Bench Memos

The Perennial Publius, part 77

Alexander Hamilton has a few more remarks to make in Federalist No. 77 on the constitutional arrangement of the appointment power, in the course of which he makes his second and last clear mistake in interpreting the Constitution himself (the first being in No. 66).  In the opening paragraph of this last essay on the presidency, praising the role of the Senate “in the business of appointments,” Hamilton makes an unwarranted leap when he says “[t]he consent of that body would be necessary to displace as well as to appoint” executive branch officers.  That is, he seems to be saying that a president would have to refer to the Senate, for its approval, any decision to fire a high executive officer whose appointment had previously required the Senate’s consent.  (A more charitable reading would be that Hamilton is only claiming that replacing a sitting officer with another would require Senate approval of the successor’s nomination.  But it’s quite a stretch to read “displace” as always synonymous with “replace.”)

The fact is that the Constitution is utterly silent on the question of the removal of subordinate executive officers.  The notion that Senate consent is necessary for removal because it is necessary for appointment is one possible understanding of this silence, but it is far from the best one or the most natural.  Hamilton makes the mistake of imagining this symmetry between hiring and firing because of his high regard for “the value of a steady administration,” evidently thinking that it would be a good thing to retain the expertise of experienced administrators in the transition from one president to the next.  For the only time in his eleven essays on the presidency, Hamilton is not thinking clearly about what is most conducive to executive energy and effectiveness, and–most uncharacteristically–he neglects to consider the importance of political loyalty and even partisanship in the conduct of executive business.  Surely a president must be entitled either to retain or to dismiss any officeholder who has high policy responsibilities intimately under the president’s own direction.

In the first Congress (just a year after this essay) there was a debate over the power of executive removal during deliberations on creation of the first great cabinet office, the secretary of state (initially called secretary for foreign affairs).  In the House of Representatives, James Madison successfully led those who held that such an officer must be answerable to, and removable by, the president alone, and that this was the most natural reading of the Constitution itself.  The final bill creating this first subordinate office even avoided any implication that the president’s removal power rested on the statute itself–for what Congress had given, it could take away. 

Whether this view of the first Congress should be considered binding on subsequent Congresses as they legislate for executive offices remains controversial to this day, with the Supreme Court weighing in with a string of interesting rulings over the last eight decades on whether Congress can restrain or condition the president’s removal of high executive officers.  But as far as I know, Alexander Hamilton accepted James Madison’s correction of his misreading of the Constitution without a murmur–and quite possibly with a private sigh of gratitude, as a bolstering of the energy of the executive.

(For explanation of this recurring feature, see here.)

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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