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.
What an absolute joke that the same conservative justices who held Joe Biden exceeded his authority by forgiving student loan debt will likely endorse many (if not all) of Trump's abuses of power.
I think Trump, with the acquiescence of Republicans in Congress, has adopted a "unitary federal government" theory (i.e., dictatorship) as opposed to merely a "unitary executive." In that theory, the President can ignore laws passed by Congress and court orders. Of course, he doesn't need subtle legal theories and justifications to assert power when no one will stop him.
Steve, thanks for the easy-to-undestand explainer.
So, there's lot of folks screaming 'illegal', illegal, illegal' (as if they don't know 'illegal' is a sick bird) when it comes to Elon Musk allegedly accessing confidential data on citizen's financial and health data, supposedly in contravention of existing law. If that is in fact happening, how does it stop if the screams of 'illegal' do not deter the purported behavior? Somebody files a lawsuit? Who sues? Where? What law(s) are violated? I don't see much on this in the MSM. Thanks. (Oh, and too bad you're not still in Texas where ICE is stopping elementary school buses in the Valley looking for 'criminals'.)
I'd not seen your "illegal" = "ill eagle" word play before ... good one!
Regarding your point about us citizens not understanding what is/is not legal, I recently wondered if Trump's folding DOGE into USDS (US Digital Service) was legal. I searched the web to learn how the US Digital Service - which now houses DOGE - was first created. I assumed it was by congressional legislation - nope! Was it created via executive order? I guess: https://www.federalregister.gov/documents/2012/06/01/2012-13470/building-a-21st-century-digital-government Basically, Obama created the USDS as a "White House startup." So, if our laws allow Obama to create the service as a "White House startup," I guess we can't complain when Trump folds another "White House startup" - DOGE - into it.
Unfortunately, most citizens aren't retired old ladies, so they don't have the time to pursue these questions. The so-called journalists in our midst would be using their press freedoms more effectively imo if they raised and answered questions such as these clearly and concisely. But nah - so much more interesting to just report on the mishegoss! [mishegaas? mishugaas - correct spelling is nearly as disputed as the constitutionality of administrative law]
What do you mean “if” it is in fact happening? Are you doubting the reporting of, e.g., Nathan Tankus, who has sources with knowledge of the situation who have confirmed that it has happened?
Steve, what is needed is a constitutional interpretation; “THE executive power” is not plain-meaning text. Scalia gave his own spin in Morrison; Chief Justice Rehnquist, also a former executive branch lawyer, did not agree with him. The constitution does not SAY “unchecked executive power” — and there is much evidence, in the federalist papers and elsewhere, that “unchecked” was not intended. Rather, Congress may provide “CHECKS and balances.” And the President has the textual constitutional duty to “execute” the laws Congress enacts, “faithfully.”
Eureka! Thanks to your clear and concise explanation, I finally am experiencing an inkling of a sense that I more fully understand "unitary executive" - a term that I've encountered repeatedly over the past decade but that mostly caused my eyes to roll back in their sockets. Very helpful here is your statement about "the federal bureaucracy ... accreting independent administrative authority delegated by Congress" and the tensions that arose from that accretion:
"[T]here 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....****"
Presidents don't make law; that's Congress's purview. I've always understood "take care that the laws be faithfully executed" as a requirement that the executive branch forthrightly implement all laws passed by Congress - legislators legislate; the executive executes. But now I better understand that the issue at hand is to what extent Congress can determine the structure, authority, and independence of executive-branch entities as it writes administrative law.
Also very helpful was your definition of principal v. inferior officers: "... Congress could protect “inferior” executive-branch officers ... 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." Your point about one v. two layers of independence helped clarify this.
I'm far from 'mastery' of these concepts, but believe that I can be a more informed citizen with a more nuanced response to Trump's predation. Trump is not a "wise and humane ruler[], sincerely attached to the principles of the Constitution." Thus, we mere mortals will face an onslaught of arguments about what is/is not legal. Because of your essay, I am better equipped to face that onslaught. Again, thank you!
Another great (though sobering) article. I have to slightly disagree about the Supreme Court not causing this mess, though not because of Trump v. United States (2024). I feel the unanimous decision in Trump v. Anderson was improper, as creating a ‘patchwork’ among different States is not a compelling argument, and neither is an assertion that Section 5 of the 14th Amendment is the exclusive mode of enforcing Section 3 (Disqualification Clause). It may occur rarely with Supreme Court decisions, but unanimity is no guarantee of correctness.
Justice Gorsuch chose the title, "A Republic, If You Can Keep It", for one of the books he wrote. He may not like Trump's indifference to that admonition of Ben Franklin. But, he and others on the Court, both current and recent, have great culpability by eroding the checks and balances both between the 3 branches and within the Executive.
I recently listened to an interview with historian Doris Kearns Goodwin, drawing parallels between Trump and the spoils system that was rampant during Andrew Jackson's presidency (and well afterward). If the courts and congressional Republicans fail to stand up to Trump in any meaningful way, the damage he is likely to cause may take generations to undo.
There is no limiting principle to unitary executive theory is there? Trump right now is asserting a strong form of the theory, one that goes way beyond what courts have been willing to countenance. But, if one person truly is the branch, then in a logical sense isn't Trump's assertion right? What I mean is that to the extent courts have limited Presidential authority, it has been by not buying in fully to the principle, right?
