The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There is much to admire in Justice Kagan's Seila Law dissent. She wrote a robust historical analysis about the removal power. And, to be frank, Chief Justice Roberts didn't bother responding to most of her claims. But there is at least one weak spot in Kagan's analysis: she misread Hamilton in Federalist No. 77. To Kagan, Hamilton thought the Constitution required Senatorial consent for a Presidential removal. Kagan's reading is all-too-common. Indeed, in Myers v. United States, both Chief Justice Taft and Justice Brandeis accepted this understanding of Federalist No. 77.
This reading, however, is not the best reading of Federalist No. 77. In that paper, Hamilton was discussing the appointment power, not the removal power. He stated what should be an uncontroversial point: when a new President wants to "displace"–that is replace or substitute–a holdover appointed by his predecessor, the Senate must provide "advice and consent" for the new position. Hamilton was not discussing whether the Senate must consent before the President removes an officer of the United States. He was talking about what happens after the removal: the Senate must provide advice-and-consent to fill the vacancy.
In Federalist No. 77, Hamilton begins by praising the "stability" of the new government when one administration concludes and a new administration begins:
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.
Let's consider an example. When President Washington's term concludes, and President Adams's term begins, President Adams would need the Senate's consent to "displace as well as to appoint." That is, Adams would need the Senate's consent to "appoint" people to fill vacant positions. That conclusion is not controversial. And Adams would need the Senate's consent to "displace" some holdovers from the Washington administration. What does it mean to "displace"?
That displacement process can take one of two forms. First, Adams could ask the holdover to resign, which he probably would. If so, the position is now vacant, and the President could seek advice-and-consent to fill it. Second, if the holdovers refuses to resign, Adams could remove the holdover. At that point, now the position is vacant, and the President could seek advice-and-consent to fill it. In short, the Senate's role in "displace[ment]" does not concern asking an Officer to resign, or removing an Officer. Rather, the Senate's role arises on the back-half of this process: replacing, or substituting a new person for that position.
In Federalist No. 77, Hamilton was not discussing the President's removal power; he was trying to sell the Constitution to the people of New York, who were worried about a new executive who will create chaos. Hamilton makes this point expressly in the next two sentences of Federalist No. 77:
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 favor of a person more agreeable to him, by the apprehension that a 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.
Hamilton was discussing a simple proposition: a new President could not unilaterally appoint new members to the executive branch; he would need the Senate's consent. Thus, the Senate wold ensure there was some be "stability" from administration to administration, rather than a "violent or so general a revolution." Senate advice-and-consent on the appointment power maintains stability. In other words, the President could not simply fire everyone as a means to appoint new people. If he chooses to fire people, without an eye to the Senate, he would be stuck with vacancies in critical positions, thereby undermining his own administration. Hamilton was prescient: the parallels to present circumstances should be apparent.
At one point in her opinion, Justice Kagan seems to understand the phrase "displace" to mean replace, or substitute. Indeed, she uses the phrase "substituting."
Delegates to the Constitutional Convention never discussed whether or to what extent the President would have power to remove executive officials. As a result, the Framers advocating ratification had no single view of the matter. 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. Id., at 515. 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." Ibid.
Again, Hamilton wrote, "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 favor of a person more agreeable to him…" Kagan changed "from attempting a change in favor of" to "from substituting." Here Kagan, perhaps inadvertently, nailed it. But she still drew the same conclusion Taft and Brandeis drew: that "displace" was synonymous with "remove." The better conclusion is that "displace" means "substitute," which is a multi-step process.
This reading also accounts for Hamilton's general reading of a robust, "vigorous" executive. In Myers, Chief Justice Taft wrote that Hamilton "changed his view of this matter" with respect to Washington's proclamation of neutrality. Hamilton didn't change his mind, or state a "heterodox" position in Federalist No. 77. He simply used the word "displace" in a different fashion.
Seth Barrett Tillman wrote about this issue a decade ago in a paper, fittingly titled, "The Puzzle of Hamilton's Federalist No. 77." Once again, Seth shined a light on constitutional puzzles that few others saw. I am always grateful for his careful and prescient scholarship.