Unitary executive theory

In American law, the unitary executive theory is a Constitutional law theory according to which the President of the United States has sole authority over the executive branch. ^[1] It is "an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House". ^[2] The theory often comes up in jurisprudential disagreements about the president's ability to remove employees within the executive branch; transparency and access to information; discretion over the implementation of new laws; and the ability to influence agencies' rule-making. ^[3] There is disagreement about the doctrine's strength and scope, with more expansive versions of the theory becoming the focus of modern political debate. These expansive versions are controversial for both constitutional and practical reasons. ^{[4] [5] [6]} Since the Reagan administration, the Supreme Court has embraced a stronger unitary executive, which has been championed primarily by its conservative justices, the Federalist Society, and the Heritage Foundation. ^{[7] [8] [9] [10]}

The theory is largely based on Section 1 of Article Two of the United States Constitution, ^[11] which vests "the executive Power" of the United States in the president. ^{[12] [13]} Critics debate over how much power the vesting clause gives a president, ^{[14] [15]} and emphasize other clauses in the Constitution that provide checks and balances on executive power. For instance, some argue that the Commander in Chief Clause would be rendered effectively redundant if the founders intended the wording to be interpreted as a unitary executive. ^[16] Others argue that even the King of Great Britain at the time of the founding did not have the unitary control that some proponents argue he had when justifying an expansion of presidential power. ^[17] In the 2020s, the Supreme Court has held that, regarding the powers granted by the vesting clause, "the entire 'executive Power' belongs to the President alone". ^{[18] [19]}

Since its inception, the President of the United States has exercised significant authority over the executive branch, with some exceptions, including independent agencies such as the Federal Reserve, and independent personnel such as special counsels. ^{[20] [ verification needed ]} These limits on unitary executive power can be created by the legislative branch via Congress passing legislation, or by the judicial branch via Supreme Court decisions. Since the founding of the country, positions independent of the executive have included Comptroller, Postmaster General, and the Sinking Fund Commission. ^[20] The Reagan administration, including the justices it appointed to the Supreme Court, was the first presidential administration to cite unitary executive theory. ^[21] It then entered public discourse with the George W. Bush administration and found a strong advocate in Donald Trump. ^[22] Presidents of both parties tend to view the idea that they should have more power more favorably when in office. ^[22]

Beyond disputing its constitutionality, ^{[23] [24] [25] [16]} common criticisms include the ideas that the theory could lead to poor outcomes, including more corruption and less qualified employees. ^{[26] [27] [28]} Some critics point to countries where similar changes to a more unitary executive have resulted in democratic backsliding, ^{[29] [30] [31] [32]} or to the vast majority of democracies (including U.S. states and local governments) that give their executive leader less power. ^{[33] [31] [34] [35]}

Terminology

The term "unitary executive" dates back to the Reagan administration, ^{[2] [36] [37] [38]} but supporters of the unitary executive theory, sometimes referred to as "unitarians", contend the principle dates to the founding. ^[39] There is no canonical interpretation of the theory, with different academics defining it differently. ^[40] Some distinguish between stronger and weaker versions; most contemporary definitions focus on one of the theory's stronger versions. Broadly speaking, strong versions of the theory hold that the President has control over all officials in the executive branch; a weak version holds that Congress can significantly limit the President's authority, despite residing in a separate branch of government. ^[41]

Theory

The unitary executive theory has sparked significant debate as to what the constitution says about presidential power. ^[42]

Vesting Clause

The Vesting Clause of Article II, perhaps the most cited clause in favor of a stronger executive, reads, "The executive Power [of the United States] shall be vested in a President of the United States of America." Some have suggested that interpreting the vesting clause is difficult and may have simply been an attempt by the founders to reject the idea of an executive council, which was widely discussed at the time, rather than advocating a strong executive. ^[43] Jed Handelsman Shugerman looks at the context of how the word "vest" was used before the constitution, finding that it may signify significantly less completeness in the power it gives than it seems today. ^[15] Other scholars maintain that the vesting clause is clear and that, "At a minimum, [the] Vesting Clause establishes an executive office to be occupied by an individual." ^[13] In 2020, the Supreme Court ruled 5–4 that, under the Vesting Clause, "the entire 'executive Power' belongs to the President alone". ^[44]

Take Care Clause

Proponents of unitary executive theory additionally argue that the Take Care Clause ("The President shall take care that the laws be faithfully executed") creates a "hierarchical, unified executive department under the direct control of the President". ^[45] Critics point out that the clause does not specify that the president should be the one to execute the laws, but to make sure that others are faithfully executing their responsibilities. Critics also point to "faithfully executed" as meaning to follow court rulings and legislative statutes regardless of whether a president agrees with them. ^[46]

Opinion Clause

Opponents of the theory point to the Opinion clause, which says only that a president may ask for the opinion in writing of a department officer about any subject related to their department, which seems superfluous if the president was supposed to have extensive power. ^[47]

