The puzzle of Hamilton's Federalist No. 77.

• Author: Tillman, Seth Barrett
• Position: Removal power

1. A STATEMENT OF THE PROBLEM

   The Founders, the authors of the Constitution of 1787, much like you and me, were flesh-and-blood human beings. As a result, we expect to find errors and exaggeration in their written works. (1) There is nothing new about that insight. But one alleged error has always struck me as somewhat different from the others. I am speaking of Hamilton's 1788 publication, Federalist No. 77. There he wrote:

   It has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the chief magistrate therefore would not occasion so violent or so general a revolution in the officers of the government, as might be expected if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change, in favour of a person more agreeable to him, by the apprehension that the discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision, which connects the official existence of public men with the approbation or disapprobation of that body, which from the greater permanency of its own composition, will in all probability be less subject to inconstancy, than any other member of the government. (2) This is the enigmatic great white whale among Founding-era documents. Apart from investigating Hamilton's meaning as an intrinsically interesting historical matter, or as an avenue to glean more of the worldview of the Framers (or, at least, of Hamilton), Federalist No. 77 is also key to understanding our contemporary legal debates on separation of powers, executive branch removals, and the so-called unitary executive theory. (3) Generally speaking, the latter provides that the President has a freestanding, constitutionally granted unilateral power to remove executive branch officers, or, at least, those high-level executive officers he appointed. Traditionally, Federalist No. 77 is the rallying cry of those who oppose the unitary executive position. (4)

   To put it another way, partisans of Senate (or congressional) power agree with Hamilton (or, at least, they think that they agree with Hamilton). These commentators look back to the Tenure of Office Acts and to statements made on the floor of the House circa 1789 when the executive branch departments were organized and when statutory removal was first debated--all of which, purportedly, are consistent with Hamiltons statement in Federalist No. 77. (6) Partisans of presidential power disagree with Hamilton (or, at least, they think they do). They argue that Hamilton erred. (7) These commentators look to Myers v. United States (8) and to statements made by Madison on the floor of the House during the statutory removal debates. Partisans of presidential power and partisans of congressional power, despite disputing the underlying constitutional issue of the necessity of Senate consent to presidential removal of executive branch officers, both agree with each other on one thing: They both believe that Hamilton was speaking to the issue of the removal of federal officers when he stated that "[t]he consent of that body would be necessary to displace as well as to appoint." This standard or consensus view, the view that Hamilton was speaking to removal, has been adopted by Supreme Court majorities and dissents, lower federal courts, and by academics in law and in other fields. (9)

   However, this understanding of Federalist No. 77, the view that Hamilton was speaking to removal, creates as many problems as it might resolve. And this is true without regard to whether or not you think Hamilton correct or in error. First, the standard view is puzzlingly inconsistent with everything we know (or, at least, everything that is commonly taught) about Hamilton, the premier Founding-era spokesman for energy and unity in the executive. (10) How is it that he would concede a role for the Senate in the removal of federal officers if a contrary view were even remotely tenable? Second, Hamilton's opining on the scope of the removal power is inconsistent with his plan for and the purpose of The Federalist. At the outset, his plan for The Federalist was to discuss the utility of union; the defects of the then-current regime (the government under the Articles of Confederation); the need for a more energetic government; and, finally, to respond to objections by providing an article-by-article, clause-by-clause defense of the newly proposed Constitution of 1787 as consistent with the principles of republican government, liberty, and property. (11) The problem is that removal, as in pure removal unconnected to any other political or legal act, is simply not expressly addressed in the Constitution. To bring up removal is just bad tactics. Why open up that can of worms, particularly where one's conclusion lacks direct textual support and any closely reasoned argument? (12) Was Hamilton really such a poorly skilled tactician and propagandist?

   There is a third problem with the standard view. This problem is not historical but textual. If you read Hamilton's statement, you will notice that he does not actually use the word removal, or any variant on the word removal. Rather, he uses the word displace. And that is the key to this ancient intellectual puzzle. Hamilton was not speaking to the power of removing federal officers; rather, he was speaking to who had authority to displace federal officers. The two words are akin, but they are not, at all times and for all purposes, the same.

2. A PROPOSED SOLUTION

   Not only are the two words akin, they frequently have identical meaning. For example, on the heels of Henry VIII, one might say, The King's wife was removed from her perch, or equally, The King's wife was displaced from her perch. Here displace means "to remove from a position, dignity, or office." (13) But there is another way to use displace. One might say The King's wife was displaced by the courtesan. In this instance displace does not mean removed; here displace means "to take the place of, supplant, [or] 'replace.'" (14) One can find examples of using displace for replace in any number of documents, both literary (15) and legal, (16) roughly contemporaneous with the Constitution's drafting and ratification. Indeed, one finds displaced used by Madison (as Publius) in Federalist No. 47, but whether he meant it as removed or replaced is unclear. (17)

   Using displace to mean replace seems to have occurred with some frequency in colonial charters and grants, albeit such instruments were from an earlier time. (18) In some instances, holders of charter-granted powers were given both a removal power and a displacement power, which might indicate that they were understood to embody distinct, albeit related, powers. For example, The Charter of Massachusetts Bay of 1691 provides: "[T]he said Councillors or Assistants or any of them shall or may at any time hereafter be removed or displaced from their respective Places or Trust of Councillors or Assistants by any Great or Generall [sic] Court or Assembly[.]" (19) To be sure, it is possible that the Charter's use of removed is coextensive with displaced. Florid and repetitious usage was widespread in contemporaneous documents, particularly documents involving the grant of royal powers. But it is also possible that the two terms were meant to be distinguishable. Removed may indicate a pure removal, that is, the removal of an official for policy or ideological reasons, or to save funds. Displaced may indicate that the empowered body or official had the power to replace a public official, not just to remove the current occupant. In other words, when an officer is displaced, he is removed by and in conjunction with the act of replacing him.

3. A HISTORICAL CONJECTURE

   Why might Hamilton have used displace in this manner? Modern commentators tend to forget how small the appointed-officer civil list was in the early republic. For example, when a new state came into the Union during the antebellum period, it received few salaried officers. Initially, a new state may have received little more than provision for an Article III district court judge (with salary provided for a clerk of the court), a tax official a United States Marshal, and a United States Attorney. (20) Moreover, such officers did not always have salary provided for a deputy, a second, an alternate, or an assistant. A President, even if he had a strong ideological disagreement with an officer within his removal power, may have been quite reluctant to remove a distant federal officer (21) absent an on-hand Senate-approved replacement. Why? Who would serve process and subpoenas, who would execute warrants, and who would seize alleged contraband, evidence of crime, and criminals if the only United States Marshal in the jurisdiction were removed absent a deputy who could function as an acting United States Marshal? (22) Who would represent the United States in ongoing civil litigation and who would prosecute alleged criminals if the only United States Attorney in a jurisdiction were removed absent an assistant who could function as an acting United States Attorney? (23) And who would assess and collect federal duties during the interregnum between a pure removal and a subsequent appointment? (24) Hamilton's Federalist No. 77 may not have been a statement about the constitutional or legal limit of the President or the Senate's removal powers, but rather an empirical or practical claim (25) or prediction to the effect that in most cases removal would be effectuated by a subsequent appointment, (26) which, not...