In combination with a Congress unwilling to assert its own authority, the unitary executive theory is madness.
Recommend U.S v Trump ( immunity decision, No. 23-939). CJ Roberts cites Art II S1, "The executive Power shall be vested in a President ..."
See especially pp. 7-10 of the opinion (citations omitted).
To SV's point, a key sentence from Roberts' opinion is "The President 'occupies a unique position in the constitutional scheme,' as 'the only person who alone composes a branch of Government' (p. 10). In this executive role, where the Constitution gives the President "conclusive and preclusive" authority, neither Congress nor the Court has a say, supporting the unitary executive position.
On the other hand, "not all of the President's official acts fall within his 'conclusive and preclusive authority" (p 9). "As J. Robert Jackson recognized... "the President sometimes 'acts pursuant to an express or implied authorization of Congress,' or in a 'zone of twilight' where he and Congress have concurrent authority" (p. 9).
And, "if the President claims authority to act but in fact exercises mere "individual will" and "authority without law," the courts may say so" (p. 8).
Please review the reporting from Nathan Tankus regarding Elon Musk and his team’s illegal infiltration of the Bureau of Fiscal Service, available here: https://www.crisesnotes.com/.
The community of legal scholars, law students, and practicing lawyers is large and powerful. To the extent our community can be mobilized to stop this immediate catastrophe, we should attempt to mobilize.
Steve, I don’t know how many justices have known what I just realized.
Has President Trump extratextual powers, including executive orders and a unilateral power to fire?
Art II §1: “The executive power shall be vested in a president of the United States.
Art I §1: “All legislative powers herein granted shall be vested in a Congress…”
These are different. The text GRANTS Congress certain legislative powers, limited to those textually granted, but VESTS in the president one whole executive power. The clauses differ both in operation and in nature.
Of course, these branches differ both in operation and in nature.
*A member of Congress is elected. Congressional powers are representative. But we elect a temporary artificial constituency that exists for one day, elects the president and the vice president, then dissolves. The executive power is nonrepresentative.
*Nor are all powers held by Congress legislative, or all powers held by presidents executive. Congress’ nonlegislative powers include administering the United States internal sanctions (impeachment of any officer, expulsion or other sanction of their own members), and overseeing some actions of the state governments. Congress’ nonlegislative powers are vested elsewhere in the text, not granted or limited by Article I §1 that only addresses their legislative powers. The president’s nonexecutive powers include the head of state power, jointly with the Senate, and the civil commander in chief power, with the military and militias (both governed by Congress when not in action). And while the executive power is vested solely in the president, it is then divided into departments whose heads can hold sole power to appoint their inferior officers. To date only Congress has exercised its legislative and other powers, though the executive departments have regulatory arms whose acts must be ratified by Congress.
This and far more has been capably argued elsewhere.
Article II §2 vests in the president power to “nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be provided for by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.”
The Supreme Court refused to address this question until 1929, then in Myers v United States, 272 US 52 (1929) held in unmitigated favor of a unilateral presidential power to displace appointees. Myers remains the standard citation, not just for firing power but for all presidential powers not textually expressed. But the few statutes on firing passed before 1929 were either nuanced or vague. The Myers Court read each only one way, and erred gravely in finding each of these:
*The Vesting clause allows the president to displace officers without the Senate’s advice or consent.
*The Vesting clause allows the president a sole power to displace with or without the sole power to appoint.
*Where Congress vests the sole power to appoint inferior officers in the heads of departments, the Vesting clause allows the president to exercise it anyway.
*Congress can by statute vest a sole appointment power for superior officers.
Our analysis: The Court failed to apply the text most directly relevant.
Congress debated the breadth of presidential powers in its first term. Its Decision of 1789, relying on Article II’s Vesting clause, vested in presidents an extraconstitutional power to displace appointees without the Senate’s advice or consent. The final vote was a tie broken by the president of the Senate, John Adams who as vice president hoped to be president himself after Washington.
The Myers Court found the Decision of 1789 lasted without a break for 73 years.
It lasted a year and a half.
The Bill of Rights was ratified December 15, 1791.
Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Setting aside Article V for the moment, a principle of legal construction is that a later law takes precedence over an earlier one unless the earlier one is clearer and more specific. The Legislative Powers, Necessary and Proper, Vesting, and Reserved Powers clauses are all general. If they were all statutes the later Amendment X would take precedence over the Vesting clause that appears to allow extraconstitutional presidential powers.
Had X said, “powers not delegated to the Congress by the Constitution, nor prohibited by it to the state legislatures,” the distinction between Congress’ powers and the president’s would remain. By reserving all powers not delegated to the United States by the Constitution, it also reserves all powers not textually delegated to the president. Both the United States legislative and executive powers are now required to be textual. Including their Appointment powers.
And of course none were just statutes. They were clauses of a constitution. Amendment X amended the text in accordance with Article V.
Congress has as great a claim on inherent power as the president: None.
The Decision of 1789 was not a constitutional clause but a simple US-level statute. Article VI expresses the Constitution’s supremacy over all other law in the USA. Since only a statute, not Article II, had granted the president power to displace appointees unilaterally, the Vesting clause as amended by Amendment X controls above the Decision of 1789.
Once more, with feeling:
Amendment X amends the Vesting clause.
