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Justice Kagan on Hamilton in Federalist No. 77

Hamilton said that Senate must consent when a new President "displaces," that is substitutes an old officer with a new officer.

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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.

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24 responses to “Justice Kagan on Hamilton in Federalist No. 77

  1. I think the relevant issue is Andrew Johnson and the Tenure in Office Act. If the Senate already had the power, then why pass the act, and why repeal it?

    1. This doesnt make sense as evidence against senatorial consent for removal not being included in original understanding.

      The Tenure in Office Act clarified that the President needed the senate’s approval to remove the secretary of war. Under this frame, the statute was passed because the senate believed they had that power.

      Ultimately I agree with Blackman. The unconstitutionality of hampering presidential removal is made clear by the controversy surrounding the Tenure Act, among other things. But the mere fact that it was passed alone could be construed as evidence for the opposite conclusion

  2. This sounds just wrong to me.

    The consent of that body would be necessary to displace as well as to appoint.

    The two words “displace” and “appoint” seem to be set in opposition to each other. One means to remove an officeholder, the other to install one. “Displace” does not mean “replace.”

    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,

    This sounds to me as if Hamilton expects the Senate to refuse to approve the dismissal – the displacement – of an officeholder who was doing a good job. It’s not about the specific replacement. After all, there will be any number of candidates “agreeable” to the President. Here, even if one of those is a good choice, Hamilton prefers that the current officeholder be retained in the interests of stability.

    Glad to see that my reading is supported by Taft, Brandeis, and Kagan, probably among others, if not by Blackman and Tillman .

    1. ” Glad to see that my reading is supported by Taft, Brandeis, and Kagan, probably among others, if not by Blackman and Tillman .”

      You’re probably still listening to the Stones, Motown, and Jimi Hendrix instead of Justin Bieber, Florida Georgia Line, and Britney Spears, too.

      1. I do listen to them.

        Even worse, I also listen to Coltrane, Monk, Sarah Vaughan, etc.

    2. I agree. I interpret “displace” here the same way you do and for the same reason. The fact this word shows up in a discussion of the appointment process doesn’t change the meaning of the word “displace.”

    3. I agree that the “necessary to displace as well as to appoint” language, on its own, seems to suggest that reading. But having just reread the essay, I think Tillman is right. For the rest of the essay, Hamilton only talks about the senate’s power to approve nominees. He never claims that the senate could block a removal directly: rather, his point seems to be that because the president couldn’t be sure that the replacement would be approved, there would be a disincentive to try to remove an incumbent without a good reason.

      (I should add that whatever Hamilton was intended to say, he did not do a particularly good job expressing it here.)

      1. But then why talk about this as two different processes? Except when the office is first created, the nominee always replaces a previous holder who has died, resigned, or was fired.

        There must be something special about the latter case for it to bear mention.

        Of course you may be right that he was simply unclear, but then it’s not worth a lot of effort to try to figure out what he meant.

        1. But then why talk about this as two different processes? Except when the office is first created, the nominee always replaces a previous holder who has died, resigned, or was fired.

          There must be something special about the latter case for it to bear mention.</

          Again, I think it becomes clearer when you read the whole thing (it's not very long):

          https://avalon.law.yale.edu/18th_century/fed77.asp

          I'd also recommend reading Federalist 76 as well, which also discusses and tries to justify the nomination and appointment process.

          In the passage in question, Hamilton is unquestionably trying to justify the requirement for senatorial approval (however broad that is) by explaining that it will tend to have subordinate officers maintain their positions, even between presidential administrations.

          Now, if he meant that it would work because the senate could directly refuse to permit the president to fire the incumbent, that mechanism is pretty obvious, and I wouldn't expect much explanation. On the other hand, I would expect him to explain how it is that the constitution actually contains that requirement (we know from the records of the First Congress that this was not how the removal power was generally understood), and to discuss why it’s appropriate to give the senate that power in more detail.

          But we don’t have that: indeed, we don’t have anything else (in either essay) suggesting that the senate does in fact have this power. Instead, we have an explanation oh how the senate can use its power to refuse to appoint a new nominee, which in turn can make the president reluctant to remove the incumbent. In other words, I think it’s best understood as an explanation of how the direct role in appointment indirectly gives the senate power over removal as well, not a claim that the constitution gives the senate direct power to disapprove removals.

          To be sure, I think both readings are plausible. But I do think Tillman’s reading is the better one.

          Of course you may be right that he was simply unclear, but then it’s not worth a lot of effort to try to figure out what he meant.

          I’m not sure that it is worth a lot of effort. Whatever mechanism Hamilton had in mind, his core point—that new presidents would typically leave most subordinate officers in place upon a change in administration—was pretty clearly wrong.

          1. Well, I read it. Thanks for the link. I need to reread, but meanwhile I did enjoy this part: (Hamilton seems to be discussing, as an alternative to Senate confirmation, having a small council approve nominations, as was apparently done at the time in New York.)

            Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived.

          2. I see your point that the essay is, except for the first part, devoted to discussing how office-holders are appointed, and not how they are removed.

            But I don’t see why that implies that it is a given that the President has the right to fire them (in Hamilton’s opinion, anyway). Wouldn’t that at least have merited a sentence or two? Instead the only mention is the one that says,

            The consent of [the Senate] would be necessary to displace as well as to appoint.

