the contentious nature of his presidential prerogatives and proceeded cautiously when he considered exercising them.

The declaration of American neutrality in 1793 became the most important and consequential exercise of executive discretion during Washington’s presidency. While France convulsed from internal revolution and war with its European neighbors, President Washington found himself in a delicate spot: The 1778 Franco-American Treaty of Amity and Commerce seemed to require the U.S. to come to the aid of its former ally, but Washington and his cabinet thought it best for the young nation to remain neutral in the escalating conflict. In order to make the case for America’s neutrality, Washington had to convincingly interpret the 1778 treaty, the legally binding law of the land, so as to absolve the U.S. of any legal obligation to fight alongside France. To do so, Washington and his cabinet reasoned that France’s war-making was a self-inflicted, offensive action not covered by the terms of the treaty which instead obligated only that the U.S. come to France’s defense. In coming to this conclusion, and by subsequently issuing the controversial Neutrality Proclamation, Washington exercised his executive discretion to unilaterally interpret the law of the land and to execute it accordingly.

Alexander Hamilton then defended the president’s prerogative to interpret the treaty and to issue the proclamation with one of U.S. history’s clearest, most enduring justifications for constitutional executive discretion. Writing under the pen name Pacificus, Hamilton argued:

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. In order to the observance of that conduct ... it was necessary for the President to judge for himself whether there was anything in our treaties incompatible with an adherence to neutrality. Having judged that there was not. ... it was [the President’s] duty, as Executor of the laws, to proclaim the neutrality of the Nation.

By building upon the broad foundations of executive power articulated in Article II, as well as the necessary practice of interpreting law in order to execute it, Hamilton, in collaboration with Washington, set a precedent for the responsible, but still vigorous and independent, exercise of executive discretion. Their resolve benefited the young republic in 1793 by keeping a fledging nation from international war, and to this day their wisdom continues to inform us about the constitutional foundations of a strong and energetic executive.

"George Washington," unknown artist, after Gilbert Stuart, c. 1800.

Alexander Hamilton, after Alonzo Chappel. Library of Congress.

About the Author

Dr. Kate Elizabeth Brown, recipient of the 2014-2015 James C. Rees Fellowship on Leadership at the Washington Library, is an assistant professor of history at Western Kentucky University specializing in American legal and constitutional history and the early republic. She is author of the book, Alexander Hamilton and the Development of American Law.

Listen to our conversation with Dr. Brown at the Washington Library