President Trump's First Hundred Days and the Unitary Executive Theory

Mark Kende's illuminating post on Donald Trump and the Royal American Presidency highlights some of the ways in which President Trump is, in Professor Kende's words, "act[ing] above the law." Kende opens with a discussion of Trump v. United States, which extended absolute immunity from criminal prosecution to presidents for the exercise of their core constitutional powers and a broad presumptive immunity for remaining official acts (i.e., for official acts that fall outside the President's core constitutional powers). Professor Kende notes that Justices Sotomayor and Jackson used the word "king" in their dissents and argues that current events (sadly) have vindicated these dissenters' position. President Trump, Kende concludes, is acting as though he is "almost invincible." 

Professor Kende points out correctly that our Constitution prohibits royalty, but the President's supporters like to justify his broad assertion of power by pointing to the unitary executive theory, which posits that the President enjoys complete control over the executive branch. (Numerous scholarly articles have elaborated on and defended this theory.) The theory arises most often in cases involving the President's power to remove officers within the executive branch. The Roberts Court has embraced this theory, invalidating various sorts of tenure protection Congress had designed to insulate independent agency officials from direct presidential control. The Roberts Court's reasoning, in a nutshell, was that because Article II vests ALL executive power in the President, efforts to insulate executive branch officials from presidential control intruded on the President's constitutional prerogatives. 

Critics have attacked the unitary executive theory on various grounds. They point out that the theory plays fast and loose with the text of Article II. Chief Justice Roberts in Seila Law v. CFPB, wrote: “Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’” ​But Article II doesn't actually use the word "all" (unlike Article I, Section 1, which does vest "all" legislative powers in Congress). This textual omission doesn't necessarily defeat the unitary executive, but it does suggest that the Chief Justice's textual argument might not carry as much weight as he says it does.

There are historical problems with the theory, too. For one, the theory is at odds with longstanding historical practices. Congress has long assumed that it could insulate from presidential control certain independent agencies like the Federal Reserve and the Federal Trade Commission. Until the Roberts Court, the Supreme Court (usually, but not always) upheld for-cause removal restrictions that protected officers at independent agencies from presidential pressure.

Neither does founding-era history uniformly support the Court's current infatuation with the unitary executive. From an original-intentions perspective, delegates at the Constitutional Convention were cognizant that either too weak or too powerful an executive could create serious problems. One of the reasons Article II is so sparse is that the framers were unsure how to thread that needle (and they also didn't want to insult George Washington, who presided over the Convention and whom everyone expected would become the nation's first president). To be sure, the lack of a chief executive under the Articles of Confederation was among the framers' concerns. In light of that serious deficiency, the framers certainly wanted an executive that could provide the new national government with more energy--but they also wanted checks on that more energetic executive.

Nor do original practices clearly support the unitary executive. In the late 18th century, the British Crown did not enjoy the power to remove executive officers, and early Congresses repeatedly insulated various executive officers from presidential removal. While original practices do not necessarily elucidate original public meaning, it is nevertheless striking that the Chief Justice's theory is at odds with these early practices. 

Perhaps the most powerful argument against the unitary executive, though, comes not from text or history but current events, such as those Professor Kende addresses. Since his inauguration just over 100 days ago, President Trump has taken dramatic steps to seize control over the executive branch. These actions have had far-reaching impact. He has repeatedly suggested removing Federal Reserve Chair Jerome Powell, rattling financial markets. (President Trump has since backed down, claiming he does not intend to fire Powell.) He has directed his Department of Justice to investigate former officials who criticized him. He has sharply reduced the workforce in several federal agencies, effectively eviscerating several Congressionally created agencies. He has threatened to withhold federal funding from universities to suppress particular viewpoints. In a series of Executive Orders, he has punished lawyers and law firms who hire lawyers or represent clients he doesn't like. And, cognizant that the judiciary cannot enforce its own decisions without assistance from the executive branch, his administration has also refused to fully comply with court rulings.

Of course, the unitary executive is not all that is at stake in these cases; many of the administration's actions raise numerous legal questions. (For an excellent and far more comprehensive discussion of these questions, see Professor Dorf's "Wait, Can He Actually Do That?" series.) In a looser sense, though, the unitary executive theory has helped enable these actions insofar as they have signaled that the President's power, at least as it relates to other members of the executive branch, is absolute. In an era when Congress rarely checks a president of its own party and when the President has displayed unusual contempt for judges, the President under the unitary executive theory has vast powers.

