ArtII.S2.C2.3.15.2 Decision of 1789 and Removals in Early Republic

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

While the Constitution provides that federal judges shall retain their “offices during good behavior,” which the Court has interpreted to mean that judges are entitled to life tenure absent resignation or impeachment,1 it does not expressly specify how long Executive Branch officers may remain in office (although they may retire and are subject to impeachment).2 The Framers’ understanding of the removal power—regarding both who wields the power to remove Executive Branch officers as well as the circumstances in which they may be removed—is not clear from the records of the Constitutional Convention or other contemporaneous documents.3 However, a major debate and decision of the First Congress on the matter, commonly known as the “Decision of 1789,” has informed the Nation’s understanding of where the removal power is placed,4 although scholars and judges disagree about the best understanding of that decision.5 The implications of the Decision of 1789 are particularly important because the Supreme Court has made clear that the views of the First Congress are “weighty evidence” of the Constitution’s meaning since many of the Framers were elected to that body.6

The Decision of 1789 concerns the debate in the First Congress over whether the Constitution authorizes the President to remove Executive Branch officers unilaterally.7 On May 19, 1789, Representative Elias Boudinot proposed establishing the executive departments of the Treasury, War, and Foreign Affairs;8 Representative James Madison subsequently proposed that the Secretaries of these Departments be removable by the President alone.9 The House debated the issue for over a month,10 focusing in particular on whether the President enjoyed power under the Constitution to remove government officers absent legislation specifically authorizing him to do so.11 Congress eventually passed bills for each department that removed any explicit mention of removal authority, but provided that a lower-level department official would take custody of the department’s records whenever the department head “shall be removed from office by the President of the United States” or in any other case of a vacancy.12

The Supreme Court has cited the Decision of 1789 a number of times as congressional acknowledgment that Congress does not possess a direct role in the removal process.13 There is some dispute over whether a majority of legislators affirmed that the Constitution vests the President with removal authority, or whether no majority actually supported a specific position on the issue.14 Still, early historical practice confirms that the President’s power to appoint Executive Branch officers includes authority to remove them. In the 1926 case of Myers v. United States, the Supreme Court opined that the Decision of 1789 affirmed that the President is entrusted with power to remove those officers he appoints, a proposition that “was soon accepted as a final decision of the question by all branches of the government.” 15

The Nation’s first two Presidents, George Washington and John Adams, each unilaterally removed Executive Branch officers, although neither of them removed a large number of officials.16 President Thomas Jefferson, although initially considered an opponent of a powerful Executive, likewise exercised this power, removing more officials than either Washington or Adams.17 Presidents James Madison, James Monroe, and John Quincy Adams also exercised the power of removal over Executive Branch officers, although they appear to have each removed a smaller number than Jefferson.18 This historical practice of presidential removal of Executive Branch officers was reinforced by Attorney General opinions affirming the President’s constitutional power to do so.19 Congress, however, asserted some control over the tenure of certain Executive Branch positions. During the Administration of President Monroe, Congress passed the Tenure of Office Act of 1820, which provided that certain Executive Officers be appointed for a term of four years, “but shall be removable from office at pleasure.” 20

See Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. 665, 668 (2015) (describing “the protections of Article III” enjoyed by federal judges as including “life tenure and pay that cannot be diminished” ). back
Compare U.S. Const. art. III, § 1 (federal judges) with id. art. II, § 2, cl. 2 (officers generally). back
For instance, courts and scholars have debated the significance of Alexander Hamilton’s understanding, expressed in the Federalist Papers, of the scope of the President’s removal power and the role of the Senate in removal decisions. See The Federalist No. 77 (Alexander Hamilton) (appearing to argue that the President would require Senate consent under the Constitution to remove Executive Branch officers); Alexander Hamilton, Pacificus No. I (June 29, 1793), in 4 The Works of Alexander Hamilton 432, 439 (Henry C. Lodge ed., 1971); Myers v. United States, 272 U.S. 52, 136–37 (1926) (majority opinion) (arguing that Hamilton originally believed that Senate consent was required to remove Executive Branch officers, but that he later changed his mind); id. at 293 & n.86 (Brandeis, J., dissenting) (noting Hamilton’s position in the Federalist No. 77); Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149, 151 (2010) (arguing against the “standard or consensus view . . . that Hamilton was speaking to removal, [which] has been adopted by Supreme Court majorities and dissents, lower federal courts, and by academics in law and in other fields” ); Jeremy D. Bailey, The New Unitary Executive and Democratic Theory: The Problem of Alexander Hamilton, 102 Am. Pol. Sci. Rev. 453, 458 (2008) ( “If Hamilton is the father of the unitary executive, why did he write in The Federalist that the president would share the removal power with the Senate?” ). back
Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1022 (2006) ( “One of the most significant yet less-well-known constitutional law decisions is the ‘Decision of 1789.’” ); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 23 (1994) (noting the “great debate about the President’s removal powers that occurred when the first Congress created the first departments in the new government—a debate known as the Decision of 1789” ). back
See Prakash, supra note 4, at 1023–25 (describing different understandings of the debate espoused by scholars and judges). Compare Myers v. United States, 272 U.S. 52, 114 (1926) (Taft, J.) ( “[T]here is not the slightest doubt, after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson impeachment trial in 1868 its meaning was not doubted, even by those who questioned its soundness.” ), and 5 John Marshall, The Life of George Washington 200 (1807), with David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801, at 41 (1997) (arguing that “there was no consensus” in the House regarding whether the President received the removal power from “Congress or the Constitution itself” ), and 1 Corwin on the Constitution 332 (Richard Loss ed., 1981). back
Bowsher v. Synar, 478 U.S. 714, 723 (1986) (quoting Marsh v. Chambers, 463 U.S. 783, 790 (1983)); Myers v. United States, 272 U.S. 52, 146 (1926). back
See Josh Chafetz, Congress’s Constitution, Legislative Authority and the Separation of Powers 100 (2017); Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1282–89 (2006). For a record of the debate in Congress, see 1 Annals of Cong. 384–412, 473–608, 614–31, 635–39 (1789). back
1 Annals of Cong. 368–69 (1789). back
1 Annals of Cong. 371 (1789). back
Currie, supra note 5, at 36. back
Currie, supra note 5, at 36–41. back
See Act of Jul. 27, 1789, ch. 4, § 2, 1 Stat. 28, 29; Act of Sept. 2, 1789, ch. 12, § 7, 1 Stat. 65, 67; Act of Aug. 7, 1789, ch. 7, § 2, 1 Stat. 49, 50. back
See, e.g., Bowsher v. Synar, 478 U.S. 714, 723 (1986); Myers v. United States, 272 U.S. 52, 146 (1926); Parsons v. United States, 167 U.S. 324, 338–43 (1897). back
Chafetz, supra note 7, at 100–01; Prakash, supra note 4, at 1023–25. back
272 U.S. 52, 136 (1926). back
3 Joseph Story, Commentaries on the Constitution of the United States § 1537 (1833). back
Story, supra note 16, § 1537; Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 Case W. Res. L. Rev. 1451, 1478–95, 1499–1501 (1997); Leonard D. White, The Federalists: A Study in Administrative History 285–88 (1948). back
Story, supra note 16, § 1537; Calabresi & Yoo, supra note 17, at 1507–26; Leonard D. White, The Jeffersonians: A Study in Administrative History 1801–1829, at 379–80 (1951). back
See, e.g., Dismission of a Paymaster Under Act of 1823, 2 Op. Att’ys Gen. 67 (1828) ( “Mr. Clark held his commission as paymaster during the pleasure of the President; and the power of the President to dismiss him, at pleasure, is not disputed.” ). back
Act of May 15, 1820, ch. 102, § 1, 3 Stat. 582, 582. back