Presidents have no greater claim to extratextual powers than Congress or the US courts: None.
Article II §2 vests in the president power to Article II §2 vests in the president power to “nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be provided for by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.”
Has President Trump extratextual powers, including unilateral power to fire?
The Supreme Court refused to address this question until 1929, then in Myers v United States, 272 US 52 (1929) held in unmitigated favor of a unilateral presidential power to displace appointees. Myers remains the standard citation, not just for firing power but for all presidential powers not textually expressed.
But few statutes in our history addressed firing. The few passed before 1929 were either nuanced or vague. The Myers Court read each only one way. Myers erred gravely in finding any of these:
*The Vesting clause allows the president to displace officers without the Senate’s advice or consent; or
*The Vesting clause allows the president a sole power to displace with or without the sole power to appoint; or
*Where Congress vests the sole power to appoint inferior officers in the heads of departments, the Vesting clause allows the president to exercise it anyway; or
*Congress can by statute vest a sole appointment power for superior officers.
None is upheld by text. Nor is the text nuanced on these points. The Myers Court fails to apply the text most directly relevant to extraconstitutional presidential powers.
Art II §1: “The executive power shall be vested in a president of the United States.
Art I §1: “All legislative powers herein granted shall be vested in a Congress…”
These are different. They GRANT Congress certain legislative powers, limited to those textually granted, but VEST in the president one whole executive power. The clauses differ both in operation and in nature. The Myers Court makes much of this. But these branches differ both in operation and in nature.
A member of Congress is elected. Congressional powers are representative. But we elect a temporary artificial constituency that exists for one day, elects the president and the vice president, then dissolves. The executive power is nonrepresentative. Nor are all powers held by Congress legislative, or all powers held by presidents executive.
Congress’ nonlegislative powers include administering the United States internal sanctions (impeachment of any officer, expulsion or other sanction of their own members), and overseeing some actions of the state governments. Congress’ nonlegislative powers are vested elsewhere in the text, not granted or limited by Article I §1 that only addresses their legislative powers.
The president’s nonexecutive powers include the head of state power, jointly with the Senate, and the civil commander in chief power, with the military and militias (both governed by Congress when not in action). And while the executive power is vested solely in the president, it is then divided into departments whose heads can hold sole power to appoint their inferior officers. To date only Congress has exercised its legislative and other powers, though the executive departments have regulatory arms whose acts must be ratified by Congress.
This and far more has been capably argued elsewhere.
Our analysis will assume, solely for the purpose of argument, that the Vesting clause allows the president what the Legislative Powers clause bars from Congress:
Powers not vested by the people via the Constitution.
Congress debated the breadth of presidential powers in its first term. Its Decision of 1789, relying on Article II’s Vesting clause, vested in presidents an extraconstitutional power to displace appointees without the Senate’s advice or consent. The final vote was a tie broken by the president of the Senate, John Adams who as vice president hoped to be president himself after Washington.
The Myers Court found the Decision of 1789 lasted without a break for 73 years.
It lasted a year and a half.
The Bill of Rights was ratified December 15, 1791.
Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Setting aside Article V for the moment, a principle of legal construction is that a later law takes precedence over an earlier one unless the earlier one is clearer and more specific. The Legislative Powers, Necessary and Proper, Vesting, and Reserved Powers clauses are all general. If they were all statutes the later Amendment X would take precedence over the Vesting clause that appears to allow extraconstitutional presidential powers.
Had X said, “powers not delegated to the Congress by the Constitution, nor prohibited by it to the state legislatures,” the distinction between Congress’ powers and the president’s would remain. By reserving all powers not delegated to the United States by the Constitution, it also reserves all powers not textually delegated to the president. Both the United States legislative and executive powers are now required to be textual. Including their Appointment powers.
And of course none were just statutes. They were clauses of a constitution. Amendment X amended the existing text, in accordance with Article V.
Congress has as great a claim on inherent power as the president: None.
The Decision of 1789 was not a constitutional clause but a simple US-level statute. Article VI expresses the Constitution’s supremacy over all other law in the USA. Since Congress, not Article II, had granted the president power to displace appointees unilaterally, the Vesting clause as amended by Amdt X controls above the Decision of 1789.
Steve, I don't know how many Justices have known what I realized today. But here it is:
Article II §2 vests in the president power to
nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be provided for by law;
but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.
“at the pleasure of the president”
That phrase so beloved of the Maga echoes Great Britain’s “at the pleasure of the King,” and that is its undoing.
Has President Trump extratextual powers, including unilateral power to fire?
One representative case is AFL-CIO v Trump et al, (1:25-cv-00264, DDC), brought on behalf of civil servants.
The Supreme Court refused to address this question until 1929. Then Myers v United States, 272 US 52 (1929) held in unmitigated favor of a unilateral presidential power to displace appointees. Myers remains the standard citation, not just for firing power but for all presidential powers not textually expressed.
But few statutes in our history addressed firing. The few passed before 1929 were either nuanced or vague. But the Myers Court read each only one way. RepairRestoreSafeguard, Inc. might have enjoyed playing devil’s advocate, reading them all in the opposite permissible ways to learn how far Myers applies. But no need exists.
