Extract
from Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s
Early Expositions of Presidential Power, 53 Pepp.
L. Rev. (forth. circa 2026) (posted: Oct. 24, 2025)) (manuscript at 18 n.46) (bold added), <https://ssrn.com/abstract=5648310>:
[I]ronically, the
removal-power issue is one on which Hamilton, writing as Publius in The
Federalist No. 77, can be read as suggesting, sloppily, that the
Senate’s role in confirming appointments operated to limit removals as well.
The Federalist No. 77, at 432 (I. Kramnick ed. 1987) (Alexander Hamilton) (“The
consent of that body would be necessary to displace as well as to appoint.”).
While it is possible (with some straining) to read this line, in the
context of the overall passage, as intended to explain that the power to
withhold consent to a new, replacement to office would operate as an indirect
constraint on the President’s prerogative to remove officers, Hamilton himself
reportedly acknowledged error or at least imprecision on this point at the time
of the congressional debates on the State Department bill over presidential
removal language.
Extract
from 3 Joseph Story, Commentaries on the Constitution of the United States 390, §§ 1532–1533 (Boston, Hilliard,
Gray, & Co. 1833):
§ 1532. [I]n
an early stage of the government, [the power of removal] underwent a most
elaborate discussion [in Congress]. The language of the constitution is, that
the president “shall nominate, and, by and with the advice and consent of the
senate, appoint,” &c. The power to nominate does not naturally, or
necessarily include the power to remove; and if the power to appoint does
include it, then the latter belongs conjointly to the executive and the senate.
In short, under such circumstances, the removal takes place in virtue of the
new appointment, by mere operation of law. It results, and is not separable,
from the [subsequent] appointment itself.
§ 1533. This
was the doctrine maintained with great earnestness by the Federalist [No.
77] . . . .
You
can find Story’s interpretation of Hamilton’s Federalist No. 77 quoted favorably
in the reports of four courts of record: McElrath v. United States, 12
Ct. Cl. 201, 214 (Ct. Claims 1876) (Loring, J.); U.S. ex rel. Bigler
v. Avery, Case No. 14,481, 24 F. Cas. 902, 905 (C.C. N.D. Calif. 1867)
(Deady, J.); Nicholson v. Thompson, 5 Rob. (LA) 383, 393 (La. 1843)
(quoted by the attorney seeking a rehearing); Field v. Illinois, 3 Ill.
79, 166 (Ill. 1839) (Lockwood, J., concurring), superseded by state
constitutional amendment. The latter 1839 decision was published roughly
contemporaneously with Story’s Commentaries. You can also find Story’s position quoted in congressional debate. See, e.g., Congressional Record / Senate 2492, 2493 (Mar. 18, 1886) (Spooner, Senator); see also, e.g., Congressional Globe / Senate (Supp.) 251, 259 (Apr. 22, 1868) (Logan, House Impeachment Manager). See generally Hathi Trust for other congressional sources, and other sources generally.
Likewise, you can find this
passage from Story quoted in post-bellum sources by respected commentators and authors. See,
e.g., Raoul Berger, The President’s Unilateral Termination of the
Taiwan Treaty, 75 Nw. U. L. Rev.
577, 596–97 (1980) (citing Story’s Commentaries); see also, e.g., George W. Paschal, The Constitution of the United States / Defined and Carefully Annotated 178, § 185 (D.C., W.H. & O.H. Morrison 1868) (“The removal takes place in virtue of the new appointment, by mere of operation of law.” (citing Federalist No. 77)).
You can even find two contemporaneous reviews of Story’s Commentaries.
See Story’s Constitutional Law, 38 North American Review 63 (Boston, 1834); Judge Story’s Commentaries, 14(28)
American Quarterly Review 327, 364
(Philadelphia, 1833) (expressly quoting Story’s as to “great earnestness”).
See
generally, e.g., Seila Law LLC v. CFPB,
591 U.S. 197, 261, 270 (2020) (Kagan, J., concurring in the judgment with
respect to severability and dissenting in part) (“In Federalist No. 77,
Hamilton presumed that under the new Constitution ‘[t]he consent of [the
Senate] would be necessary to displace as well as to appoint’ officers of the
United States. He thought that scheme would promote ‘steady administration’: ‘Where
a man in any station had given satisfactory evidence of his fitness for it, a
new president would be restrained’ from substituting ‘a person more
agreeable to him.’ ” (quoting Federalist No. 77) (bold added)); Reply Brief
for the (United States) Respondent at 10, Seila Law LLC v. CFPB, Sup. Ct. No.