            Further on we have this:

            The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States.

            Nothing about dismissing officeholders without consent of the Senate.

  3. Samuel Johnson’s 1755 Dictionary contains the following entry for “displace” (p. 615):

    1. To put out of place; to place in another situation.
    2. To put out of any state, condition, office, trust, or dignity.
    [Example under definition 2]: “To displace any who are in [multiple spaces here, presumably to be filled in by definition 2] upon displeasure, is by all means to be avoided, unless there be a manifest cause for it.” – Bacon

    The contemporary OED also contains, as a definition of the term, “Remove (someone) from a job or position of authority.

    Now, that’s just two sources, which is far from providing any conclusive answer. Were I inclined to go further I would consult more historical dictionaries, legal treatises, the broader debates over the constitution for other uses of the term in the context of appointments, Hamilton’s broader writing, and probably a contemporary English corpora database.

    But, the rather direct reference in Johnson’s 1755 dictionary, and the citation to Bacon, give me serious reason to doubt the claim in this post. At the very least, it Bacon’s example indicates a more nuance understanding with moral undertones. However, I’m no Originalist, and I dont have a stake in the outcome of the word’s meaning, so I’m probably doing it wrong.

  4. Hamilton was writing an op-ed, a document aimed at getting the Constitution adopted. Its not an objective discussion of what the document means nor evidence of anything but his own opinion.

      1. Even so, Hamilton was clearly claiming that the President would need Senate approval to remove. Maybe he was just making a specious point to answer some specific argument of the anti-federalists. Or maybe, just maybe, the various framers actually disagreed on this point, as well as many others. As did the ratifiers. And there really is no one original public meaning that can bind current judges.

    1. Sure.

      But it does help to clarify what exactly the framers were thinking when they wrote the constitution. We do, of course, take into account Hamiltons own bias (at the convention he proposed a monarchy, so presidential power to Hamilton probably isn’t as expansive as Hamilton writes).

      And his documents were used to sell the constitution, so the original public meaning consists of a lot of what Hamilton wrote. So I’d say that is pretty important, at least from an originalist point if view.

      It’s not definitive, but helpful.

      1. “clarify what exactly the framers were thinking ”

        No, its only helps clarify what exactly AH was thinking.

    2. Exactly same with the Declaration of Independence. The founding fathers spouted a lot of bull shit they clearly didn’t mean during the war and then later during the ratification process.

      1. That said strangely not a one mentioned or even hinted at judicial review.

        1. Wow. Spectacularly wrong. During the convention, for instance, Morris and others actually made the argument that the presidential veto was unnecessary because judicial review would be available. What’s more, there were a number of cases of judicial review in state courts, well before 1787. The concept of judicial review existed long before Marbury.

          1. This is what they call shitting your pants as an argument I.e. it would have been a better strategy to shit your pants and cause a distraction than to spray that turd of an argument around. Morris was a guy that basically all the founding fathers say was allowed to talk and talk and talk but was roundly ignored. There’s a reason that he got assigned the preamble to the constitution and nothing else. His vision of an aristocratic country dominated by mid-Atlantic states would have doomed the constitution to failure. The fact someone said something at the congressional congress is frankly completely insignificant. Morris said a ton of stuff there most of which was ignored. If the only person you can quote is Morris and you aren’t actually quoting him then you’ve lost.

            1. Every single thing you said in that comment is either factually wrong, irrelevant, and/or in poor taste. Including comments about my comment. At the very least, I would strongly suggest you do some real research on Gouverneur Morris. Maybe start with the number of his suggestions that were adopted by the convention, compared with Madison or Wilson or any other framer you’d care to choose.

  5. 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.

    What makes that Tillman analysis seem prescient to SB is that SB agrees with it. Too bad Tillman hasn’t got a better ear for 18th century usage. Two observations:

    1. The term, “place,” was then notably more likely than today to mean a position of employment, or a status, or both together, as in usages such as, “a place of honor or reward.” We do not use that construction so much today. What was then a “place,” is more likely today to be a, “job,” or an, “office,” or a, “position.”

    2. Among the founders (make it a point to notice), at least Hamilton and Madison were prose stylists who leaned heavily on positing terms, and opposing them with opposites. They did it again and again, any time they wanted to convey to a reader a sense that a range of choices, or a contrast among them, was contemplated. Read Madison in Federalist 10 to discover multiple examples of how he used that technique.

    With that in mind, it is hard for anyone familiar with Hamilton’s voice not suppose that, “displace,” in this context, means nothing other than removal from office. To say that is far from saying that Hamilton’s usage delivers definitive historical meaning to resolve the constitutional dilemma.

    One founder’s view should not usually stand as representative of all of them. But it is mistaken, too, to insist Hamilton meant the opposite of what an ear for 18th century usage, and Hamilton’s usage in particular, would more probably indicate.

  6. It is very clear from what Hamilton wrote that he believed the constitution required that Senate consent was required for removal. Maybe he was wrong. The point was still being debated 150 years after ratification. These types of pretzel-like contortions to fit 18th century writing into current political beliefs in the name of “originalism” may be what passes for conservative constitutional scholarship, but it certainly isn’t historical scholarship.