University of Notre Dame

Presidential Power and What the First Congress Did Not Do

November 29, 2023

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Presidential Power and What the First Congress Did Not Do

Michael D. Ramsey*

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.

© 2023 Michael D. Ramsey.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Warren Distinguished Professor of Law, University of San Diego School of Law.  For helpful comments, thanks to Saikrishna Prakash and to Aditya Bamzai, Jennifer Mascott, Michael McConnell, Jed Shugerman, Ilan Wurman, and other participants at the Stanford Law School conference on “Histories of Presidential Power” at which an earlier version of this Essay was presented.