King of Great Britain

Proponents have made claims about the powers wielded by the King of Great Britain (often inaccurately referred to in this context as the "King of England") at the time of the founding and their relationship to the founding intent of the executive branch to justify the theory. The actual powers held by the Crown are disputed by legal historians as "conventional wisdoms", as Parliament held significant power over appointments and dismissals of some executive personnel, while others served for life and were independent of the king. Law professor Daniel Birk argues there was no evidence that the king had such powers outside specific areas like foreign policy and the military, saying the king could not direct most law enforcement, regulatory or administrative officials. ^[17] Invoking the king as an argument for expanded executive power was first made by the Supreme Court in Myers v. United States (1926), a decision delivered by Chief Justice William Howard Taft, a former president of the United States. ^[17] Eric Nelson argued that some Founders wanted more checks on a president because unlike a hereditary monarch, their well-being was not as intrinsically tied to the nation. ^[48]

Discussion

According to law professors Lawrence Lessig and Cass Sunstein in 1994,^{[ needs update ]} "No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version." ^{[49] :8-9} In either a stronger or a weaker form, the theory would limit Congress's power to divest the president of control of the executive branch. The hypothetical "strongly unitary" theory posits stricter limits on Congress than the "weakly unitary" theory. ^{[49] [ page needed ]} But parts of the Constitution grant Congress extensive powers. Article I of the Constitution gives it the exclusive power to make laws, which the president then must execute, provided that those laws are constitutional. ^[46] Article I, Section 8, clause 18, known as the Necessary and Proper Clause, grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution all Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof". ^[50] The Constitution also grants Congress power "To make Rules for the Government and Regulation of the land and naval Forces." Any legitimate theory^{[ original research? ]} of the unitary executive must allow Congress to wield its constitutional powers while ensuring that the president can do the same.^{[ citation needed ]}

Most believers in the theory think that, "at a minimum, the President should be able to remove all executive-branch officers, including the heads of independent regulatory agencies, at any time and for any reason." ^[51] Proponents of a strong unitary theory argue that the president possesses all the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that Congress's power to remove executive agencies or officers from presidential control is limited. Thus, under the strongly unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power not controlled by the president. ^[45] But independent regulatory commissions have existed for at least a century, and removal protections for their commissioners were upheld by the Supreme Court in Humphrey's Executor v. United States (1935). Some interpret the unitary executive theory to mean that federal courts cannot adjudicate disputes between agencies, arguing it would violate the doctrine of separation of powers. ^[52]

Others have pointed to the indirect selection of the president as not designed to put a strong president into office. The framers expected measured analysis by specially chosen electors who would act to choose a safe presidential candidate, and if none could be found, rely on Congress to choose one, and potentially negotiate power. ^[53] More extreme forms of the theory have developed according to which the president's wishes may supersede the law. Former White House Counsel John Dean said: "In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters." ^[54] In 2019, law professor Ilya Somin argued that "no serious advocate of the theory claims that anything the president does is legal"—just within the powers vested in the executive branch. ^[55] There is disagreement about the doctrine's strength and scope. In 2008, Steven Calabresi and Christopher Yoo said the unitary executive theory ensured that "the federal government will execute the law in a consistent manner and in accordance with the president's wishes". ^[56] This stands in contrast to other scholarly literature, such as MacKenzie in 2008^{[ citation needed ]} and Crouch, Rozell, and Sollenberger in 2020, ^[57] that stresses that federal employees must faithfully execute the laws enacted according to the process the Constitution prescribes.

Background

Founding debate of one or multiple executives

The phrase "unitary executive" was discussed as early as the Philadelphia Convention in 1787, and referred only to having a single individual fill the office of president, as proposed in the Virginia Plan. The alternative was to have several executives or an executive council, as proposed in the New Jersey Plan and as promoted by Elbridge Gerry, Edmund Randolph, and George Mason. ^{[58] [59]} James Madison was a leading advocate of the unitary executive and successfully argued in favor of the president's power to remove administrative appointees under the Constitution in the Decision of 1789. Madison said in 1789, "if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws." He had reservations about removal power extending to the comptroller of the Treasury Department, as he believed that office would share both judicial and executive responsibilities. Other legislators, such as Theodore Sedgwick, Michael Jenifer Stone, and Egbert Benson argued that the role would primarily be executive and should fall under the president's power. Madison ultimately withdrew his proposal to exempt the comptroller from the president's removal power. ^{[60] [61] [62]}

In 1788, the pseudonymous letters of the Federal Farmer defended the proposed unitary executive, arguing that "a single man seems to be peculiarly well circumstanced to superintend the execution of laws with discernment and decision, with promptitude and uniformity." ^[63] In Federalist No. 77, Alexander Hamilton wrote with regard to the Senate and presidential appointments that "The consent of that body would be necessary to displace as well as to appoint". Hamilton's usage of "displace" has traditionally been thought to mean "removal", and thus a limit on presidential power. Other legal scholars have interpreted "displace" to mean replacement of an appointee with another, not removal itself. ^{[64] [65] [66]}

