Gary J. Schmitt is a senior fellow in Social, Cultural and Constitutional Studies at the American Enterprise Institute.
During the First Congress’s debate in which James Madison and others defended the ideas that the president had the constitutional power to remove department heads “at pleasure,” one of Madison’s opponents noted that, in Federalist #77, Alexander Hamilton had written that the Senate’s consent would be necessary not only for an official’s appointment but also “to displace” them. Madison and Hamilton, the two most influential expositors of the newly adopted constitution were seemingly at odds over how the government would remove senior administration figures.
Hamilton, alerted to the fact that his statement in Federalist #77 had been used to challenge Madison’s argument sent a note (see William Smith letter to Edward Rutledge, June 21, 1789) to a Madison ally in the House to let its members know that “upon more mature reflection,” he now agreed with Madison. The power to remove was the president’s alone as a constitutionally implied power of the office.
What are we to make of this seeming about-face by Hamilton?
Opponents to presidential removal suspected that Hamilton had changed his position because he wanted President Washington to nominate him as the nation’s first Treasury Secretary. Hamilton was surely aware of Washington’s intent to be chief executive not only in name but also in actual practice. No reason, then, to get sideways with “General” Washington.
Another possible reason for the change is that Federalist #77 was first published in a New York newspaper and written to some extent with a New York audience in mind. Here it’s useful to remember that a considerable amount of the text of Article II of the Constitution was borrowed from the New York Constitution of 1777. Under that constitution, nominations were made by the governor and appointments were confirmed with the “advice and consent” of four members of the state’s senate who, with the governor, constituted a “council of appointment.” Unless otherwise specified by the constitution, officials held their offices “during the pleasure of the council.”
Looking to the Constitutional Convention’s deliberations for some further evidence of Hamilton’s position, one’s left with the fact that Hamilton was not in Philadelphia when the text of the appointment provision was settled (Sept. 4, 1787). Nor was Hamilton recorded as making a statement when, three days later, the appointment provision was agreed to or in subsequent debates over the Senate’s role in appointments.
Another alternative—one rarely, if ever, considered—for understanding Hamilton’s change of opinion is to take seriously not only the point he makes in Federalist #77 but also the arguments he puts forward in the preceding Federalist papers about the need for and character of the energetic executive—an office, he says, in Federalist #70 that is “not [any] less essential to the steady administration of the laws.” It’s possible that the analysis he made in those essays provide the principled ground for Hamilton’s further reflection on where the removal power should rest.
Hamilton’s argument in Federalist #77 for the positive good of having the Senate consent to removal of administration officials was that this particular hurdle would “contribute to the stability of the administration,” making it less likely there would be a “revolution in the officers of the government as might be expected” if the president “were the sole disposer of offices.” Hamilton understood that sound administration—indeed, the rule of law properly understood—requires constancy in the laws’ application and execution.
There is an open question, however, about whether Hamilton saw the Senate as the principal key to administrative stability. In Federalist #71, he emphasized the stability that arises from the four-year tenure of the president—a term of office longer than any of the state governors at the time—and the prospect for unlimited reelections by a sitting president. Hamilton tied this potential independence from short-term political concerns to the kind of “personal firmness” required for effective administration. “[I]t is,” he argued,” certainly desirable that the executive should be in a situation to dare to act his own opinion with vigor and decision.”
This firmness, in turn, depends on an essential unity in the executive office, where energy is “most applicable to power in a single hand.” And because, as Hamilton notes in Federalist #72, “The administration of government…falls peculiarly within the province of the executive department,” the persons charged with “the immediate management” of the government’s affairs “ought to be considered as the assistants or deputies of the Chief Magistrate.”
While in Federalist #76 and #77, Hamilton described the Senate’s role in appointments as providing some reassurance that the president’s power to nominate officials would not be abused, his broader case for believing it was safe have a single, energetic chief executive was that the office was sufficiently dependent on the people through the Electoral College and because “one man” will have “sole and undivided responsibility” for administration. Executive unity would not only allow citizens to more adequately assess praise and blame but would also concurrently “naturally beget a livelier sense of duty and a more exact regard to reputation” from the Chief Executive himself.
