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Executive Removal Power Part I: The Decision of 1789

What is the removal power and why is it important? Professor Ilan Wurman discusses early debates about the implications of the Executive power specified in the Constitution. The Framers concluded that the President must have the power to oversee and remove officers with executive functions. https://youtube.com/watch?v=Xhz_iIJogiQ


The first Congress had a debate over the removal power; the power of the President to remove executive officials. The removal power is mentioned nowhere in the Constitution. Congress's conclusion about the removal power in 1789 is often called the Decision of 1789. It was Congress's interpretation of the Constitution's provisions. The first Congress was tasked with creating the first executive departments, so they created the Department of Foreign Affairs or State, the Department of War, and the Department of Treasury. Each of these departments was headed by a principal officer or a secretary. The question arose whether the president had a constitutional power to remove these principal officers at will or whether the president could only remove these principal officers by and with the advice and consent of the Senate, the same advice and consent that was necessary for the appointment in the first place. The debate in the first Congress illustrates the structure of executive power. James Madison, Fisher Ames, and other representatives made two arguments in favor of a presidential power of removal. The two constitutional arguments that the first Congress made about the removal power was, first, about the structure of executive power and, second, about the Take Care Clause. As for the structure, the first Congress concluded that the vesting clause of Article II, Section 1 was a general vesting power subject only to particular limitations explicitly enumerated in the text. For example, the Constitution provides that the Senate shall have a say in the making of treaties. The Constitution says that Congress shall have a say in declaring war. Thus, both the president's general executive power and the limitations on that power are enumerated in the Constitution If the power to remove executive officers is an executive power, it thus vests in the President of the United States unless that removal power, that executive power, is subject to specific limitations in the text. The first Congress concluded that the power to oversee, superintend, and remove executive officials was an executive power, and because it wasn't limited elsewhere in the text it belonged to the executive, it vested in the president. The second argument was rooted in the “Take Care” clause. The Constitution says the President has the duty to take care that the laws be faithfully executed. Madison and others said this duty implies that the President has that species of power, the removal power, necessary to accomplish that end. How can the President ensure the faithful execution of the law if he does not have control and the power to remove his assistants who are helping him to execute the law?

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