In Federalist No. 77, Alexander Hamilton wrote: “The consent of [the Senate] would be necessary to displace as well as to appoint.” What did Hamilton mean?
Compare Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (“In order to prevent arbitrary executive action, the Constitution provided in terms that presidential appointments be made with the consent of the Senate, unless Congress should otherwise provide; and this clause was construed by Alexander Hamilton in The Federalist, No. 77, as requiring like consent to removals.” (emphases added)), Ray Raphael, Constitutional Myths: What We Get Wrong and How To Get It Right 118–119, 277 nn.34 & 36, 278 n.38 (2013) (affirming that Hamilton’s “displace”-language addressed removals, and characterizing the contrary view as “purely legalistic” and “subtle”), <https://tinyurl.com/2p8jhwkc>, and Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge, 33 Harv. J.L. & Pub. Pol’y 169 (2010) (arguing that Federalist No. 77’s “displace”-language was akin to “remove”), <https://ssrn.com/abstract=1473276>, with Reply Brief for the Respondent [Consumer Financial Protection Bureau (“CFPB”)] at 10, Seila Law LLC v. CFPB, No. 19-7, 140 S. Ct. 2183 (2020) (brief filed on Feb. 14, 2020 by Francisco, S.G.), 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.”), <https://tinyurl.com/y4fbdh2x>, 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533, at 390 (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] . . . ." (emphases added)), <https://tinyurl.com/a5hsn8zr>, Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (arguing that Federalist No. 77’s “displace”-language was akin to “replace,” and was not addressing “removal” per se), <https://ssrn.com/abstract=1331664>, Ilan Wurman, The Removal Power: A Critical Guide, 2020 Cato Sup. Ct. Rev. 157, 197 (“Hamilton’s entire paragraph [in Federalist No. 77] is about ‘the business of appointments.’ Thus, he speaks of ‘displacing’ an officer after a new president is elected. This seems most logically to be a reference to the advice and consent of the Senate to a new appointment.”), <https://tinyurl.com/2p9xzn8s>, and Letter from Professor Forrest McDonald to Seth Barrett Tillman (Feb. 14, 2009), <https://tinyurl.com/2ueurpx4> (“Your argument [that is, the view regarding the meaning of Hamilton’s “displace”-language] is, in my opinion, irrefutable.”). See generally, e.g., Removal Power of the President, [16 June] 1789, Founders Online (last accessed Dec. 12, 2021), <https://tinyurl.com/rtvtdccx>:
[James Madison, in the House of Representatives’ Committee
of the Whole:] Where the people are disposed to give so great an elevation to
one of their fellow citizens, I own that I am not afraid to place my confidence
in him; especially when I know he is impeachable for any crime or misdemeanor,
before the senate, at all times; and that at all events he is impeachable
before the community at large every four years, and liable to be displaced
if his conduct shall have given umbrage during the time he has been in office.
Id. (emphasis added).
Seth Barrett Tillman, What Did Alexander Hamilton Mean?, New Reform Club (Dec. 24, 2021, 5:30 AM), <https://reformclub.blogspot.com/2021/12/what-did-hamilton-mean.html>;
See also Seth Barrett Tillman, Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Response to Professor Cass Sunstein (and others), 20(2) Geo. J.L. & Pub. Pol’y (forth. circa May 2022), <http://ssrn.com/abstract=3910416>.
4 comments:
The Federalist Papers are not the Constitution and obviously don't have the force of law. Notwithstanding Hamilton's view on this matter, it's not supported by the text and it seems that virtually nobody over the last 200+ years has shared his understanding of this provision.
Davide said...
...why did Congress need to pass the Tenure In Office Act to force President Andrew Johnson to commit an allegedly-impeachable offense?
Politics. Johnson (Southerner, former War Democrat, Lincoln's hand picked VP) had tried to remove Secretary of War Edwin M Stanton (Radical Republican, inherited from the Lincoln administration) from his cabinet. The Radical Republican majority passed the Tenure of Office Act to prevent Johnson from doing this as they didn't trust him due to his "Southerness" and thought he would not punish (ransack) the South to the extent they wanted to. Also, then as today's modern Democrat party, they Radicals dreamed of a permanent majority in Congress and wanted to use Reconstruction to bring that about.
The most obvious explanation is that Hamilton meant the same thing by displacement and removal (by impeachment). But there is another—more interesting—possibility. The framers were concerned by England’s colonial era displacement of the Virginia high court, not by removing the judges, but by appointing an entirely new court and assigning cases to it. It may have been this fear that caused the framers to to assign the highest judicial power to “one Supreme Court.” Congress can’t displace that Supreme Court by creating another and assigning jurisdiction to that second Supreme Court.
Article III, Section I states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
So the Congress, including the Senate, could displace lower court judges by reorganizing the lower courts, thus eliminating the positions of some judges.
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