Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date





Petitioners and the en banc Court of Appeals below have rested their contention that the Constitution grants the President at-will removal authority over the head of the Federal Housing Finance Agency (FHFA) on historical claims about the first Congress’s ostensible “Decision of 1789.” In so doing, Petitioners are following Chief Justice Taft’s account in Myers v. United States, upon which this Court relied on in 2010 and again last term for an originalist interpretation of Article II. New historical research shows that Myers was incorrect. The “Decision of 1789” actually supports, rather than undermines, Congress’s power to limit presidential removal.

Myers asserted that the first Congress’s “Decision of 1789” declared that the Constitution assigned removal power to the President alone: “[T]here is not the slightest doubt, after an examination of the record, that the [Foreign Affairs] 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.” 272 U.S. 52, 117 (1926). New evidence calls for a re-examination of this record, raising more than just a doubt.

Originalism depends upon clear historical evidence of public meaning. Seila Law LLC v. Consumer Financial Protection Bureau noted that the first Congress’s view “provides contemporaneous and weighty evidence of the Constitution’s meaning.’” 140 S. Ct. 2183, 2197 (2020) (internal quotation omitted). Overlooked Senate records show no consensus in the first Congress to support Myers’s interpretation. To the contrary, this new evidence suggests a very different decision in 1789. The first Congress rejected “presidentialism,” the more general constitutional claim that the President alone can remove principal officers confirmed by the Senate, even the heads of the Departments of Foreign Affairs, War, and especially Treasury; and it rejected the more specific claim of exclusive or “indefeasible” presidential removal under Article II (a claim by the Petitioners here), that presidential removal is “at pleasure” or “at will.” Both positions rely on a claim that Article II establishes “unitary” or exclusive presidential removal, unchecked by other branches.

The most significant new evidence:

1) Senator William Maclay’s diary reveals initial opposition to presidential removal (of any source) in the Senate, which is the most plausible explanation for Madison’s sudden retreat from a clear removal clause to an ambiguous one. Madison’s opponents and allies identified this shift as evasion or reconciliation with the Senate.

2) The first head-count of the House by constitutional categorization demonstrates that only about one third of the House supported the “presidential” interpretation, and a wide majority rejected it.

3) New evidence from the Treasury debate and from a series of statutes reveal further rejection of exclusive presidential removal, especially in the domain of finance. Congress delegated removal power, even of the Secretary of Treasury, to the judiciary.

4) This widespread opposition to presidentialism in 1789 prompts a re-reading of the Constitution’s text, the Convention, and the Ratification debates. New research on “vesting” shows that this text likely did not have a public meaning of “exclusive” or “indefeasible.”

Myers was mistaken. The first Congress opposed this interpretation of Article II, forced the deletion of the clear removal language in the Foreign Affairs bill, and then enacted six anti-presidentialist removal clauses. It would be an error in terms of originalism to rely on the first Congress or the Executive Vesting Clause to invalidate the FHFA structure.

Find on SSRN

Included in

Legal History Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.