Judicial decisions

See also: Marbury v. Madison

In the 1926 case of Myers v. United States , the United States Supreme Court ruled that the president has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body.^{[ non-primary source needed ]} The court also wrote:

The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which article 2 of the Constitution evidently contemplated in vesting general executive power in the President alone. ^[67]

Subsequent cases such as Humphrey's Executor v. United States (presidential removal of certain kinds of officers), and Bowsher v. Synar (control of executive functions) have flexed the doctrine's reach back and forth. Justice Scalia in his solitary dissent in Morrison v. Olson argued for an unlimited presidential removal power of all persons exercising executive branch powers, which he argued included the independent counsel; the court disagreed, but later moved closer to Scalia's position in Edmond v. United States . ^[68] Many of the proponents clerked for Justice Scalia. ^[31]

In recent years, the Supreme Court has expressed more support for the theory. ^{[69] [70]} In Seila Law LLC v. Consumer Financial Protection Bureau and Collins v. Yellen , the Court held that some attempts to curtail presidential removal power of agencies with a single director violate the separation of powers. Justice Samuel Alito went so far as to write, "The Constitution prohibits even 'modest restrictions' on the President's power to remove the head of an agency with a single top officer." The Court reiterated that the only exceptions to the president's removal power were those precedents found in Humphrey's Executor and Morrison. ^[71] The four justices appointed by a Democratic president dissented in Seila, arguing that the constitution makes no such claims. ^{[72] [73]} Collins was a very similar case taken up the next year, and the precedent of Seila was applied to Collins in a 7−2 ruling. ^{[74] [75] [76]}

Growth of presidential powers

The power of the presidency has grown since the 1970s due to key events and to Congress or the Courts not being willing or able to rein in presidential power. ^[77] With strong incentives to grow their own power, presidents of both parties became natural advocates for the theory ^[22] and rarely gave up powers exercised by their predecessors. ^[37] Republican presidents, including Trump, did not follow through on promises to use unitary executive power to shrink government, instead opting to use the administration to advance their policies. ^[22]

The theory originated in conservative legal circles, most notably in the Federalist Society. ^[22] The Reagan administration took the advice in the Mandate for Leadership published by the Heritage Foundation to hire 5000 enthusiastic supporters of the Reagan-Bush campaign to fill the 5000 new political appointee positions created by the 1978 Civil Service Reform Act. ^[78] The administration also made use the Office of Information and Regulatory Affairs, signed into law by Jimmy Carter in 1980, to short-circuit any regulations the administration did not agree with. ^[78] The Reagan era is cited as a major catalyst in growing presidential power, ^{[37] [38]} with significant growth post-9/11 as conservatives have most readily embraced the idea of a unitary executive. ^{[36] [79]}

Dick Cheney and the George W. Bush administration supported the theory. ^[80] For example, Bush once wrote in a signing statement that he would, "construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." ^[81] Critics acknowledge that part of the president's duty is to "interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies"; at the same time, they accused Bush of overstepping that duty by his perceived willingness to overrule U.S. courts. ^[82] During his confirmation hearing to become an associate justice on the United States Supreme Court, Samuel Alito seemed to endorse a weaker version of the unitary executive theory. ^[83] Barack Obama campaigned against the theory but embraced some aspects of it after the 2010 midterm elections. ^[84]

Donald Trump exerted the greatest control over the executive during his presidency than any other modern president, often citing Article II of the Constitution. In 2019, he said, "I have an Article II, where I have the right to do whatever I want as president." ^{[85] [37] [4] [57]} Bill Barr notably supported the theory before his confirmation as attorney general in a 2018 memo criticizing the Russia probe. ^{[86] [87]} Project 2025 proposes using the theory as justification to give Trump or the next Republican president maximum control over the executive branch. ^[88] The Trump 2024 campaign platform includes an expansion of executive power grounded in this theory. ^[89] The 2024 Supreme Court ruling Trump v. United States could make the president even more powerful, with some interpreting it as an endorsement of the unitary executive theory. ^{[90] [91]}

Criticism

See also: Schedule F appointment § Response, and Project 2025 § Reactions and responses

Constitutional

Stephen Skowronek, John A. Dearborn, and Desmond King argue that the unitary executive theory is a constitutional nightmare that would cause disruption and consequences the founders hoped to avoid. ^[92] Loyola Law School professors Karl Manheim and Allan Ides write, "the separation among the branches is not and never was intended to be airtight" and point to the president's veto power as an example of the executive exercising legislative power. They also cite other examples of quasi-legislative and quasi-judicial power exercised by the executive branch as necessary elements of the administrative state, but contend that ultimately all administrative power belongs to Congress, not the President, and the only true "executive" powers are those explicitly described in the Constitution. ^[25] In this, Manheim and Ides follow in the footsteps of Lessig and Sunstein. ^{[49] [ page needed ]}

