Presidential Power and What the First Congress Did Not Do

Scholars, advocates, and judges have long debated the scope of the President’s “executive Power” under Article II, Section 1, of the Constitution. New articles by, among others, Professors Jean Galbraith, Julian Mortenson, Jed Shugerman, and Ilan Wurman have sharply rekindled those contentions, particularly with regard to the President’s power to remove executive officers and to conduct the foreign affairs of the United States. This Essay takes a close look at one piece of the executive power puzzle: what the First Congress did and did not do in 1789 regarding the powers of the President. Unlike prior accounts, which have devoted great effort to parsing congressional debates, it focuses specifically on the text of Congress’s 1789 enactments establishing the executive departments, with particular attention to what Congress did not do.

The Essay further contrasts these enactments with earlier actions of the Confederation Congress and with the 1789 Congress’s amendment of the Northwest Ordinance. It finds that the nonactions of the First Congress support the view that the Constitution in Article II, Section 1, gave the President independent power over some aspects of foreign affairs and independent power to remove executive officers.