I am happy to pass along this guest post from Professor Seth Barrett Tillman, which concerns how best to understand Alexander Hamilton's analysis in Federalist No. 77. This topic is once again very timely in light of the ongoing litigation over the President's removal power. And, once again, Tillman offers a correction to scholars who misread Hamilton. Make sure you read till the end.
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As readers of this blog will know, there is a long-standing debate about the scope of the President's and Senate's appointment and removal powers. That debate has been shaped by the language of the Appointments Clause (referring to the Senate's "advice and consent" power), ratification era debates, including Hamilton's Federalist No. 77, debates in the First Congress, and, of course, subsequent executive branch practice, legislation, judicial decisions, and commentary.
In 2010, I attempted to make a modest contribution to this debate. Without opining either on the constitutional issue per se or on the meaning of the Appointments Clause, I argued that Hamilton's Federalist No 77 was not speaking to removal at all—at least, not removal as we think about it today.
In Federalist No. 77, Hamilton stated: "The consent of th[e] [Senate] would be necessary to displace as well as to appoint." 20th century and 21st century commentators have uniformly understood Hamilton's "displace" language as speaking to "removal." (Albeit, there have been a few exceptions over the last one hundred years.) My modest contribution was to point out that "displace" has two potential meanings. "Displace" can mean "remove," but it can also mean "replace." This latter meaning is, in my view, more consistent with the overall language of the entire paragraph in which Hamilton's "displace as well as to appoint" statement appears.
Hamilton 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. [bold and italics added]
Likewise, Hamilton, on other occasions, used "displace" in the "replace" sense. See, e.g., 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.").
Similarly, Justice Story expressly adopted the "replace" view of Federalist No. 77. Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833) ("§ 1532. … [R]emoval 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] . . . ." (emphasis added)).
More recently, it appears, although one cannot be entirely sure, that Justice Kagan has adopted the "replace" interpretation of Federalist No. 77. Kagan wrote:
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]
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). "Substituting" is, in my opinion, akin to "replace."
However, in a 2025 article in California Law Review (at note 225), Professors Joshua C. Macey and Brian M. Richardson discuss both Federalist No. 77 and Joseph Story's interpretation of Federalist No. 77. Macey and Richardson wrote: "Joseph Story's Commentaries interpreted Federalist 77's reference to 'dismissal' to refer plainly to removal." There are three errors here. First, why is "dismissal" in quotation marks? It does not appear either in Federalist No. 77 or in Story's Commentaries, at least not in the sections under our consideration. Second, Story adopted the "displace" means "replace" view. And third, the issue is not "plain." We all make mistakes. In my view, this was a mistake on Macey and Richardson's part.
Macey and Richardson then write: "Notably, Chancellor [James] Kent, in a letter, attributed Story's interpretation to the original text of Federalist 77, an error which was repeated both in nineteenth-century histories of removal and by Chief Justice Taft's law clerk in connection with Taft's decision in Myers [v. United States]." Id. at note 225. Macey and Richardson cite two publications by Professor Robert Post in support of this view, but they do not cite any original, transcript, or reproduction of Kent's letter. This sentence of theirs is a Gordion knot. I have made some effort to cut this knot. Let me start by saying that, as best as I can tell, Kent's letter is from 1830, and Story wrote in 1833. So I suggest there was no way for Kent to attribute or misattribute anything by Story. Macey and Richardson are not entirely at fault. The error is in some substantial part Professor Robert Post's, and the concomitant error, by Macey and Richardson, is their (all too understandable) willingness to rely on Post and their failure to look up Kent's actual letter. Still, for reasons I explain below, Macey and Richardson have done modern scholars a valuable service—for which I thank them. (And, no, this is not sarcasm.)
To summarize: Macey and Richardson rely on Robert Post. Post is quoting Chief Justice Taft's researcher: William Hayden Smith. And William Hayden Smith is quoting Chancellor Kent. We are four levels deep—so, it is hardly surprising that one or more mistakes and misstatements creep into the literature.