David J. Barron (now a federal judge) and Marty Lederman have criticized the unitary executive theory. They acknowledge that there is a compelling case for some form of a unitary executive within the armed forces, ^[93] but argue that the Constitution does not provide for an equally strong unitary executive outside the military context, and that the Commander in Chief Clause would be superfluous if the same kind of unitary presidential authority resulted from the general constitutional provision vesting executive power in the president. ^[16] The BBC has called the theory "controversial", ^[5] and The Guardian called it "contested" ^[94] and a "quasi legal doctrine". ^[23] In 2007, Norman Ornstein wrote in The Economist that an overwhelming majority of constitutional scholars and historians find the theory "laughable". ^[24]

Democracy

See also: Democratic backsliding in the United States § Unitary Executive Theory

Graham Dodds and Christopher Kelley worry about the constitutional implications of relegating the legislative branch to secondary status as well as the implications of the theory for democracy, especially under a Trump presidency. ^[29] Ian Millhiser called it a "worst-case scenario for liberal democracy". ^[95] Steven Greenhut argues the theory is a prescription for abuse and authoritarianism. ^[32] David Driesen argues that unitary control over the executive is a defining characteristic of autocracy. ^[31] The Economist wrote that "the vain and tyrannical whims of an emperor-president would emerge from the rubble." ^[28]

Unlike many other countries' modern constitutions, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution includes no comprehensive separate regime for emergencies. Some legal scholars believe the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined "executive power." ^[96] Congress has delegated at least 136 distinct statutory emergency powers to the president, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress; the rest are assumed by an executive declaration with no further congressional input. ^[97] Congressionally authorized emergency presidential powers are sweeping and dramatic, ranging from seizing control of the internet to declaring martial law. ^[96] This led The Atlantic to write that "the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power", ^[96] because, in the words of Justice Robert H. Jackson's dissent in Korematsu v. United States , the 1944 Supreme Court decision that upheld the internment of Japanese-Americans, each emergency power "lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need." ^[96]

Practical

Writing in Reason , Ilya Somin argued that concentrating more power in the president would make the president less accountable and run contrary to the ideals of the founders, who were concerned about the concentration of power. ^[26] Concern about the effects on the Justice Department's investigatorial independence and anti-corruption efforts is a recurring theme in criticism of the unitary executive theory. ^{[98] [99] [100] [28]}

Another concern revolves around the more practical implications of a brain drain of expertise in the federal government. ^[28] Ian Millhiser critiques weaker versions of the theory as giving presidents power to manipulate elections and interfere with technocratic aspects of government typically removed from politics, such as the Federal Reserve. ^[95] Some scholars oppose even the weaker theory of a unitary executive. Some favor a plural executive, such as in the many state governments that separately elect an attorney general. ^[101] Others favor a system in which Congress and the president share control over the bureaucracy. Both would likely require a constitutional amendment to add these checks on the executive that are common in other democracies.

Executive power in other democracies

Governors and the states

Unitary executive theory does not exist at the state or local level in the United States. In contrast to a single elected executive officer such as the president, plural executives exist in virtually all non-national governments, with states where executive officers such as lieutenant governor, attorney general, comptroller, secretary of state, and others, are elected independently of the state's governor. ^{[35] [34]} The executive branches of Texas and North Carolina, for example, maintain a plural executive whereby other elected executive officers can curb the chief executive's actions. The group of North Carolina executive officers, the North Carolina Council of State, wields considerable statutory power when approving the state government's monetary and property transactions. ^[102] The New York Constitution contained Take Care and Vesting Clauses "precisely mirroring the U.S. Constitution's clauses, but did not allow the Governor to either appoint or remove officers, vesting those functions in a council." ^[31]

Outside the United States

David Driesen argues that similar reforms led to significant democratic backsliding in Turkey, Poland and Hungary. ^[31] Susan Hennessey and Benjamin Wittes said that "the American presidency, in its unity, is profoundly dissimilar from nearly all other executives in democratic systems that have persisted over time. The founders of other democracies have, quite intentionally, decided differently from the founders of this one." ^[33]

In film

In the 2018 biographical film Vice, directed by Adam McKay, the unitary executive theory is explored in some detail and dramatized. ^[55] Vice President Dick Cheney, the film's subject, his lawyer David Addington, deputy assistant attorney general in the Office of Legal Counsel John Yoo, and Supreme Court justice Antonin Scalia figure prominently in the theory's development and promotion. ^[55] They brought it to the foreground of modern discussions on the topic of executive power beginning in 2001, continuing throughout the Bush administration and beyond. The application of this legal doctrine has implications for the prosecution of the War on Terror, the subsequent 2003 U.S. invasion of Iraq, the use of enhanced interrogation techniques at sites such as Guantanamo Bay and Abu Ghraib, and mass surveillance. ^[55]

See also

• Executive aggrandizement
• Führerprinzip
• Imperial presidency
• Independent state legislature theory
• Schedule F appointment

