Bonus 121: The Unitary Executive Runs Amok

The Supreme Court may (and should) reject the broadest claims of executive power being made by the Trump administration. But it bears significant responsibility for enabling them in the first place.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of Thursday’s bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

For today’s bonus issue, I wanted to try to step back from the fast-moving developments and take a more holistic look at the stunning amount of power that President Trump has claimed in his first 2+ weeks in office, and its relationship to the “unitary executive” theory—the idea that, because the Constitution vests the executive power in a single person, that person must be able to exercise bureaucratic control over the entire executive branch. As folks who follow the Supreme Court even somewhat closely know, the justices have done quite a lot over the past 15 years—and especially over the past seven—to endorse that theory, and to recognize a degree of constitutionally required presidential control that we’ve never seen before.

To be sure, even the most aggressive academic and judicial proponents of the unitary executive theory have never argued for the amount of power Trump is claiming—from the power to impound funds Congress has appropriated to the power to shutter agencies Congress has created to the power to fire anyone within the executive branch who isn’t sufficiently loyal to the President. To be as blunt as possible, there are no Supreme Court decisions that support those assertions of power, nor do they even logically follow from any plausible reading of the “unitary executive” theory. These assertions are already faring poorly in the courts, and I suspect the Supreme Court, or at least a majority thereof, will be as skeptical as lower courts have been.

And yet, it’s impossible not to think that the Supreme Court’s aggressive moves toward endorsing the unitary executive theory have provided at least some support for what Trump is doing—and has put “on the wall” at least some arguments that would previously have been off of it. What’s worse, the breakdown in intra-branch and inter-branch accountability that we’re already seeing in the opening weeks of the second Trump administration is the exact cost of the Supreme Court’s executive power jurisprudence that its critics have been warning against for decades. To make a long story short, the Supreme Court didn’t cause this mess (unless you believe that Trump would never have been elected but for the immunity ruling; I’m not convinced), but its aggressive and controversial embrace of executive power has almost certainly enabled it.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.

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In 1866, the U.S. Supreme Court handed down its landmark decision in Ex parte Milligan, which barred the federal government from trying civilians in ad hoc military tribunals when civilian courts were available. Writing for the majority, Justice David Davis spent several pages explaining the dangers of an unchecked executive. The United States, he said, “has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution.” Instead, “wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.” That is why the United States has a written constitution, he concluded, and independent judges to enforce it—even, as in the case of Milligan, against President Abraham Lincoln himself.¹

Yet the executive branch has fared quite well in the courts in the years since Davis made his dire warning about unchecked presidential power—especially over the last 15 years. As plenty of scholars have flagged, there has long been a deep tension between two competing theories of executive power—one that locates power in the person of the president and another that finds it in the executive branch writ large, which is administered by the President but created, structured, and funded by Congress, and features an expertise-driven bureaucracy with authority over functions that are generally considered to be nonpartisan, from tax collection to food, aviation, and highway safety to funding for academic research. Indeed, the tug of war between these two camps has itself historically served as a check on presidential prerogatives. Presidential whims were often moderated by what might be called the “internal separation of powers,” which was nevertheless always subject, at the end of the day, to at least some presidential control.

Some degree of tension between these two competing visions is inevitable. But what is new is not just a president more willing to push the envelope than any of his predecessors; it is also a Supreme Court dedicated to putting its thumb on the scale. Unlike during most of the twentieth century, when the Court simply helped to maintain an equilibrium between the Oval Office and the administrative state, more recently, the Court has intervened in support of the office of the president, to the point that it can be reasonably be blamed for at least enabling Trump’s war against his own bureaucracy.

Indeed, while the federal bureaucracy was accreting independent administrative authority delegated by Congress, conservatives in the 1970s and 1980s were embracing a rival interpretation of the constitutional separation of powers known as the unitary executive theory. This theory found fertile ground up and down Pennsylvania Avenue, particularly as Republican presidents were in office for 20 of the 24 years between 1969 and 1993, and it had powerful advocates in two executive-branch lawyers appointed to the Supreme Court by Republican presidents during this time, William Rehnquist and Antonin Scalia. The Constitution says that “the executive Power shall be vested in a President of the United States,” and the theory’s central idea is that, as Scalia once put it, “this does not mean some of the executive power, but all of the executive power.” In other words, executive power lies with the president and the president alone.

According to this line of thinking, any independence within the executive-branch bureaucracy is constitutionally forbidden, regardless of its value. Presidents, therefore, exercise unimpeded control over the administrative state and can dismiss whomever they please, whenever they please, for whatever reason they please. This theory was trotted out to resist some of Congress’s most aggressive post-Watergate reforms, many of which were intended to strengthen the bureaucracy at the expense of presidential power—particularly in the areas of war powers and foreign affairs, where the arguments for executive primacy are the strongest.

Scalia wrote those pithy words about executive power at the end of his second term on the Supreme Court, in 1988, in a solo dissent from the Supreme Court’s ruling in Morrison v. Olson. That decision (written, it should be noted, by Rehnquist) upheld the independent-counsel provisions of the 1978 Ethics in Government Act, which empowered the U.S. attorney general and a special division of the D.C. federal appeals court to appoint an independent counsel to investigate senior government officials, who, the reasoning went, the president’s handpicked attorney general might be unwilling or unable to investigate himself. Crucially, the act protected the independent counsel from being fired except for “good cause.” In Scalia’s view, this last part was the true offense, for if the president could not fire a lawyer vested with the power to enforce the laws of the United States, then he did not, in fact, have the executive power.

One of Morrison’s most important holdings was that Congress could protect “inferior” executive-branch officers—in this case, the independent counsel—from being dismissed by the president without cause. “Principal” officers, including cabinet officials and ambassadors, have no such protection, or independence: these officers are appointed by the president and must be subject to removal at will. Thus, in the contest between the deep state and the unitary executive, Morrison tipped the scales in favor of the former.

