16 Pages Posted: 14 Sep 2009 Last revised: 13 Dec 2009
Date Written: September 14, 2009
In Federalist No. 77, Alexander Hamilton writes that the Senate's consent would be necessary to "displace" a federal executive officer. Because Hamilton is well known as a defender of executive power, this comment has long been a puzzle. Seth Barrett Tillman proposes to solve this puzzle by reading "displace" as "replace" rather than "remove." If Tillman is correct, then he would not only solve a major interpretative dilemma, but also would liberate those who argue on originalist grounds for unilateral presidential removal powers.
This paper responds to Tillman's argument by considering three ways to consider Hamilton's No. 77: Contemporary evidence, post-1788 evidence, and the structure and place of Hamilton's case for executive energy in The Federalist. It argues that the third way is the most instructive and that this method confirms the traditional reading of Federalist No. 77, that is, that Hamilton believed the president did not hold unilateral removal powers.
Keywords: executive power, removal power, Hamilton
Suggested Citation: Suggested Citation
Bailey, Jeremy D., The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman (September 14, 2009). Harvard Journal of Law and Public Policy, Vol. 33, No. 1, pp. 169-84, 2010. Available at SSRN: https://ssrn.com/abstract=1473276