Federalist No. 67, published by Alexander Hamilton on March 11, 1788, opens his eleven-essay defense of the proposed presidency by attacking a single false claim: that the new Constitution would let the President fill vacant Senate seats. A summary of Federalist 67 is really a summary of that attack. Hamilton picked one provably wrong accusation, dismantled it against the text of the Constitution, and used the exposure to cast doubt on the wider Anti-Federalist charge that the executive branch was a monarchy dressed in republican clothes.
What Hamilton Was Answering
An Anti-Federalist writer publishing under the name “Cato,” widely believed to be New York Governor George Clinton, had told readers that the proposed Constitution handed the President power over Senate vacancies. That specific claim is what Federalist 67 was written to answer. Hamilton was not trying, in this essay, to defend every presidential power on the table. He was trying to catch the opposition fabricating on a checkable point so that their broader warnings about kingly power would lose their force.
Hamilton described the accusation in blunt terms, writing that “the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is EXPRESSLY allotted to the Executives of the individual States.”1The Avalon Project. The Federalist Papers No. 67 The rest of the essay is his proof.
The Senate Vacancy Claim and Why It Was Wrong
Hamilton walked through the actual constitutional text. Under Article I, Section 3, senators are chosen by their state legislatures. When a Senate seat becomes vacant during a state legislature’s recess, the governor of that state may make a temporary appointment until the legislature returns. The President has no role in the process at any stage.
Cato had reached his claim by misreading a different provision, the Recess Appointments Clause in Article II, which lets the President temporarily fill federal vacancies during recesses of the United States Senate. Hamilton treated the misreading as deliberate rather than careless. In his framing, an opponent willing to twist a plain provision into its opposite could not be trusted on the harder questions about executive power that the following essays would take up.
The Appointment Power as Hamilton Described It
Hamilton used the ordinary appointment process to make his affirmative case that the presidency was not monarchical. Article II, Section 2 provides that the President nominates candidates for federal office, but no nominee takes a seat without the Senate’s advice and consent.2Constitution Annotated. Article II Section 2 Clause 2 The rule reaches ambassadors, federal judges, and every other officer whose appointment the Constitution does not assign elsewhere.
A king appoints whomever he pleases. The proposed President could seat no one without the agreement of a separate elected body. That, in Hamilton’s telling, was the structural point: the Constitution splits the appointment function so that the President selects and the Senate filters. He treated the filter as a real restraint. A president who nominated a crony or an incompetent faced the prospect of a public rejection, and that prospect created a political reason to choose better candidates from the start.
He also compared the proposed office to the governorship of his own state. New York’s governor exercised appointment power through a Council of Appointment, an arrangement Hamilton described as offering less independence than the federal Senate would. His summary was that the President’s authority over appointments was “in few instances greater, in some instances less, than those of a governor of New York,” and that calling it a royal prerogative required ignoring the text.1The Avalon Project. The Federalist Papers No. 67
The Recess Appointments Clause
The second provision Hamilton examined is the one Cato had distorted. Article II, Section 2, Clause 3 states that the President “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”3Constitution Annotated. Article II Section 2 Clause 3
Hamilton called this power “nothing more than a supplement” to the ordinary appointment process, existing “for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.”1The Avalon Project. The Federalist Papers No. 67 The reasoning was practical. The Senate cannot sit permanently. Offices cannot stand empty for months. When the Senate is away and a position opens, someone has to fill it temporarily or public business stops.
Hamilton emphasized two limits built into the clause. Commissions issued this way expire automatically at the end of the Senate’s next session, meaning any recess appointee serves only until the Senate can weigh in through the regular process. And Hamilton read the phrase “may happen during the recess” narrowly, arguing it covered only vacancies that arose while the Senate was away, not those that already existed before the recess began. That narrow reading would restrict the clause’s reach considerably, and it remained contested for the next two centuries.
Where Federalist 67 Sits in the Series
No. 67 is the first of eleven consecutive Hamilton essays on the executive branch, running through No. 77. The essays that follow take up presidential election, comparison to the British king and the New York governor, the case for a single executive rather than a council, the four-year term, re-eligibility, the veto, military command, the pardon power, treaty-making, and the appointment power in fuller detail. No. 67 was written as an opener rather than a survey. It clears the ground by showing that opposition arguments about the presidency could not be taken at face value, and it leaves the substantive defenses of specific powers to the essays that come after.
How the Clause Hamilton Discussed Has Been Read Since
Hamilton’s narrow reading of “may happen during the recess” did not survive in the Supreme Court. In NLRB v. Noel Canning, decided in 2014, the Court adopted a broader interpretation on nearly every contested point.4Justia U.S. Supreme Court. NLRB v. Canning, 573 U.S. 513 (2014)
The Court held that “the Recess” covers both the break between formal sessions of Congress and breaks within a session, as long as the recess is of substantial length. It drew a practical line: fewer than ten days is presumptively too short to trigger the appointment power, and three days is categorically too short.5Congress.gov. Overview of Recess Appointments Clause On “may happen,” the Court rejected Hamilton’s narrow reading and held that the clause reaches both vacancies that first arise during a recess and vacancies that existed beforehand and remain unfilled when the Senate leaves. The Court acknowledged the ambiguity in the text, noted that Thomas Jefferson had recognized it could be read either way, and concluded that historical practice supported the broader reading.
The Court also sided with the Senate on the modern practice of holding pro forma sessions during breaks. Because the Senate could theoretically pass legislation by unanimous consent during those brief gavel-ins, the Court treated them as real sessions, holding that “the Senate is in session when it says that it is,” provided it retains the capacity to conduct business under its own rules.5Congress.gov. Overview of Recess Appointments Clause The practical result is that the Senate can block recess appointments by refusing to formally recess, a workaround Hamilton had no occasion to anticipate in 1788.