In general, then, the thrust of Hamilton’s case for the presidency was that its singularity was essential for the executive tasks at hand and for assessing whether those tasks have been carried out effectively and responsibly. Given the problems associated with weak executives in the states following the Revolution and indecisive administrative efforts by the Continental Congress and the Congress under the Articles of Confederation, this is no surprise. In making the case for the unitary executive, Hamilton was explicit about the flawed institutional arrangements—plural executives, privy councils, and legislative obstruction in administration—at the root of those problems.
To be clear, Hamilton’s case for the presidency in The Federalist was that the office was designed to steer clear of those previous deficiencies. However, it is precisely the critiques of these previous institutional arrangements that could have also led Hamilton to doubt whether having the Senate involved in removals was truly in accord with the logic of the Constitution. For example, when Hamilton argued that the chief executive should be able to act with vigor and decisiveness, and that senior officials should be seen as his assistants, it’s certainly possible to see how those ends would be complicated if department heads owed their job security as much to members of the Senate as the president. As Hamilton noted in Federalist #76, involving a legislative assembly in appointments inevitably invites “private and party likings and dislikes, partialities and antipathies, attachments and animosities.” Would a president wanting to remove a senior administration official or ambassador not potentially face similar complications if the Senate had a decisive say in that decision?
That Hamilton may have had ulterior motive for reversing his position that the Senate’s consent extended to removals cannot be disproven. This could be either linked to his own ambitions for a cabinet post in the Washington administration or to the fact that he was writing initially for a New York audience that was accustomed to senators having a voice in both appointments and removals. However, given Hamilton’s rather blunt style of argumentation in much of The Federalist, it seems just as likely that he believed what he wrote at the time, and he had changed his mind by the time the First Congress debated removal power in 1789.
That Hamilton might have changed his mind should not be a surprise. After all, in mid-June of 1789, when the debate over the removal power resumed after an initial discussion in mid-May, Madison admitted that “since the subject was last before the House,” he had “examined the constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first place.” Yet, after thinking through not only the text of Article II (“The executive Power shall be vested in a President” and the duty to “take Care that the Laws be faithfully executed”) but also the logic of the Constitution’s system of separated powers, Madison firmly sided with the position that the removal belonged to the president as a constitutional matter. As he concluded in the debate on June 22, “[w]e ought always to consider the constitution with an eye to principles upon which it was founded.”
It seems equally plausible that Hamilton, living in New York at the same time Congress was meeting there and undoubtedly aware of the debate, had been moved to more thoroughly consider the logic of the principles he had spelled out about executive unity in The Federalist—and, having done so, concluded that it made less sense for the Senate to have a hand in removal decisions. In that respect, it could be said that Hamilton didn’t so much change his mind as more fully explicate what he believed the Constitution’s drafters had intended to do in crafting the office of the presidency.
Because the Constitution is silent about who has the authority to remove officials, it was inevitable that it would generate debate on what Madison said was “a very interesting constitutional question.” Even more so since, again according to Madison, how Congress answered the question “will become the permanent exposition of the constitution; and on a permanent exposition of the constitution will depend the genius and character of the whole Government.” It is highly unlikely that Hamilton—who, like Madison, typically dived deeply into first principles when confronted with fundamental questions of governance—would have cavalierly flipped his views on removal.
Finally, in changing his opinion on the Senate’s role with respect to removals, it must be admitted that Hamilton was putting to the side one element in his concern for stability in administration. The import of that change would become increasingly apparent as the nation’s Chief Magistrate evolved from being not only a constitutional officer but also the head of a political party. As Daniel Webster voiced to his Senate colleagues in 1835 in a debate over the removal power, once “the party chieftain becomes the national chieftain, he is still but too apt to consider all who have opposed him as enemies to be punished, and all who have supported him as friends to be rewarded….No candid man can deny that a great, a very great change has taken place, within a few years, in the practice of the executive government, which has produced a corresponding change in our political condition.” What Hamilton would have said about that development we can only surmise.