The Myers Court erred gravely in finding any of these:
The Vesting clause allows the president to displace officers without the Senate’s advice or consent; or
The Vesting clause allows the president a sole power to displace with or without the sole power to appoint; or
Where Congress vests the sole power to appoint inferior officers in the heads of departments, the Vesting clause allows the president to exercise it anyway; or
Congress can by statute vest a sole appointment power for superior officers.
None is upheld by text. Nor is the text nuanced on these points. The Myers Court fails to apply the text most directly relevant to extraconstitutional presidential powers.
Art II §1
The executive power shall be vested in a president of the United States.
Art I §1
All legislative powers herein granted shall be vested in a Congress…
These are different. They grant Congress certain legislative powers, limited to those textually granted, but vest in the president one whole executive power. The clauses differ both in operation - to grant is not to vest - and in nature. The Myers Court makes much of this.
But that could be due to the ways these branches differ both in operation and in nature.
A member of Congress is elected. Congressional powers are representative.
But we elect a temporary artificial constituency that exists for one day, elects the president and the vice president, then dissolves. The executive power is nonrepresentative.
Nor are all powers held by Congress legislative, or all powers held by presidents executive.
Congress’ nonlegislative powers include
administering the United States internal sanctions (impeachment of any officer, expulsion or other sanction of their own members)
overseeing some actions of the state governments
Congress’ nonlegislative powers are vested elsewhere in the text, not granted or limited by Article I §1 that only addresses their legislative powers.
The president’s nonexecutive powers include
the head of state power, jointly with the Senate,
the civil commander in chief power, with the military and militias (both governed by Congress when not in action).
And while the executive power is vested solely in the president, it is then divided into departments whose heads can hold sole power to appoint their inferior officers. To date only Congress has exercised its legislative and other powers, though the executive departments have regulatory arms whose acts must be ratified by Congress.
This and far more has been capably argued elsewhere.
The instant analysis will assume, solely for the purpose of argument, that the Vesting clause allows the president what the Legislative Powers clause bars from Congress:
Powers not vested by the people via the Constitution.
Congress debated the breadth of presidential powers in its first term. Its Decision of 1789, relying on Article II’s Vesting clause, vested in presidents an extraconstitutional power to displace appointees without the Senate’s advice or consent. The final vote was a tie broken by the president of the Senate, John Adams who as vice president hoped to be president himself after Washington.
The Myers Court found the Decision of 1789 lasted without a break for 73 years.
It lasted a year and a half.
The Bill of Rights was ratified December 15, 1791.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Setting aside Article V for the moment, a principle of legal construction is that a later law takes precedence over an earlier one unless the earlier one is clearer and more specific. The Legislative Powers, Necessary and Proper, Vesting, and Reserved Powers clauses are all general. If they were all statutes the later Amendment X would take precedence over the Vesting clause that appears to allow extraconstitutional presidential powers.
Had X said, “powers not delegated to the Congress by the Constitution, nor prohibited by it to the state legislatures,” the distinction between Congress’ powers and the president’s would remain. By reserving all powers not delegated to the United States by the Constitution, it also reserves all powers not textually delegated to the president. Both the United States legislative and executive powers are now required to be textual.
Including their Appointment powers.
And of course none were just statutes. They were clauses of a constitution. Amendment X amended the existing text, in accordance with Article V.
The Senate has as great a claim on inherent power as the president: None.
Amdt X read with We the People reserves inherence to us, to be either parceled out by vestitures in state constitutions or the US Constitution, or exercised by us united as a sovereign entity, or held in reserve indefinitely.
The Decision of 1789 was not a constitutional clause but a simple US-level statute. Article VI expresses the Constitution’s supremacy over all other law in the USA. Since Congress, not Article II, had granted the president power to displace appointees unilaterally, the Vesting clause as amended by Amdt X controls above the Decision of 1789.
Here is a factor that the two competing theories often seem to overlook but may matter deeply to the tax-paying public (if they think about even if only when forced to do so). The administrative state grew up in order to provide general services to all of us in recognition that "we" are the government and that "we" benefit from many things that we cannot do for ourselves nor buy on the open market. Many of these "things" need to be done by people who have a given level of knowledge and experience which together form their expertise at things like predicting the weather and carrying out public health research and administering large and complex projects. People simply will not take these jobs in large enough numbers if these jobs are "at will" employment. No one wants to be responsible for say, the medical care of our military veterans on 4-year rotations. If Congress - acting as our "elected representatives" - is not allowed to recognize this and protect our civil servants these jobs cannot properly get done and we will have no measure of self-governance at all.
Very well researched and argued, well worth the read.
Given that, the years from 1937-1952, another fifteen year period, gave the Democrats and the Administrative State a life. Whether that fitted with the Founders ideas is another question entirely. It was the equality of time and change in the Court that was considering and how much could be done in such a period.
Republican Presidents did govern for 20 of the 24 years from 1969-1993, but for all that time the Democrats held the House of Representatives, which, to put it mildly, stayed their hands quite well.
Just a different way of looking at the same lengths of time and the same time, for the later years.
What an absolute joke that the same conservative justices who held Joe Biden exceeded his authority by forgiving student loan debt will likely endorse many (if not all) of Trump's abuses of power.
I think Trump, with the acquiescence of Republicans in Congress, has adopted a "unitary federal government" theory (i.e., dictatorship) as opposed to merely a "unitary executive." In that theory, the President can ignore laws passed by Congress and court orders. Of course, he doesn't need subtle legal theories and justifications to assert power when no one will stop him.