References

1. Cornell Law School Legal Information Institute Unitary Executive Theory (UET). Web. Retrieved September 24, 2024.
2. 1 2 "The 2024 Executive Power Survey – Unitary Executive". The New York Times. September 15, 2023. ISSN   0362-4331 . Retrieved July 19, 2024. Lawyers in the Reagan-era Justice Department developed the so-called unitary executive theory, an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House. Under stronger versions of this vision, Congress cannot fracture the president's control of federal executive power, such as by vesting the power to make certain decisions in an agency head even if the president orders the agency to make a different decision, or by limiting a president's ability to enforce his desires by removing any executive branch official – including the heads of 'independent' agencies – at will.
3. Dodds, Graham G.; Kelley, Christopher S. (2024), Akande, Adebowale (ed.), "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles", Leadership and Politics, Cham: Springer Nature Switzerland, p. 541, doi:10.1007/978-3-031-56415-4_22, ISBN   978-3-031-56414-7 , retrieved July 18, 2024
4. Dodds, Graham G. (2023). "Is the President a King? The Unitary Executive Theory and the Presidency of Donald J. Trump". In Akande, Adebowale (ed.). U.S. Democracy in Danger: The American Political System Under Assault. Springer Studies on Populism, Identity Politics and Social Justice. Cham: Springer Nature Switzerland. pp. 487–517. doi:10.1007/978-3-031-36099-2_21. ISBN   978-3-031-36099-2 . Retrieved July 12, 2024.
5. Wendling, Mike (July 7, 2024). "Project 2025: A wish list for a Trump presidency, explained". BBC. ...a controversial idea known as 'unitary executive theory'
6. Dodds, Graham G.; Kelley, Christopher S. (2024). "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles". In Akande, Adebowale (ed.). Leadership and Politics. Cham: Springer Nature Switzerland. p. 547. doi:10.1007/978-3-031-56415-4_22. ISBN   978-3-031-56414-7 . Retrieved July 18, 2024. Constitutionally, the unitary executive theory is not some long-established doctrine that is widely accepted by courts and other political actors. Far from it, the constitutional status of the theory is rather controversial.
7. Khardori, Ankush (August 12, 2024). "JD Vance's 'Constitutional Crisis' in the Making". Politico . Retrieved October 24, 2024.
8. Barrón-López, Laura (July 9, 2024). "A look at the Project 2025 plan to reshape government and Trump's links to its authors". PBS News. Retrieved August 15, 2024.
9. Savage, Charlie (July 4, 2024). "Legal Conservatives' Long Game: Amp Up Presidential Power but Kneecap Federal Agencies". The New York Times. ISSN   0362-4331 . Retrieved August 15, 2024.
10. Shapiro, Ari (July 2, 2024). "Immunity ruling continues a trend of expanding presidential power, scholar says". WFAE 90.7 - Charlotte's NPR News Source. Retrieved August 15, 2024. When the Supreme Court dramatically expanded presidential power yesterday, it continued a trend that's been going in one direction for a long time.
11. Dodds, Graham G.; Kelley, Christopher S. (2024). "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles". In Akande, Adebowale (ed.). Leadership and Politics. Cham: Springer Nature Switzerland. p. 540. doi:10.1007/978-3-031-56415-4_22. ISBN   978-3-031-56414-7 . Retrieved July 18, 2024. Unitarians fixate on the wording of Article II's 'Vesting' clause (versus the wording in Articles I and III), arguing that the president alone has all the executive power, which means any power that is executive in nature, even if it is not directly listed in the Constitution, belongs to the president
12. Sitaraman, Ganesh (2020). "The Political Economy of the Removal Power". Harvard Law Review. 134: 380.
13. Prakash, Saikrishna B.; Schroeder, Christopher H. "Interpretation and Debate: The Vesting Clause". National Constitution Center . Retrieved July 29, 2024.
14. Strauss, Peter L. (1984). "The Place of Agencies in Government". Columbia Law Review . 84: 598. doi:10.2307/1122501. JSTOR   1122501. Article II speaks directly only about elected officials, chiefly the President and his powers; it describes those powers in the most summary of terms. He is vested generally with 'the executive Power,' but what that is in the domestic context does not readily appear. Putting aside foreign relations and military authority-a very large part of the Presidency, but not the focus of this essay 89-he has the following powers and/or responsibilities.
15. Shugerman, Jed Handelsman (June 2022). "Vesting" (PDF). Stanford Law Review. 74. This Article offers a close textual reading of the word 'vesting' and an examination of its eighteenth-century usage and context, with the first survey of available dictionaries (from 1637 to 1846), colonial charters and state constitutions, the Constitutional Convention, and Ratification debates. Dictionaries defined 'vest' in terms of basic landed property rights, without reference to exclusivity or indefeasibility, and rarely with any reference to offices or powers. Other legal documents and digital collections of the Founders' papers indicate a range of usage, from 'fully vested' to 'simply vested' to 'partly vested,' so that the word 'vesting' by itself would signify less completeness. Meanwhile, words used in the Constitution or by the Framers to convey exclusivity or indefeasibility (for example, 'all,' 'exclusive,' 'sole,' 'alone,' or 'indefeasible') are missing from the Executive Vesting Clause. The ordinary meaning of 'vesting' was most likely a simple grant of powers without signifying the impermissibility of legislative conditions such as good-cause requirements for removals, undermining the unitary theory's originalist basis. On the other hand, the 'all' in the Legislative Vesting Clause may be more legally meaningful for nondelegation.
