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Bailey on Tillman on Hamilton on Removal of Executive Officers

By Lawrence Solum

Jeremy D. Bailey (Political Science, University of Houston) has posted The Traditional View of Hamilton?s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman on SSRN. Here is the abstract:

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.

And here is a link to Tillman's piece.

Full post as published by Legal Theory Blog on September 15, 2009 (boomark / email).