Steve, thanks for the easy-to-undestand explainer.
So, there's lot of folks screaming 'illegal', illegal, illegal' (as if they don't know 'illegal' is a sick bird) when it comes to Elon Musk allegedly accessing confidential data on citizen's financial and health data, supposedly in contravention of existing law. If that is in fact happening, how does it stop if the screams of 'illegal' do not deter the purported behavior? Somebody files a lawsuit? Who sues? Where? What law(s) are violated? I don't see much on this in the MSM. Thanks. (Oh, and too bad you're not still in Texas where ICE is stopping elementary school buses in the Valley looking for 'criminals'.)
I'd not seen your "illegal" = "ill eagle" word play before ... good one!
Regarding your point about us citizens not understanding what is/is not legal, I recently wondered if Trump's folding DOGE into USDS (US Digital Service) was legal. I searched the web to learn how the US Digital Service - which now houses DOGE - was first created. I assumed it was by congressional legislation - nope! Was it created via executive order? I guess: https://www.federalregister.gov/documents/2012/06/01/2012-13470/building-a-21st-century-digital-government Basically, Obama created the USDS as a "White House startup." So, if our laws allow Obama to create the service as a "White House startup," I guess we can't complain when Trump folds another "White House startup" - DOGE - into it.
Unfortunately, most citizens aren't retired old ladies, so they don't have the time to pursue these questions. The so-called journalists in our midst would be using their press freedoms more effectively imo if they raised and answered questions such as these clearly and concisely. But nah - so much more interesting to just report on the mishegoss! [mishegaas? mishugaas - correct spelling is nearly as disputed as the constitutionality of administrative law]
What do you mean “if” it is in fact happening? Are you doubting the reporting of, e.g., Nathan Tankus, who has sources with knowledge of the situation who have confirmed that it has happened?
BREAKING THURSDAY 10 Minutes ago: Federal Judge Kollar-Koteelly STOPS Musk's raid on U.S Treasury data! Your Data.
Steve VLADEK, Call me at 510 303-9004 about your platform's Terms of Use & Misuse.
Are you really going to delete a Federal Court's Order directly related to your alleged concerns about democracy?
Steve, what is needed is a constitutional interpretation; “THE executive power” is not plain-meaning text. Scalia gave his own spin in Morrison; Chief Justice Rehnquist, also a former executive branch lawyer, did not agree with him. The constitution does not SAY “unchecked executive power” — and there is much evidence, in the federalist papers and elsewhere, that “unchecked” was not intended. Rather, Congress may provide “CHECKS and balances.” And the President has the textual constitutional duty to “execute” the laws Congress enacts, “faithfully.”
I agree: "the executive power" is about as nebulous as "the freedom of speech" and "press" in the First Amendment.
Eureka! Thanks to your clear and concise explanation, I finally am experiencing an inkling of a sense that I more fully understand "unitary executive" - a term that I've encountered repeatedly over the past decade but that mostly caused my eyes to roll back in their sockets. Very helpful here is your statement about "the federal bureaucracy ... accreting independent administrative authority delegated by Congress" and the tensions that arose from that accretion:
"[T]here 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....****"
Presidents don't make law; that's Congress's purview. I've always understood "take care that the laws be faithfully executed" as a requirement that the executive branch forthrightly implement all laws passed by Congress - legislators legislate; the executive executes. But now I better understand that the issue at hand is to what extent Congress can determine the structure, authority, and independence of executive-branch entities as it writes administrative law.
Also very helpful was your definition of principal v. inferior officers: "... Congress could protect “inferior” executive-branch officers ... 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." Your point about one v. two layers of independence helped clarify this.
I'm far from 'mastery' of these concepts, but believe that I can be a more informed citizen with a more nuanced response to Trump's predation. Trump is not a "wise and humane ruler[], sincerely attached to the principles of the Constitution." Thus, we mere mortals will face an onslaught of arguments about what is/is not legal. Because of your essay, I am better equipped to face that onslaught. Again, thank you!
Another great (though sobering) article. I have to slightly disagree about the Supreme Court not causing this mess, though not because of Trump v. United States (2024). I feel the unanimous decision in Trump v. Anderson was improper, as creating a ‘patchwork’ among different States is not a compelling argument, and neither is an assertion that Section 5 of the 14th Amendment is the exclusive mode of enforcing Section 3 (Disqualification Clause). It may occur rarely with Supreme Court decisions, but unanimity is no guarantee of correctness.
Justice Gorsuch chose the title, "A Republic, If You Can Keep It", for one of the books he wrote. He may not like Trump's indifference to that admonition of Ben Franklin. But, he and others on the Court, both current and recent, have great culpability by eroding the checks and balances both between the 3 branches and within the Executive.
I recently listened to an interview with historian Doris Kearns Goodwin, drawing parallels between Trump and the spoils system that was rampant during Andrew Jackson's presidency (and well afterward). If the courts and congressional Republicans fail to stand up to Trump in any meaningful way, the damage he is likely to cause may take generations to undo.
Have compared Trump to Andrew Jackson since his first election, it is amazing how few people have a historical frame of reference.