16. Barron, David; Lederman, Martin (2008). "The Commander in Chief at the Lowest Ebb: A Constitutional History". Harvard Law Review . 121. Cambridge, Massachusetts: Harvard University: 941. Archived from the original on January 24, 2009. there are those who would argue that the 'unitary executive' must have effective control over all Article II functions, in which case the superintendence guaranteed by the Commander in Chief Clause would not appear to do any additional work with respect to superintendence.
17. Birk, Daniel D. (January 2021). "Interrogating the Historical Basis for a Unitary Executive" (PDF). Stanford Law Review . 45 (6): 2177. ISSN   0038-9765. As this Article shows, however, the unitarians' claims about the original meaning of the executive power are largely unfounded. The ability to remove executive officials was not one of the prerogative powers of the British Crown. Moreover, the King neither appointed nor was able to remove all of his principal officers, many of whom held their offices for life or pursuant to other forms of tenure and who operated independent of the King's direction or control.
18. Seila Law LLC v. Consumer Fin. Prot. Bureau, 591U.S.197 , 2197(2021).
19. Sitaraman, Ganesh (2020). "The Political Economy of the Removal Power". Harvard Law Review. 134: 380.
20. Chabot, Christine Kexel (November 13, 2020). "Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies". Notre Dame Law Review .
21. Swan, Jonathan; Savage, Charlie; Haberman, Maggie (July 17, 2023). "Trump and Allies Forge Plans to Increase Presidential Power in 2025". The New York Times. ISSN   0362-4331 . Retrieved August 15, 2024. The Supreme Court in 1935 and 1988 upheld the power of Congress to shield some executive branch officials from being fired without cause. But after justices appointed by Republicans since Reagan took control, it has started to erode those precedents.
22. Skowronek, Stephen; Dearborn, John A.; King, Desmond S. (2021). Phantoms of a beleaguered republic: the deep state and the unitary executive (New ed.). New York, NY: Oxford University Press. p. 34. ISBN   978-0-19-754308-5. OCLC   1163936736.
23. Pilkington, Ed (June 7, 2024). "Trump plots capture of DoJ in renewed assault on US justice system". The Guardian. ISSN   0261-3077 . Retrieved July 11, 2024.
24. Ornstein, Norman (June 26, 2007). "Blog: Cheney's chutzpah". The Economist. ISSN   0013-0613 . Retrieved July 11, 2024.
25. Manheim, Karl; Ides, Allan (September 2006). "The Unitary Executive". Los Angeles Lawyer . SSRN   943046. Loyola-LA Legal Studies Paper No. 2006-39.
26. Somin, Ilya (May 3, 2018). "Rethinking the Unitary Executive". Reason.com. Retrieved July 20, 2024. UPDATE: I perhaps should have mentioned the oft-made argument that maintaining a unitary executive—even when it comes to powers beyond the scope of the original meaning of the Constitution—is desirable because it enhances political accountability. Even if true, this claim is about what is pragmatically desirable, not about the text and original meaning of the Constitution. But the claim is dubious even on its own terms. The greater the scope of executive power, the harder it is for rationally ignorant voters to keep track of more than a small fraction of it. Moreover, it becomes difficult to figure out how to weigh the president's performance in one area against what he does in others (assuming there is variation in quality, as will often be the case). It is therefore unlikely that concentrating a vast range of power in the hands of one person does much to enhance accountability.
27. Pilkington, Ed (June 7, 2024). "Trump plots capture of DoJ in renewed assault on US justice system". The Guardian. ISSN   0261-3077 . Retrieved July 19, 2024. 'That's what happens in authoritarian states – there is a semblance of a legal system, but it becomes useless,' she said. 'If that happens here it would be extremely troubling. We're not there yet. But I do think a second term could cause significant damage that may or may not be permanent.'
28. "How MAGA Republicans plan to make Donald Trump's second term count". The Economist. July 13, 2023. ISSN   0013-0613 . Retrieved July 19, 2024. One reason for the professionalisation of the bureaucracy in the 19th century was to provide the ship of state with enough ballast to keep sailing from one administration to the next ... The vain and tyrannical whims of an emperor-president would emerge from the rubble.
29. Dodds, Graham G.; Kelley, Christopher S. (2024). "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles". In Akande, Adebowale (ed.). Leadership and Politics. Cham: Springer Nature Switzerland. pp. 548, 550–551. doi:10.1007/978-3-031-56415-4_22. ISBN   978-3-031-56414-7 . Retrieved July 18, 2024. Turning devoted public servants into mere servants of their master and by privileging presidential desires over institutional expertise and independence, the theory risks turning the chief executive into an absolute monarch. Moreover, by enlarging the already considerable powers of the presidency, it threatens to upset the country's delicate inter-branch balance by relegating Congress and the judiciary to inferior status ... Trump showed us what happens when you support the use of such power with a person who appears to care little about the institution, the Constitution, or America's democracy. ... Thus the United States could see the unitary executive theory employed to significantly erode basic democratic principles.
