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Tillman and Bailey on Federalist No. 77

Seth Barrett Tillman has written a new article entitled “The Puzzle of Hamilton’s Federalist No. 77″ [forthcoming 2010 in the Harvard Journal of Law and Public Policy], in which he takes a fresh look at Hamilton’s statement that “[t]he consent of [the Senate] is necessary to displace [an officer] as well as to appoint.”  This statement, Tillman explains, has been “the rallying cry of those who oppose the unitary executive position” because it suggests that even Hamilton, the most prominent supporter of a strong executive, believed that the President lacked the power to remove officers without the Senate’s consent.  Tillman argues, however, that this view misapprehends Hamilton’s meaning because when Hamilton referred to “displac[ing]” an officer he meant “replacing” rather than “removing.” 

Responding to Tillman, Jeremy Bailey argues that Hamilton meant to oppose unilateral presidential removal powers in Federalist No. 77 and in fact maintained this view thereafter.  Although Bailey takes issue with Tillman’s interpretation of the term “displace,” the focus of his argument is that Hamilton’s statement reflected the belief that unilateral presidential removal of officers was undesirable because it would undermine stability in the government.  Hamilton, in Bailey’s view, wanted to “institutionalize a steady and expert administration of the laws.”  This position, Bailey notes, is not necessarily incompatible with Tillman’s interpretation of Federalist No. 77. 

FWIW, it seems to me that the context of the first paragraph of Federalist No. 77 indicates that Hamilton was addressing the situation in which a new President might be interested in replacing, rather than simply removing, an officer.  His argument is that if the President had the exclusive authority to appoint officers, a new President would be likely to make wholesale changes (ie, bring in new people whom he knows or likes better than the old people).  However, the shared appointment power makes this less likely because (1) the President cannot replace an existing officer without the consent of the Senate and (2) the President knows that the existing officer, assuming that he has performed reasonably well, is likely to have the support of the Senate.  This argument doesn’t necessarily say anything about the situation where the President simply wants to remove a troublesome officer and is less concerned about who the replacement might be.  As Tillman suggests, Hamilton may have assumed that the President would ordinarily be unwilling to remove an officer until a replacement had been confirmed.

           

I don’t know that this necessarily settles the question of what Hamilton meant by the word “displace.”  He could have meant “replace” rather than “remove,” as Tillman argues.  Or  perhaps he meant “displace” in a general sense, but meant “necessary” in a practical, rather than legal, sense.  In other words, because he thought that the President would normally want to replace, rather than remove, he meant that it would be practically necessary to get the Senate’s consent in order to do so.  Or possibly he simply was not thinking about the situation in which the President wanted to remove, rather than replace.  Or possibly he assumed that replacement was the only way, apart from impeachment, to remove an officer (as Justice Story seems to have thought).  Regardless, it seems to me that this paragraph doesn’t say much about Hamilton’s normative views regarding whether the Senate’s consent ought to be necessary in the pure removal situation. 

On the other hand, it does suggest that Hamilton thought it a good thing that Presidents would be restrained by the Senate in replacing officers who were performing well.  Therefore, Bailey has a point when he suggests that Hamilton was no “simple unitarian,” at least if a simple unitarian is someone who believes that energy in the executive necessarily outweighs all other values, including stability in government.  It may not be huge point, but it seems valid regardless of whether Hamilton believed, either before or after he wrote Federalist No. 77, that the President lacked unilateral removal authority.      

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