There is no limiting principle to unitary executive theory is there? Trump right now is asserting a strong form of the theory, one that goes way beyond what courts have been willing to countenance. But, if one person truly is the branch, then in a logical sense isn't Trump's assertion right? What I mean is that to the extent courts have limited Presidential authority, it has been by not buying in fully to the principle, right?
In combination with a Congress unwilling to assert its own authority, the unitary executive theory is madness.
Recommend U.S v Trump ( immunity decision, No. 23-939). CJ Roberts cites Art II S1, "The executive Power shall be vested in a President ..."
See especially pp. 7-10 of the opinion (citations omitted).
To SV's point, a key sentence from Roberts' opinion is "The President 'occupies a unique position in the constitutional scheme,' as 'the only person who alone composes a branch of Government' (p. 10). In this executive role, where the Constitution gives the President "conclusive and preclusive" authority, neither Congress nor the Court has a say, supporting the unitary executive position.
On the other hand, "not all of the President's official acts fall within his 'conclusive and preclusive authority" (p 9). "As J. Robert Jackson recognized... "the President sometimes 'acts pursuant to an express or implied authorization of Congress,' or in a 'zone of twilight' where he and Congress have concurrent authority" (p. 9).
And, "if the President claims authority to act but in fact exercises mere "individual will" and "authority without law," the courts may say so" (p. 8).
IMO, there is room for optimism.
Just Thank You for this, Steve. It is perfectly timed with my Con Law classes on Presidential Powers. Clearly laid out with a nice position touch.
Professor,
Please review the reporting from Nathan Tankus regarding Elon Musk and his team’s illegal infiltration of the Bureau of Fiscal Service, available here: https://www.crisesnotes.com/.
The community of legal scholars, law students, and practicing lawyers is large and powerful. To the extent our community can be mobilized to stop this immediate catastrophe, we should attempt to mobilize.
Thanks,
Thanks, an excellent essay.
Steve, I don’t know how many justices have known what I just realized.
Has President Trump extratextual powers, including executive orders and a unilateral power to fire?
Art II §1: “The executive power shall be vested in a president of the United States.
Art I §1: “All legislative powers herein granted shall be vested in a Congress…”
These are different. The text GRANTS Congress certain legislative powers, limited to those textually granted, but VESTS in the president one whole executive power. The clauses differ both in operation and in nature.
Of course, these branches differ both in operation and in nature.
*A member of Congress is elected. Congressional powers are representative. But we elect a temporary artificial constituency that exists for one day, elects the president and the vice president, then dissolves. The executive power is nonrepresentative.
*Nor are all powers held by Congress legislative, or all powers held by presidents executive. Congress’ nonlegislative powers include administering the United States internal sanctions (impeachment of any officer, expulsion or other sanction of their own members), and overseeing some actions of the state governments. Congress’ nonlegislative powers are vested elsewhere in the text, not granted or limited by Article I §1 that only addresses their legislative powers. The president’s nonexecutive powers include the head of state power, jointly with the Senate, and the civil commander in chief power, with the military and militias (both governed by Congress when not in action). And while the executive power is vested solely in the president, it is then divided into departments whose heads can hold sole power to appoint their inferior officers. To date only Congress has exercised its legislative and other powers, though the executive departments have regulatory arms whose acts must be ratified by Congress.
This and far more has been capably argued elsewhere.
Article II §2 vests in the president power to “nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be provided for by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.”
The Supreme Court refused to address this question until 1929, then in Myers v United States, 272 US 52 (1929) held in unmitigated favor of a unilateral presidential power to displace appointees. Myers remains the standard citation, not just for firing power but for all presidential powers not textually expressed. But the few statutes on firing passed before 1929 were either nuanced or vague. The Myers Court read each only one way, and erred gravely in finding each of these:
*The Vesting clause allows the president to displace officers without the Senate’s advice or consent.
*The Vesting clause allows the president a sole power to displace with or without the sole power to appoint.
*Where Congress vests the sole power to appoint inferior officers in the heads of departments, the Vesting clause allows the president to exercise it anyway.
*Congress can by statute vest a sole appointment power for superior officers.
Our analysis: The Court failed to apply the text most directly relevant.
Congress debated the breadth of presidential powers in its first term. Its Decision of 1789, relying on Article II’s Vesting clause, vested in presidents an extraconstitutional power to displace appointees without the Senate’s advice or consent. The final vote was a tie broken by the president of the Senate, John Adams who as vice president hoped to be president himself after Washington.
The Myers Court found the Decision of 1789 lasted without a break for 73 years.
It lasted a year and a half.
The Bill of Rights was ratified December 15, 1791.
Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Setting aside Article V for the moment, a principle of legal construction is that a later law takes precedence over an earlier one unless the earlier one is clearer and more specific. The Legislative Powers, Necessary and Proper, Vesting, and Reserved Powers clauses are all general. If they were all statutes the later Amendment X would take precedence over the Vesting clause that appears to allow extraconstitutional presidential powers.
Had X said, “powers not delegated to the Congress by the Constitution, nor prohibited by it to the state legislatures,” the distinction between Congress’ powers and the president’s would remain. By reserving all powers not delegated to the United States by the Constitution, it also reserves all powers not textually delegated to the president. Both the United States legislative and executive powers are now required to be textual. Including their Appointment powers.
And of course none were just statutes. They were clauses of a constitution. Amendment X amended the text in accordance with Article V.