30. Howell, William; Moe, Terry (November 1, 2021). "Analysis | Big government vastly expanded presidential power. Republicans use it to sabotage the administrative state". The Washington Post. ISSN   0190-8286 . Retrieved July 20, 2024. The unitary executive theory provides a veneer of legal authority for an authoritarian-inclined president to engage in a range of anti-democratic behaviors. By the time George W. Bush had shown what the unitary executive could justify – torturing prisoners, surveilling ordinary citizens, ignoring congressional statutes – constitutional scholars were already pointing to presidents as the chief threat to American democracy. With the rise of right-wing populism and the election of Trump in 2016, this threat was magnified by the accompanying transformation of the Republican Party itself, with its elites in Washington and around the country abetting Trump's authoritarian behavior in office ... The Republican Party is now an anti-democracy party, and its future presidents – empowered by the unitary executive theory – threaten the fundamentals of the U.S. democratic system ... Democrats have been complicit, but Republicans have pushed the trajectory beyond democratic bounds.
31. Driesen, David (November 1, 2020). "The Unitary Executive Theory in Comparative Context". UC Law Journal . 72 (1): 1. ISSN   0017-8322.
32. Greenhut, Steven (June 28, 2024). "Project 2025: The Heritage Foundation's plan to embrace bigger government during Trump's second term". Reason . Retrieved July 11, 2024. But implementing what critics call 'unitary executive theory'—i.e., putting all aspects of the federal government under the control of the president—is a prescription for authoritarianism and abuse.
33. Hennessey, Susan; Wittes, Benjamin (January 21, 2020). "The Disintegration of the American Presidency". The Atlantic. Retrieved July 20, 2024. But the American system gets sticky when you contemplate vesting the executive power in one person who cannot be easily removed when that person is as mercurial and peculiar as Trump. In such situations, the structure can start to seem downright reckless. In concentrating power so that this person directs the federal government to do things—and in making this person exceptionally difficult to depose for a protracted period of time—one has to have a certain amount of confidence in that person's intentions and abilities.
34. Gersen, Jacob; Berry, Christopher R. (March 2008). "The Unbundled Executive" (none). University of Chicago. pp. 10–11. SSRN   1113543. University of Chicago Public Law & Legal Theory Working Paper No. 214. Indeed, partial unbundling of executive authority is the norm rather than an exception in virtually all levels of non-national government units in the United States, of which there are more than 80,000. Authority that the governor or mayor would otherwise exercise is frequently given to a specific state or local officer. Often these officers are directly elected by the public. Other times they are elected by the legislature; other times still, they are appointed by another state official. These arrangements are only approximations of the unbundled executive ideal because they there is residual responsibility or authority for the policy in the general purpose executive ... The average number of elected executive offices per state was 6.7 in 2002 ...
35. Berry, Christopher R.; Gersen, Jacob E. (2008). "The Unbundled Executive". The University of Chicago Law Review . 75 (4): 1399–1400. ISSN   0041-9494. JSTOR   27653959.
36. Rosen, Jeffrey (July 2, 2024). "Immunity ruling continues a trend of expanding presidential power, scholar says". All Things Considered . NPR. Retrieved October 24, 2024.
37. Thunberg, Michael E. (December 1, 2021). "The Unitary Executive Theory: A Danger to Constitutional Government". Political Science Quarterly. 136 (4): 770–771. doi:10.1002/polq.13274. ISSN   0032-3195.
38. Mosley, Tonya (December 14, 2023). "Why a second Trump administration may be more radical than the first". Fresh Air on NPR.
39. Dodds, Graham G.; Kelley, Christopher S. (2024). "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles". In Akande, Adebowale (ed.). Leadership and Politics. Cham: Springer Nature Switzerland. p. 540. doi:10.1007/978-3-031-56415-4_22. ISBN   978-3-031-56414-7 . Retrieved July 18, 2024. The term 'unitary executive' dates to the 1980s, but unitarians contend that the idea goes back to the founding era.
40. Dodds, Graham G.; Kelley, Christopher S. (2024). "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles". In Akande, Adebowale (ed.). Leadership and Politics. Cham: Springer Nature Switzerland. p. 539. doi:10.1007/978-3-031-56415-4_22. ISBN   978-3-031-56414-7 . Retrieved July 29, 2024. There is no one canonical account of the unitary executive theory, though various academics have provided their own characterizations of it. (See Calabresi and Yoo (2008), Barilleaux and Kelley (2010), Dodds (2019), Crouch et al. (2020), and Skowronek et al. (2021).)
