The Decision of 1789 refers to a month-long constitutional debate that occurred during the first session of the

United States House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the Lower house, lower chamber of the United States Congress, with the United States Senate, Senate being ...

as to whether Article Two of the

United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...

granted the president the power to remove

officers of the United States An officer of the United States is a functionary of the executive or judicial branches of the federal government of the United States to whom is delegated some part of the country's sovereign power. The term "officer of the United States" is not a ...

at will. It has been called "the first significant legislative construction of the Constitution". The debate centered around "a bill that would create a Department of Foreign Affairs"—the precursor to the

Department of State The United States Department of State (DOS), or State Department, is an executive department of the U.S. federal government responsible for the country's foreign policy and relations. Equivalent to the ministry of foreign affairs of other nati ...

—and which branch of government would have the power to remove officers from that department. Congress ultimately enacted three departmental acts "that contained nearly identical language", none of which contained language expressly granting the President removal power. Nonetheless, one of those acts included a proviso urged by

James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...

that many scholars believe "was meant to imply recognition that the Secretary would be removable by the President at will". Justices of the Supreme Court and legal scholars continue to debate the legal significance of the decision.

Debate over constitutional meaning

Some of the United States' leading figures have used the decision as support for presidential removal power. Writing as Pacificus,

Alexander Hamilton Alexander Hamilton (January 11, 1755 or 1757July 12, 1804) was an American military officer, statesman, and Founding Father who served as the first United States secretary of the treasury from 1789 to 1795. Born out of wedlock in Charlest ...

stated that the Decision of 1789 construed the Constitution as placing full executive removal power with the President. This view was supported by Chief Justice

John Marshall John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...

in his biography of George Washington. In ''

Myers v. United States Myers as a surname has several possible origins, e.g. Old French ("physician"), Old English ("mayor"), and Old Norse ("marsh"). People * Abram F. Myers (born 1889), chair of the Federal Trade Commission and later general counsel and board ch ...

'', Chief Justice

William H. Taft William Howard Taft (September 15, 1857March 8, 1930) was the 27th president of the United States (1909–1913) and the tenth chief justice of the United States (1921–1930), the only person to have held both offices. Taft was elected pr ...

, writing for the majority, used the Decision of 1789 as support for broad presidential removal powers. More recently, Chief Justice

John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including ''Nati ...

used the decision in both ''Free Enterprise Fund v. Public Company Accounting Oversight Board'' (2010) and ''Seila Law LLC v. Consumer Financial Protection Bureau'' (2020) to support his construction of the President's removal power. Thus, it has been used as support in two Supreme Court cases that set precedent.John L. Gedid, ''History and Executive Removal Power: Morrison v. Olson and Separation of Powers'', 11 Campbell L. Rev. 175, 176 (1989). Nonetheless, "there is considerable evidence that the framers of the Constitution themselves could not agree on the meaning or significance of constitutional language defining the appointment and removal powers of the executive branch". In ''Seila Law'', Justice

Elena Kagan Elena Kagan ( ; born April 28, 1960) is an American lawyer who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 10, 2010, and has served since August 7, 2010. Kagan ...

challenged Roberts's characterization of the Decision of 1789, stating that " e best view is that the First Congress 'was deeply divided' on the President's removal power, and 'never squarely addressed' the central issue here".Seila, 140 S. Ct. at 2230 (Kagan, J., concurring in part and dissenting in part) (quoting Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021, 1072 (2006)).

References

{{Authority control 1st United States Congress 1789 in New York (state) Article Two of the United States Constitution Political debates United States constitutional law United States Department of State

Debate over constitutional meaning

See also

References