At Volokh Conspiracy, Seth Barrett Tillman (guest-blogging): Chancellor James Kent on Hamilton’s Federalist No. 77 and Modern Academic Commentary. From the introduction:
As readers of this blog will know, there is a long-standing debate about the scope of the President’s and Senate’s appointment and removal powers. That debate has been shaped by the language of the Appointments Clause (referring to the Senate’s “advice and consent” power), ratification era debates, including Hamilton’s Federalist No. 77, debates in the First Congress, and, of course, subsequent executive branch practice, legislation, judicial decisions, and commentary.
In 2010, I attempted to make a modest contribution to this debate. Without opining either on the constitutional issue per se or on the meaning of the Appointments Clause, I argued that Hamilton’s Federalist No 77 was not speaking to removal at all—at least, not removal as we think about it today.
In Federalist No. 77, Hamilton stated: “The consent of th[e] [Senate] would be necessary to displace as well as to appoint.” 20th century and 21st century commentators have uniformly understood Hamilton’s “displace” language as speaking to “removal.” (Albeit, there have been a few exceptions over the last one hundred years.) My modest contribution was to point out that “displace” has two potential meanings. “Displace” can mean “remove,” but it can also mean “replace.” This latter meaning is, in my view, more consistent with the overall language of the entire paragraph in which Hamilton’s “displace as well as to appoint” statement appears.
…
However, in a 2025 article in California Law Review (at note 225), Professors Joshua C. Macey and Brian M. Richardson discuss both Federalist No. 77 and Joseph Story’s interpretation of Federalist No. 77. Macey and Richardson wrote: “Joseph Story’s Commentaries interpreted Federalist 77’s reference to ‘dismissal’ to refer plainly to removal.” There are three errors here. First, why is “dismissal” in quotation marks? It does not appear either in Federalist No. 77 or in Story’s Commentaries, at least not in the sections under our consideration. Second, Story adopted the “displace” means “replace” view. And third, the issue is not “plain.” We all make mistakes. In my view, this was a mistake on Macey and Richardson’s part.
Macey and Richardson then write: “Notably, Chancellor [James] Kent, in a letter, attributed Story’s interpretation to the original text of Federalist 77, an error which was repeated both in nineteenth-century histories of removal and by Chief Justice Taft’s law clerk in connection with Taft’s decision in Myers [v. United States].” Id. at note 225. Macey and Richardson cite two publications by Professor Robert Post in support of this view, but they do not cite any original, transcript, or reproduction of Kent’s letter. This sentence of theirs is a Gordion knot. I have made some effort to cut this knot. …
Josh Blackman comments:
This topic is once again very timely in light of the ongoing litigation over the President’s removal power. And, once again, Tillman offers a correction to scholars who misread Hamilton. Make sure you read till the end.
Posted at 1:03 AM