A Comment on Noah A. Rosenblum & Andrea Scosera Katz’s “Removal Rehashed”

 

Professors Rosenblum and Katz wrote:

 

Our own attempts to reconstruct Fish’s data reveal many cases of officers who were not removed, but simply superseded when the President nominated their replacement. Thus, for example, Fish noted that there were four removals of “Consuls, etc.” under President Adams. One was presumably Edward Church, Consul General in Portugal, who was displaced on July 6, 1797. But Adams does not seem to have removed Church, at least not in the way Bamzai and Prakash use the term in their Article. Rather, he nominated Thomas Bulkely to succeed Church, and Church in turn was “superseded.” There are many other such examples, involving Consuls as well as other officers who, like Consuls, required Senate confirmation.

Fish included such removals in his aggregate counts. But these “removals” do not show an indefeasible executive power of removal. They show, at most, that the President could displace a duly appointed officer by appointing his successor.

136 Harv. L. Rev. F 404, 421–22 (2023) (footnotes omitted) (emphases added), <https://harvardlawreview.org/forum/vol-136/removal-rehashed/>.

Perhaps, the two modern authors use of “displace” is coextensive with how Hamilton used “displace” in Federalist No. 77? In Federalist No. 77, Hamilton stated: 

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. (emphasis added)

This understanding of Hamilton’s “displace” language, used in Federalist No. 77, was put forward by Justice Story in his Commentaries on the Constitution and also later supported by Professor Forrest McDonald. See, e.g., Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (quoting Story and linking to McDonald), <https://ssrn.com/abstract=1331664>.

My regular co-author, Josh Blackman, makes some similar points here: Josh Blackman, ‘Justice Kagan on Hamilton in Federalist No. 77,’ Reason-Volokh Conspiracy (July 1, 2020, 2:09 PM), <https://reason.com/2020/07/01/justice-kagan-on-hamilton-in-federalist-no-77/>.

Seth Barrett Tillman,   ‘A Comment on Noah A Rosenblum & Andrea Scosera Katz’s “Removal Rehashed”,’ New Reform Club (May 21, 2023, 11:19 AM), <https://reformclub.blogspot.com/2023/05/a-comment-on-noah-rosenblum-andrea.html>;