The Puzzle of Hamilton's Federalist No. 77

By Tillman, Seth Barrett | Harvard Journal of Law & Public Policy, Winter 2010 | Go to article overview

The Puzzle of Hamilton's Federalist No. 77


Tillman, Seth Barrett, Harvard Journal of Law & Public Policy


I. A STATEMENT OF THE PROBLEM

The Founders, the authors of the Constitution of 1787, much like you and me, were flesh-and-blood human beings. As a result, we expect to find errors and exaggeration in their written works. (1) There is nothing new about that insight. But one alleged error has always struck me as somewhat different from the others. I am speaking of Hamilton's 1788 publication, Federalist No. 77. There he 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. (2)

This is the enigmatic great white whale among Founding-era documents. Apart from investigating Hamilton's meaning as an intrinsically interesting historical matter, or as an avenue to glean more of the worldview of the Framers (or, at least, of Hamilton), Federalist No. 77 is also key to understanding our contemporary legal debates on separation of powers, executive branch removals, and the so-called unitary executive theory. (3) Generally speaking, the latter provides that the President has a freestanding, constitutionally granted unilateral power to remove executive branch officers, or, at least, those high-level executive officers he appointed. Traditionally, Federalist No. 77 is the rallying cry of those who oppose the unitary executive position. (4)

To put it another way, partisans of Senate (or congressional) power agree with Hamilton (or, at least, they think that they agree with Hamilton). These commentators look back to the Tenure of Office Acts and to statements made on the floor of the House circa 1789 when the executive branch departments were organized and when statutory removal was first debated--all of which, purportedly, are consistent with Hamiltons statement in Federalist No. 77. (6) Partisans of presidential power disagree with Hamilton (or, at least, they think they do). They argue that Hamilton erred. (7) These commentators look to Myers v. United States (8) and to statements made by Madison on the floor of the House during the statutory removal debates. Partisans of presidential power and partisans of congressional power, despite disputing the underlying constitutional issue of the necessity of Senate consent to presidential removal of executive branch officers, both agree with each other on one thing: They both believe that Hamilton was speaking to the issue of the removal of federal officers when he stated that "[t]he consent of that body would be necessary to displace as well as to appoint." This standard or consensus view, the view that Hamilton was speaking to removal, has been adopted by Supreme Court majorities and dissents, lower federal courts, and by academics in law and in other fields. (9)

However, this understanding of Federalist No. 77, the view that Hamilton was speaking to removal, creates as many problems as it might resolve.

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