Cornell Law Review Volume 91 Issue 5

New Light on the Decision of 1789

In the Constitution’s earliest days, before there were any federal judges, members of the House engaged in the young nation’s first constitutional debate.  While considering the bill to create a new Department of Foreign Affairs, Representatives considered the means of removing executive officers; the debate culminated in the Decision of 1789.  The traditional view of the Decision, held by James Madison, Alexander Hamilton, and William Howard Taft, is that because the Foreign Affairs Act conveyed no removal authority, but rather discussed what would happen when the President removed, the Act presumed that the Constitution granted the President a removal power.  There has long been a revisionist view, however, which holds that the Decision of 1789 did not resolve any constitutional question, certainly not in any definitive way.  Citing a split in the House majority on a crucial amendment, Justice Louis Brandeis, Edward Corwin, and others have argued that the majority coalition that voted for the Foreign Affairs Act was deeply divided on constitutional principles.  Specifically, revisionists have asserted that approximately half of the House majority that approved the Act did not in fact believe that the Constitution granted the President a removal power.  Using evidence recently made available, this Article defends the traditional understanding of the Decision.  Majorities in the House and Senate concluded that the Constitution’s grant of executive power enabled the President to remove executive officers.  On two later departmental bills, majorities in both chambers voted to reaffirm that view.  The Decision of 1789, the first significant legislative construction of the Constitution, is thus a rare instance when Congress confronted a difficult constitutional question and sided with its rival, the executive.  Moreover, the Decision stands as an exemplary episode in congressional history when Congress approached its constitutional obligations with sophistication, sincerity, and careful deliberation.


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