Extract from 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) (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(quoted by the attorney seeking a rehearing); Field v. Illinois, 3 Ill. 79, 166 (Ill. 1839) (Lockwood, J., concurring), superseded by state constitutional amendment.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 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>; 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>. 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 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
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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/>.
[1] Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5815) (Chase, C.J.).
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