Title

New Light on the Decision of 1789

Abstract

In the Constitution’s earliest days, members of the House engaged in one of the nation’s most momentous constitutional debates. While deliberating on the Department of Foreign Affairs bill, representatives considered the mechanisms for removing executive officers. The final Act conveyed no removal authority but discussed what would happen when the president removed the Secretary of Foreign Affairs. The traditional view of the Decision, voiced by James Madison, Alexander Hamilton, and William Howard Taft, is that because the Act conveyed no removal authority and laid out what would happen when the president removed, the Act presumed that the president had a preexisting constitutional power to remove executive officers. But there has long been a revisionist view that the Decision did not decide any constitutional question, certainly not in any definitive way. Citing a split in the House majority on a crucial amendment, Louis Brandeis, Edward Corwin, and others have claimed that the majority coalition that voted for the Foreign Affairs Act was deeply divided on constitutional principles. In particular, revisionists have asserted that about half of the majority that approved the Foreign Affairs bill rejected the view that the Constitution granted the president a removal power. Using evidence recently made accessible, this article argues that the traditional reading of the Decision is the correct one. A majority in the House and the Senate concluded that the Constitution’s grant of executive power enabled the president to remove executive officers. Moreover, on two subsequent departmental bills, majorities in the House and the Senate voted to reaffirm the view that the executive power granted the president a removal power. The Decision of 1789 thus stands as the first significant legislative construction of the Constitution and as an exemplary episode when Congress approached its constitutional obligations with sophistication, sincerity, and deliberation.

Disciplines

Constitutional Law

Date of this Version

March 2005