The Traditional View of Hamilton's Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman
Bailey, Jeremy D., Harvard Journal of Law & Public Policy
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. (1)
The unitary executive theory is one of the most controversial legal theories of recent memory. The theory posits that the Vesting Clause of Article II grants all of the executive power to the President, except where express grants of executive authority are made to other institutions or denied to the government as a whole. Broadly, the theory has two strands--a foreign policy strand and a domestic policy strand--both of which enhance the President's inherent powers, even absent statutory grants of authority. Even though the Constitution is silent regarding removing executive officers and abrogating treaties, both the domestic and foreign policy strands contend that the Vesting Clause grants the President these powers. (2)
To be sure, scholars associated with one strand of the theory do not always agree with scholars supporting the other strand, but it is important to notice that each rests on two related normative and originalist propositions. First, the unitary executive is good for democracy because it avoids many of the difficulties citizens have in holding unelected officials--especially high-ranking executive officers accountable to their wishes. (3) Second, unitary theorists insist that the Framers created a unitary executive because they recognized this principle. Because Alexander Hamilton made the argument from democratic theory in The Federalist, thereby connecting these two propositions, no Framer is more important for unitary theory.
There is a significant problem, however, with the domestic strand of the unitary argument, at least with regard to the President's power to remove federal executive officers. In Federalist No. 77, Alexander Hamilton wrote, "[t]he consent of that body [the Senate] would be necessary to displace as well as to appoint." (4) Hamilton's comment raises the following question: If Hamilton is the founder of the unitary executive theory, why did he write that the President would have to share the removal power with the Senate?
The traditional view is that the author of that passage was insufficiently Hamiltonian. That is, Publius-Hamilton either made a sloppy mistake or tried to understate executive power to sell the Constitution. Further, for unitary theorists, the crucial historical point is not what Hamilton said in 1788 (that is, prior to the Constitution's ratification), but what the first Congress did after ratification. Indeed, the argument for unilateral presidential removals carried the day in the so-called Decision of 1789, (5) and Hamilton, according to the standard history of those events, supported that development. (6) Still, with regard to Hamilton in 1788, either interpretive explanation poses problems for the unitarian project, (7) and particularly for originalists taking the unitarian position. As a methodological matter, it seems somewhat strange for originalists to prefer post-ratification materials with concrete implications for winners and losers over pre-ratification materials. (8)
There have been two recent challenges to the traditional view. In 2008, I argued in the American Political Science Review that Hamilton meant what he wrote in Federalist No. 77. (9) Broadly, and throughout his career, Hamilton hoped to institutionalize a steady and expert administration of the laws. (10) Accordingly, he wanted to shield executive officers against unilateral presidential removals; Senate consent would be necessary to remove as well as to appoint. In other words, Hamilton was not an ally of unilateral presidential removal powers prior to ratification. (11) The traditional view is half right: It correctly understands Hamilton's 1788 position, but it misunderstands Hamilton's post-ratification position. …