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58. Ketchum, Ralph, ed. (1986). The Anti-Federalist Papers and the Constitutional Convention Debates. Signet Classic. p. 67. Mr. [James] Wilson entered into a contrast of the principal points of the two plans [i.e. the Virginia Plan and the New Jersey Plan] ... These were ... A single Executive Magistrate is at the head of the one—a plurality is held out in the other.
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68. Calabresi, Steven & Lawson, Gary (2007). "The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia" (PDF). Columbia Law Review . 107: 1002–1047. Archived from the original (PDF) on March 6, 2009.
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71. Adler, Jonathan (June 29, 2020). "With Chief in Charge, SCOTUS Strikes Down Louisiana Abortion Law and Eliminates CFPB Independence". Reason . Archived from the original on June 29, 2020. Retrieved August 5, 2024.
72. Sitaraman, Ganesh (2020). "The Political Economy of the Removal Power" (PDF). Harvard Law Review. 134: 380. Justice Kagan dissented from the constitutional analysis, along with the three other liberal Justices. In an opinion filled with sharp, cutting language, Justice Kagan protested that there was nothing neutral about the majority's reasoning or its unitary executive theory of the separation of powers. She systematically argued that 'constitutional text, history, and precedent invalidate the majority's thesis.' Justice Kagan even accused the majority of 'gerrymander[ing]' their 'made up' rule to strike down the CFPB's independent structure. For a separation of powers case, this was about as bloody a fight as it gets.
73. Millhiser, Ian (June 29, 2020). "The Supreme Court's big decision on the CFPB and the "unitary executive," explained". Vox. Retrieved August 5, 2024.
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79. Krotoszynski, Ronald (December 10, 2020). "The Conservative Idea That Would Let Biden Seize Control of Washington". Politico.
80. Johnsen, Dawn (April 2008). "What's a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses" (PDF). Boston University Law Review . 88: 395. On 363 occasions, President Bush objected to provisions that he found might conflict with the president's constitutional authority 'to supervise the unitary executive branch.'
81. Lazarus, Edward (January 5, 2006). "How Much Authority Does the President Possess When He Is Acting as 'Commander in Chief'? Evaluating President Bush's Claims Against a Key Supreme Court Executive Power Precedent". FindLaw. That signed statement shows, in microcosm, how the President sees the separation of powers: The President, in his view of the world, can interpret away constraints on his power, such as those in the McCain Amendment, or FISA before it. And the courts can hardly question his dubious 'interpretations' even if they gut the very statutes they construe: After all, there are 'constitutional limitations on the judicial power'—though not, apparently, on the power of the executive.^{[ dead link ]}
82. Van Bergen, Jennifer (January 9, 2006). "The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State?". Findlaw . In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution. ...
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85. Swan, Jonathan; Savage, Charlie; Maggie, Haberman (July 17, 2023). "Trump and Allies Forge Plans to Increase Presidential Power in 2025". The New York Times . Retrieved December 6, 2023.
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88. Wrona, Aleksandra; Nur, Ibrahim (July 11, 2024). "The Facts About Project 2025: The Pro-Trump Proposal To 'Reshape America'". Snopes. Retrieved July 19, 2024. Project 2025 authors built their proposals on an idea popular during former President Ronald Reagan's time: the 'unitary executive theory.'...Overall, critics including legal experts and former government employees have zeroed in on Project 2025's goal to give the executive branch more power, describing it as a precursor to authoritarianism.
89. Swan, Jonathan; Savage, Charlie; Maggie, Haberman (July 17, 2023). "Trump and Allies Forge Plans to Increase Presidential Power in 2025". The New York Times . Retrieved December 6, 2023.
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91. Tucker, Eric (July 2, 2024). "Supreme Court opinion conferring broad immunity could embolden Trump as he seeks to return to power". Associated Press. 'This is a full-throated endorsement of the unitary executive theory' in a dramatic way, said Cornell University law professor Michael Dorf, referring to the theory that the U.S. Constitution gives the president expansive control over the government's executive branch.
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Further reading

• Skowronek, Stephen; Dearborn, John A. & King, Desmond (2021). Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive. Oxford University Press. ISBN   978-0-19-754308-5.
• Barilleaux, Ryan J. & Kelley, Christopher S., eds. (2010). The Unitary Executive and the Modern Presidency. Texas A&M University Press. ISBN   978-1-60344-190-2. Essays by presidential scholars on the origins, history, use, and future of the unitary executive theory, with particular attention to the presidency of George W. Bush.
• Percival, Robert V. (2001). "Presidential Management of the Administrative State: The Not-So-Unitary Executive". Duke Law Journal. 51 (3): 963–1013. doi:10.2307/1373182. JSTOR   1373182.

External links

• Overseer or "The Decider"? An American President In Administrative Law by Peter L. Strauss, lecture on the history of the unitary executive theory