I happen to have Alexander Hamilton right here with me...

Drawing by David Levine, New York Review of Books, 1964.

 

It's a little amusing that Roberts is citing Breyer there, in Clinton v. Jones, that's the Paula Jones case, where Breyer is arguing, in a unanimous decision (Democrat Stevens wrote the opinion), that Clinton was not immune (from civil lawsuits based on private conduct), in spite of the fact that Clinton was indeed the president at the time and the case was certainly "distracting his time and energy", the thing the Framers are said to have been so particularly tender about, and in spite of the fact that this was only the third time in American history that such a suit had been filed against a sitting president. Clinton had failed to prove, Breyer thought, that the US government needed for Clinton to have the immunity:

As Madison pointed out in The Federalist No. 51, "[t]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Id., at 321-322 (emphasis added). I agree with the majority's determination that a constitutional defense must await a more specific showing of need; I do not agree with what I believe to be an understatement of the "danger." 

It seems to me that with Trump v. United States the Court has turned this upside down, shifting the burden of proof from the offender to the offended. Henceforth (I once knew a cat called Henceforth, and a pretty good cat too), it will just be assumed that the president shouldn't be asked to answer any questions, even after they've left office, nor should his White House employees, even when they're glorified nursemaids for the cranky old psychopath, like poor Hope Hicks helping him ride his way through the scandal of the Access Hollywood video. She was part of the apparatus enabling Trump's "energetic, vigorous, decisive and speedy execution of the laws" when he was paying his hush money debt to Michael Cohen with $420,000 in checks disguised as legal fees so nobody would know about it, so it looks like her testimony in the New York case should not have been given, and his conviction now seems likely to turn into a mistrial, even though you'd be hard put to name any occasions when he executed any laws at all beyond his photo op bill-signing moments with the presidential Sharpie.

It would be fun to put that on trial, wouldn't it?  "Do you recall faithfully executing any laws in 2017, Mr. Trump? Can you list some of those for the jury?" But of course it's unimaginable.

It's also difficult to imagine a Supreme Court majority now citing Federalist 51, with its focus on checks and balances among the three branches, and Madison wistfully letting on how much he wished he could have had the president and Supreme Court justices directly elected:

it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it.

The checks and balances seem like a dead letter right now, as the Court shores up its position of supremacy and plentiful "gratuities" for themselves in the next Trump administration, in which the executive will be able to commit all the crimes it wants, but not to accomplish anything (with the overturning of the Chevron principle), and the legislature, with its narrow majorities for whichever party, will be unable to do much of anything at all, in particular anything about the Court.

One of Trump's lawyers, Will Scharf, was on the radio this morning explaining how it's going to work in terms of the beloved SEAL team assassination example: when Trump gives the military an illegal order, they are not allowed to obey it, so everything will be fine. I don't know whether he means they're sure not to do it or sure to get punished if they do (but Scharf's working for Republicans, so probably the latter). It's true that no court can charge him himself with a crime for doing it, since being commander-in-chief is a "core constitutional power" if ever there was one, but the House can still impeach him it if feels like it. Scharf didn't mention that impeachment is now such pointless theater, with no possibility of getting 67 senators to vote to convict anybody, that it's become too embarrassing even for Comer and Jordan.

Now it's Federalist 70 that the majority likes to quote, with its demand that the president should be "energetic", which they have interpreted to mean that he (they're definitely thinking "he") must be allowed to commit crimes while exercising his core constitutional powers (absolute immunity), and probably when he's in an official situation, like sitting at the desk in the Oval Office, even if he's sitting there signing checks on the Trump Organization account paying back a large illegal campaign loan from his former lawyer ("presumptive" immunity), because if he's faced with the prospect of being prosecuted for them after he leaves office, he won't be able to act with the necessary energy and vigor and decisiveness. You'd think the most comfortable way of dealing with the problem would be for him just not to commit any crimes, but that's too simple for this Court. He dare not pause even for a moment to wonder whether he might be committing a crime, because that could make him "unduly cautious in the discharge of his official duties" when he needs to be "fearless":

There... “exists the greatest public interest” in providing the President with “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.” Ibid. (quoting Ferri v. Ackerman, 444 U. S. 193, 203 (1979)). Appreciating the “unique risks to the effective functioning of government” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of his official duties,” we have recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.”