Congress has as great a claim on inherent power as the president: None.
The Decision of 1789 was not a constitutional clause but a simple US-level statute. Article VI expresses the Constitution’s supremacy over all other law in the USA. Since only a statute, not Article II, had granted the president power to displace appointees unilaterally, the Vesting clause as amended by Amendment X controls above the Decision of 1789.
Once more, with feeling:
Amendment X amends the Vesting clause.
Presidents have no greater claim to extratextual powers than Congress or the US courts: None.
Article II §2 vests in the president power to Article II §2 vests in the president power to “nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be provided for by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.”
Has President Trump extratextual powers, including unilateral power to fire?
The Supreme Court refused to address this question until 1929, then in Myers v United States, 272 US 52 (1929) held in unmitigated favor of a unilateral presidential power to displace appointees. Myers remains the standard citation, not just for firing power but for all presidential powers not textually expressed.
But few statutes in our history addressed firing. The few passed before 1929 were either nuanced or vague. The Myers Court read each only one way. Myers erred gravely in finding any of these:
*The Vesting clause allows the president to displace officers without the Senate’s advice or consent; or
*The Vesting clause allows the president a sole power to displace with or without the sole power to appoint; or
*Where Congress vests the sole power to appoint inferior officers in the heads of departments, the Vesting clause allows the president to exercise it anyway; or
*Congress can by statute vest a sole appointment power for superior officers.
None is upheld by text. Nor is the text nuanced on these points. The Myers Court fails to apply the text most directly relevant to extraconstitutional presidential powers.
Art II §1: “The executive power shall be vested in a president of the United States.
Art I §1: “All legislative powers herein granted shall be vested in a Congress…”
These are different. They GRANT Congress certain legislative powers, limited to those textually granted, but VEST in the president one whole executive power. The clauses differ both in operation and in nature. The Myers Court makes much of this. But these branches differ both in operation and in nature.
A member of Congress is elected. Congressional powers are representative. But we elect a temporary artificial constituency that exists for one day, elects the president and the vice president, then dissolves. The executive power is nonrepresentative. Nor are all powers held by Congress legislative, or all powers held by presidents executive.
Congress’ nonlegislative powers include administering the United States internal sanctions (impeachment of any officer, expulsion or other sanction of their own members), and overseeing some actions of the state governments. Congress’ nonlegislative powers are vested elsewhere in the text, not granted or limited by Article I §1 that only addresses their legislative powers.
The president’s nonexecutive powers include the head of state power, jointly with the Senate, and the civil commander in chief power, with the military and militias (both governed by Congress when not in action). And while the executive power is vested solely in the president, it is then divided into departments whose heads can hold sole power to appoint their inferior officers. To date only Congress has exercised its legislative and other powers, though the executive departments have regulatory arms whose acts must be ratified by Congress.
This and far more has been capably argued elsewhere.
Our analysis will assume, solely for the purpose of argument, that the Vesting clause allows the president what the Legislative Powers clause bars from Congress:
Powers not vested by the people via the Constitution.
Congress debated the breadth of presidential powers in its first term. Its Decision of 1789, relying on Article II’s Vesting clause, vested in presidents an extraconstitutional power to displace appointees without the Senate’s advice or consent. The final vote was a tie broken by the president of the Senate, John Adams who as vice president hoped to be president himself after Washington.
The Myers Court found the Decision of 1789 lasted without a break for 73 years.
It lasted a year and a half.
The Bill of Rights was ratified December 15, 1791.
Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Setting aside Article V for the moment, a principle of legal construction is that a later law takes precedence over an earlier one unless the earlier one is clearer and more specific. The Legislative Powers, Necessary and Proper, Vesting, and Reserved Powers clauses are all general. If they were all statutes the later Amendment X would take precedence over the Vesting clause that appears to allow extraconstitutional presidential powers.
Had X said, “powers not delegated to the Congress by the Constitution, nor prohibited by it to the state legislatures,” the distinction between Congress’ powers and the president’s would remain. By reserving all powers not delegated to the United States by the Constitution, it also reserves all powers not textually delegated to the president. Both the United States legislative and executive powers are now required to be textual. Including their Appointment powers.
And of course none were just statutes. They were clauses of a constitution. Amendment X amended the existing text, in accordance with Article V.
Congress has as great a claim on inherent power as the president: None.
The Decision of 1789 was not a constitutional clause but a simple US-level statute. Article VI expresses the Constitution’s supremacy over all other law in the USA. Since Congress, not Article II, had granted the president power to displace appointees unilaterally, the Vesting clause as amended by Amdt X controls above the Decision of 1789.
Steve, I don't know how many Justices have known what I realized today. But here it is:
Article II §2 vests in the president power to
nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be provided for by law;
but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.
“at the pleasure of the president”
That phrase so beloved of the Maga echoes Great Britain’s “at the pleasure of the King,” and that is its undoing.
Has President Trump extratextual powers, including unilateral power to fire?
One representative case is AFL-CIO v Trump et al, (1:25-cv-00264, DDC), brought on behalf of civil servants.
The Supreme Court refused to address this question until 1929. Then Myers v United States, 272 US 52 (1929) held in unmitigated favor of a unilateral presidential power to displace appointees. Myers remains the standard citation, not just for firing power but for all presidential powers not textually expressed.