19-7 (U.S. Feb. 14, 2020) (Francisco, Solicitor General), 2020 WL 774433 (“In The
Federalist No. 77, Hamilton said only that the Senate’s consent ‘would be
necessary to displace’ principal officers . . . not to ‘remove’ them. Replacing
an officer would of course require Senate confirmation of the replacement—which
is all Hamilton may have meant.” (citing Tillman on Federalist No. 77)); Susan Low Bloch, The Early Role of the Attorney General in our Constitutional Scheme, 1989 Duke L.J. 561, 573 n.40 (1989) (using “remove”-language
and “replace”-language in connection with discussion on Federalist No. 77);
Jonathan L. Entin, The Removal Power and the Federal Deficit, 75 Ky. L.J. 699, 714 (1986–1987) (using “replace”-language
in connection with discussion of Federalist No. 77); Aaron L. Nielson & Christopher J. Walker, Congress’s Anti-Removal Power, 76 Vand. L. Rev. 1, 30 n.164 (2023), <https://ssrn.com/abstract=3941605>; Aaron L. Nielson & Christopher J. Walker, The Early Years of Congress’s Anti-Removal Power, 63 Am. J. Legal Hist. 219, 224 n.19 (2023) (peer review), <https://ssrn.com/abstract=4361394>; Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010), <https://ssrn.com/abstract=1331664>; Michael
Stern, ‘Tillman and Bailey on Federalist
No. 77,’ Point of Order: A Discussion
of Congressional Legal Issues (Oct. 7, 2009, 19:34 PM), <https://www.pointoforder.com/2009/10/07/tillman-and-bailey-on-federalist-no-77/>.
But see generally J. David Alvis, Jeremy D. Bailey, and F. Flagg Taylor IV, The Contested Removal Power, 1789–2010, at 221 n.72, 225 n.41 (2013); Ray Raphael, Constitutional Myths: What We Get Wrong and How to Get It Right 277 n.36 (2013) (“Tillman tries to untangle the puzzle by making a purely legalistic distinction between the words ‘displace’ (Hamilton’s term) and ‘removal’ (the term used in the congressional debates).”); Jeremy D.
Bailey, The Traditional View of
Hamilton’s Federalist No. 77 and an
Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harv. J.L. & Pub. Pol’y 169 (2010), <http://ssrn.com/abstract=1473276>; Jonathan Gienapp, Removal and the Changing Debate over Executive Power at the Founding, 63
Am. J. Legal Hist. 229, 238
n.55 (2023) (“Let’s be plain: What Tillman [or Story?] ultimately asks us to believe is far less plausible than what he asks us not to believe, which is the long and short of it.”). Compare Joshua C. Macey & Brian
M. Richardson, Checks, Not Balances, 101 Tex.
L. Rev. 89, 143 n.287 (2022) (characterizing Hamilton’s “displace as well as ... appoint” language in Federalist No. 77 as an “equivocation”), with Joshua C. Macey & Brian M. Richardson, Structural Indeterminacy and the Separation of Powers, 113 Calif. L. Rev. 1251, 1294 n.225 (2025) (“Joseph Story’s Commentaries interpreted Federalist 77’s reference to ‘dismissal’ to refer plainly to removal.”).
What Professor Paulsen calls a “strain[ed]” reading was Joseph
Story’s reading of Federalist No. 77. I see no evidence of any antebellum
commentator or other source, or even any pre-21st century source, squarely
contesting Story on this point. Perhaps, Story’s reading was the standard
understanding of Hamilton’s Federalist No. 77, and it is Professor
Paulsen’s understanding of Federalist No. 77 that is “strain[ed]”?
I suppose the ghost of Hamilton should be thankful. In 2024, Professor
Paulsen characterized Chief Justice Chase’s Griffin’s Case[1] decision as “bonkers”; here by contrast,
Hamilton’s essay (Federalist No. 77) is only characterized, by Professor Paulsen, as “slopp[y].”
William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605, 654 (2024) (using “bonkers” language), <https://scholarship.law.upenn.edu/penn_law_review/vol172/iss3/1/>; Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s Early Expositions of Presidential Power, 53 Pepp. L. Rev. (forth. circa 2026) (manuscript at 18 n.46) (using “slopp[y]” language), <https://ssrn.com/abstract=5648310>.
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Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq. President of the United States [24 October 1800]: (“But the truth most probably is, that the measure was a mere precaution to bring under frequent review the propriety of continuing a Minister at a particular Court, and to facilitate the removal of a disagreeable one, without the harshness of formally displacing him.”);
Alexander Hamilton to the Electors of the State of New York [7 April 1789] (“It has been said, that Judge Yates is only made use of on account of his popularity, as an instrument to displace Governor Clinton; in order that at a future election some one of the great families may be introduced.”);
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Seth Barrett Tillman, ‘Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77,’ New Reform Club (Oct. 30, 2025, 5:22 AM), <https://reformclub.blogspot.com/2025/10/strained-readings-of-constitution-and.html>.
For another commentator on this and related issues, see: David M. Driesen, Does a Removal Power Exist?
Joseph Story and Selective Living Originalism, 39 Const. Comm. 1, 3 n.9, 26 & n.125 (2024)
(peer review),
<https://ssrn.com/abstract=4541820>; David M. Driesen, Toward A
Duty-Based Theory of Executive Power, 78 Fordham
L. Rev. 71, 102 n.176 (2009), <https://ir.lawnet.fordham.edu/flr/vol78/iss1/13/>.