The thing is, they're not reading Federalist 70. They don't even know how to read it in any way going beyond what they may have been able to understand when they were in 8th grade. They don't know what the Federalist Papers are or why they exist, in the first place. They treat them as a sophisticated theory of what the Constitution says, as if Madison had discovered it in a library someplace instead of writing it himself. Marketing is what they are, campaign materials meant to convince the skeptical voters (in particular of New York State) to vote for the thing, by telling them how great it's going to be when it's put into effect, and how much better than any of the possible alternatives, which they certainly didn't entirely believe themselves (and not for the same reasons, since Madison and Hamilton disagreed with each other about most things).

And then they use the text the way some people use the Bible, as a source of decontextualized phrases of an inspirational character that they can daisy-chain into the argument they wanted to make in the first place. Federalist 70, for example, is the garden from which they plucked the "unitary executive" theory (according to which the president is supposed to be the unchallenged king of the entire executive branch, making all its decisions), but only because they aren't aware—they don't know enough history themselves, and they aren't reading the text properly—of the argument Hamilton himself is making, which is very specific to the debates of the Constitutional Convention. 

The overarching debate at the Convention was between advocates of two different draft constitutions, one written by Madison and favored by more populous states, the Virginia Plan, with a legislature of two chambers, both with proportional representation by state population, and one drafted by William Paterson and favored by less populated states, the New Jersey Plan, for a monocameral legislature with one vote for each state, as under the Articles of Confederation (in the end the Convention went with the Virginia Plan, but adopted a New Jersey–like compromise for the Senate, with two votes for each state, no matter how few people the state had, making it the undemocratic monster house it is today).

The two plans also differed in their ideas of how to structure the executive branch, both of them very historically unprecedented, as was the whole idea, of course, of a constitutional republic; the Virginia Plan called for it to be headed by a one-person president, and the New Jersey Plan for an Executive Council elected to a single one-year term and completely replaced every year. 

Hamilton had his own proposal for a "British Plan" with a kinglike, veto-wielding Governor and Senators serving for life, alongside a more frequently elected lower house, and I think there must have been an analogue to the British Privy Council which the Governor would select from among the legislators to advise him, but I'm not finding sources that mention it. The plan was obviously a nonstarter, anyway, and Hamilton loyally backed the winning document, as we know, in spite of his personal reservations.

That's what he is writing about in Federalist 70, though he couches it in analogues from the history they'd all learned as children: the New Jersey Plan represented by the Roman Republic and its duumvirate of consuls, and his own idea by Great Britain, where the king had to share power with the advisory council of legislators and magistrates from which the cabinet as we know it emerged, as a committee of the Privy Council, in the 1710s. Both these approaches, Hamilton argues, will lead to disunity, and therefore a lack of "energy", in a republic: the consuls will inevitably disagree with each other, a non-royal elected executive person will contend for power with the non-noble elected members of the council in a way that could not happen in Britain, with its reverence for the sovereign (the unelected American-style cabinet of secretaries rather than ministers, wholly dependent on the president, won't do that).

But "energy" is the least important issue, in any case. The disputes that will arise in a plural executive will have much worse effects than that, in the first place partisanship (which is OK in a legislature, but not an executive, in Hamilton's view):

quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good se se, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy.

And then there's bad government—divided responsibility leads to irresponsibility,  mismanagement, and corruption and crime that may escape punishment because you can't prove who was responsible: 

But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious [from Latin obnoxius, "deserving punishment" in the English of this period] to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable. "I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point.'' These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium, of a strict scrunity into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties?

That's where Federalist 70 ends up, with where the buck stops, in theory. The purpose of the singular executive is to take responsibility when things go south, to be accountable as we say nowadays, to take punishment it's that kind of bad, to accept dishonor if it's that kind (which is of course more important to these 18th-century gentlemen). It's to identify the culprit and stop excuse-making. 

Which is not to say his theory is right. We accept various kinds of independent power inside the executive for good reason; in the Federal Reserve, and the roles of inspectors general and special counsels, and the Constitution itself gives Congress some executive authority and and the presidency some legislative power (or did until last week), and as I've been saying since the advent of Trump, the Justice Department must be made more independent of the White House, because presidents haven't necessarily been gentlemen for a long time and once in a while are for real gangsters (Nixon, Trump). As are some Supreme Court justices, it seems.

But what Hamilton did say is worth repeating: immunity for the chief executive, "absolute" or "presumptive", is exactly what he is against in this piece. He wants the bastards to get caught! 

And so should we all. Shame on Roberts for his complicity in this garbage opinion.