Morrison remains on the books today, but barely. Its wrongness has become an article of faith among contemporary conservatives, and as the Supreme Court has turned further to the right, the justices’ efforts to gut it have accelerated. In 2010, for instance, Chief Justice John Roberts, writing for a 5–4 majority, effectively neutered the Public Company Accounting Oversight Board, which was created in the aftermath of the Enron and WorldCom accounting scandals to oversee the audits of public companies. A provision that protected members of the board from removal except for good cause, the Court argued, interfered with the president’s constitutional authority, because, unlike in Morrison, these officers could be removed only by other executive officers whose removal also required good cause, meaning that the president’s capacity to dismiss them was further limited. The Court rationalized this ruling by arguing that one level of independence is constitutional but two, as in the case of the PCAOB, is not. But that argument seemed as much to provide a fig leaf for distinguishing Morrison as it did to persuade.

But the brakes have truly come off since 2018. Justice Kavanaugh provided the fifth and decisive vote in the June 2020 ruling in Seila Law v. Consumer Financial Protection Bureau, which held that inferior officers otherwise covered by Morrison are not protected from removal without cause if they are the singular head of an independent agency, versus one of a number of commissioners in charge of an agency. In the abstract, the argument appeared plausible: the president should be able to hire and fire agency heads at will. But if the whole point of independent agencies is their independence, the ruling took a healthy bite out of Congress’s power to provide for such independence. (And there are various pending cases trying to get the Court to finish the meal—and overrule its 1935 ruling in Humphrey’s Executor, which is the source of what little independence remains in multi-member executive branch commissions.)

And at the end of her first term on the Court in 2021, Justice Barrett cast the decisive vote in United States v. Arthrex, which handed proponents of executive power an even more significant victory by dramatically narrowing the circumstances in which executive officers are considered “inferior” and are thus insulated from direct presidential control. At issue in Arthrex were the 200 or so patent judges within the U.S. Patent and Trademark Office who hear challenges to the validity of patents granted by the federal government. With Clarence Thomas joining the three Democratic appointees in dissent, the 5–4 majority held that even these minor executive-branch adjudicators are in fact “principal” officers under the Constitution because their decisions are not supervised by an executive-branch officer. In one fell swoop, the Court significantly winnowed the ranks of bureaucrats protected from presidential removal by Morrison and substantially increased the president’s direct control over administrative judges within the executive branch—a class of officials whose independence is central to their job.

Arthrex is no outlier. The clear takeaway from a handful of recent decisions is that the Supreme Court is now as committed to the idea of the unitary executive as it has been at any point in its history. Indeed, that theory shows up both overtly and indirectly at numerous points in Chief Justice Roberts’s majority opinion last July in the Trump immunity ruling.

Other than the immunity ruling, these decisions didn’t get the attention they deserved at the time. But in retrospect, they created an opportunity for Trump, who made no secret of his desire to amass presidential power. Thus, what had been a primarily judicial and academic movement, cloaked in dense legal jargon and technicalities, has quickly become a public spectacle, as Trump has moved to bend the executive branch to his will.

Taken to its limit, then, the unitary executive theory, in the hands of a President bent on using it for all its worth, eliminates one of the critical checks that exist to prevent presidents from pushing the envelope too far. With the administrative state rendered an arm of the Oval Office, and other political checks on presidential power, such as an institutionally responsible Congress, not stepping up to the plate, the president ends up being accountable to no one except the courts—who can enforce legal constraints on the President, but can’t stop him from making deeply misbegotten, or even destructive, policy and personnel decisions.

Trump is hardly the first president to push idiosyncratic theories of executive power. President George W. Bush, for instance, embraced what some scholars dubbed “the commander-in-chief override”—the idea that any statutory limits on the president’s national security powers were unconstitutional to the degree that they interfered with the president’s ill-defined authority as, in the Constitution’s words, “Commander-in-Chief of the Army and Navy of the United States.” The Supreme Court of that era implicitly rejected this theory in Hamdan. But today’s Supreme Court, by contrast, has reconfigured constitutional authority such that the president will have much more power going forward—even if he doesn’t have all of the power Trump is now claiming.

The question then becomes how to restore the balance that characterized both the executive branch and the separation of powers throughout the century after Davis’s ruling. It seems unlikely that Congress will reassert itself, whether because one party is reluctant to check the power of its own president or because legislation that does try to bolster existing checks will be vetoed by presidents who have no incentive to give away their own power. With the separation of parties taking the place of the separation of powers, interbranch checks on presidential power have increasingly fallen away—leaving only the intrabranch checks over which Trump is now running roughshod. It is also hard to be optimistic, given the polarized state of U.S. politics, that voters will simply eliminate the problem by electing presidents who decline to expand their own authority.

In that sense, the Supreme Court appears equal parts culpable for the current state of affairs and the least-worst hope for reform—to try to reestablish more of a balance between the chief executive and the administrative state. As Justice Oliver Wendell Holmes, Jr. once wrote, the key is to accept that “certainty generally is illusion, and repose is not the destiny of man.” In other words, the hard line of the unitary executive theory, comforting as it may be to those who seek certainty in knowing where federal power lies, does not make it the wiser choice: rather, as recent events have driven home rather emphatically, the United States is better off with tension between the Oval Office and its bureaucracy, and with a Supreme Court that understands the very real (and mounting) costs of the alternative.

1. Much of today’s post is adapted from a review I wrote of a wonderful book, Phantoms of a Beleaguered Republic, by the political scientists Stephen Skowronek, John Dearborn, and Desmond King.