But few statutes in our history addressed firing. The few passed before 1929 were either nuanced or vague. But the Myers Court read each only one way. RepairRestoreSafeguard, Inc. might have enjoyed playing devil’s advocate, reading them all in the opposite permissible ways to learn how far Myers applies. But no need exists.
The Myers Court erred gravely in finding any of these:
The Vesting clause allows the president to displace officers without the Senate’s advice or consent; or
The Vesting clause allows the president a sole power to displace with or without the sole power to appoint; or
Where Congress vests the sole power to appoint inferior officers in the heads of departments, the Vesting clause allows the president to exercise it anyway; or
Congress can by statute vest a sole appointment power for superior officers.
None is upheld by text. Nor is the text nuanced on these points. The Myers Court fails to apply the text most directly relevant to extraconstitutional presidential powers.
Art II §1
The executive power shall be vested in a president of the United States.
Art I §1
All legislative powers herein granted shall be vested in a Congress…
These are different. They grant Congress certain legislative powers, limited to those textually granted, but vest in the president one whole executive power. The clauses differ both in operation - to grant is not to vest - and in nature. The Myers Court makes much of this.
But that could be due to the ways these branches differ both in operation and in nature.
A member of Congress is elected. Congressional powers are representative.
But we elect a temporary artificial constituency that exists for one day, elects the president and the vice president, then dissolves. The executive power is nonrepresentative.
Nor are all powers held by Congress legislative, or all powers held by presidents executive.
Congress’ nonlegislative powers include
administering the United States internal sanctions (impeachment of any officer, expulsion or other sanction of their own members)
overseeing some actions of the state governments
Congress’ nonlegislative powers are vested elsewhere in the text, not granted or limited by Article I §1 that only addresses their legislative powers.
The president’s nonexecutive powers include
the head of state power, jointly with the Senate,
the civil commander in chief power, with the military and militias (both governed by Congress when not in action).
And while the executive power is vested solely in the president, it is then divided into departments whose heads can hold sole power to appoint their inferior officers. To date only Congress has exercised its legislative and other powers, though the executive departments have regulatory arms whose acts must be ratified by Congress.
This and far more has been capably argued elsewhere.
The instant analysis will assume, solely for the purpose of argument, that the Vesting clause allows the president what the Legislative Powers clause bars from Congress:
Powers not vested by the people via the Constitution.
Congress debated the breadth of presidential powers in its first term. Its Decision of 1789, relying on Article II’s Vesting clause, vested in presidents an extraconstitutional power to displace appointees without the Senate’s advice or consent. The final vote was a tie broken by the president of the Senate, John Adams who as vice president hoped to be president himself after Washington.
The Myers Court found the Decision of 1789 lasted without a break for 73 years.
It lasted a year and a half.
The Bill of Rights was ratified December 15, 1791.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Setting aside Article V for the moment, a principle of legal construction is that a later law takes precedence over an earlier one unless the earlier one is clearer and more specific. The Legislative Powers, Necessary and Proper, Vesting, and Reserved Powers clauses are all general. If they were all statutes the later Amendment X would take precedence over the Vesting clause that appears to allow extraconstitutional presidential powers.
Had X said, “powers not delegated to the Congress by the Constitution, nor prohibited by it to the state legislatures,” the distinction between Congress’ powers and the president’s would remain. By reserving all powers not delegated to the United States by the Constitution, it also reserves all powers not textually delegated to the president. Both the United States legislative and executive powers are now required to be textual.
Including their Appointment powers.
And of course none were just statutes. They were clauses of a constitution. Amendment X amended the existing text, in accordance with Article V.
The Senate has as great a claim on inherent power as the president: None.
Amdt X read with We the People reserves inherence to us, to be either parceled out by vestitures in state constitutions or the US Constitution, or exercised by us united as a sovereign entity, or held in reserve indefinitely.
The Decision of 1789 was not a constitutional clause but a simple US-level statute. Article VI expresses the Constitution’s supremacy over all other law in the USA. Since Congress, not Article II, had granted the president power to displace appointees unilaterally, the Vesting clause as amended by Amdt X controls above the Decision of 1789.
Here is a factor that the two competing theories often seem to overlook but may matter deeply to the tax-paying public (if they think about even if only when forced to do so). The administrative state grew up in order to provide general services to all of us in recognition that "we" are the government and that "we" benefit from many things that we cannot do for ourselves nor buy on the open market. Many of these "things" need to be done by people who have a given level of knowledge and experience which together form their expertise at things like predicting the weather and carrying out public health research and administering large and complex projects. People simply will not take these jobs in large enough numbers if these jobs are "at will" employment. No one wants to be responsible for say, the medical care of our military veterans on 4-year rotations. If Congress - acting as our "elected representatives" - is not allowed to recognize this and protect our civil servants these jobs cannot properly get done and we will have no measure of self-governance at all.
Very well researched and argued, well worth the read.
Given that, the years from 1937-1952, another fifteen year period, gave the Democrats and the Administrative State a life. Whether that fitted with the Founders ideas is another question entirely. It was the equality of time and change in the Court that was considering and how much could be done in such a period.
Republican Presidents did govern for 20 of the 24 years from 1969-1993, but for all that time the Democrats held the House of Representatives, which, to put it mildly, stayed their hands quite well.
Just a different way of looking at the same lengths of time and the same time, for the later years.