Indeed, the Supreme Court's Trump immunity decision helped pave the way for this absolutist vision of presidential power--and not because it effectively insulated Donald Trump from prosecution. Having decided that presidents get absolute immunity for actions falling within their core Article II powers, "at least presumptive immunity" for other official acts "within the outer perimeter of his official responsibility," and no immunity for unofficial acts, the Court then needed to decide how to categorize the various allegations against President Trump. The Court punted most of the counts back to the lower court. (At the time, this meant that there would be no trial before the November 2024 presidential election. Donald Trump's victory in that election effectively ended the case.) The Court, however, did resolve one of the counts involving President Trump's alleged efforts to pressure the Department of Justice to "conduct sham election crime investigations" in an effort to change the election outcome. Drawing on the unitary executive theory, the Court held that the President's conversations with DOJ fall within the President's core executive powers. Because "the Constitution vests the entirety of the executive power in the President," the Court reasoned that the President enjoys exclusive authority over DOJ's investigative and prosecutorial function and was therefore "absolutely immune from for the alleged conduct involving his discussions with Justice Department officials."

To the extent the Supreme Court found the President absolutely immune even if he directs his DOJ to break the law, it has helped enable (albeit indirectly) the chaos of the current administration. It also helped enable attacks on the rule of law. If the President has complete control over the entire executive branch, he can more easily wield the executive's prosecutorial and investigative powers to go after people who criticize him, punish lawyers he doesn't like, and flout judicial rulings against his administration. The unitary executive theory does not cause such attacks on the rule of law, but it does help enable them.

We should therefore all ask the question whether the consequences of the unitary executive are worth it. The President's ardent MAGA supporters, no doubt, see the President's vast powers as a feature, not a bug, of the theory. But many observers, even ones who may be sympathetic to conservative policy priorities, realize that a President with such unfettered power is a dangerous step towards autocracy. Even President Trump's staunchest supporters should realize that this kind of power in the hands of their political opponents could be very dangerous to them and their interests. All Americans have an interest in protecting against autocracy.

One lesson from Trump's first 100 days is that in the hands of the wrong person, the powers of the unitary executive can threaten economic and political stability, as well as the rule of law. A genuine question, though, is whether these events will color how the Supreme Court sees the unitary executive.  Phrased differently, might supporters of the unitary executive theory change their position if they believe that that theory has played a role in unleashing unprecedented chaos and lawlessness?  The question is hardly hypothetical; the Court has before it this term a case about the President's removal powers and, implicitly, the scope of the unitary executive theory.

Defenders of the unitary executive theory might respond to these sorts of criticisms in a few ways. For example, some might argue that even if President Trump has violated the law, he did so because of his own psychological make-up and political style--not because of some abstract constitutional theory. Moreover, they might add that a consequentialist critique of the unitary executive ought also acknowledge the theory's benefits. Without the unitary executive, presidents too often can be thwarted by the bureaucracy of their own administrations ("the deep state," in Trump's parlance). Even important thinkers on the left recently have concluded that it is just too difficult for government and private industry to get things done in this country and that the complicated federal bureaucracy (along with a vast regulatory web) bears some of the blame. Defenders of the unitary executive might add that the nation has but one public official elected by a national constituency and that it does not make sense to allow officers beneath that official to thwart his agenda.  In fairness, there is something to these concerns, but they do not respond to the most fundamental critique, which is that, in the wrong hands, the unitary executive theory can grease the path to autocracy. 

Might some of the Supreme Court's conservative Justices--those who have traditionally embraced the unitary executive theory--share these concerns, or would they consider fears about autocracy mere liberal hysteria? I don't know, though I suspect the Republican-appointed Justices are not in full agreement on how to view current events.  Assuming that at least some of those Justices are concerned about current events, will they be flexible-minded enough to rethink the unitary executive theory?  

One possibility might be that current events might prompt some of the Justices to think twice about overruling Humphrey's Executor v. United States, a 1935 decision that upheld Congress's power to insulate some executive officers from direct presidential removal, provided that the relevant agencies exercise some quasi-legislative and/or quasi-judicial function (which many agencies do). Even if the Court does not backtrack on any of its recent decisions narrowing Humphrey's Executor and granting the President broad authority to remove executive officers, the recent chaos plausibly could discourage them from pushing that doctrine to its logical conclusion. As Professor Vladeck has pointed out, "the justices are (understandably) wary about handing down a ruling that would allow any President, and perhaps this one in particular, to exercise direct control over U.S. monetary policy by controlling who sits on the Federal Reserve Board." Given serious market jitters when President Trump just talked about removing Jerome Powell, the Justices might conclude that giving the President the power to actually remove him could unleash economic chaos. For some of the Justices, that might be a bridge too far. 

As a skeptic of the unitary executive theory to begin with, I would hope this more pragmatic approach would win the day. I also tend to agree with Professor Vladeck that the Court may be reluctant to threaten the independence of the Fed. On the other hand, the Court in Trump v. United States embraced a very broad theory of the unitary executive, even though the chaotic consequences were foreseeable. In July 2024 when the Court handed down that decision, it was not improbable at all that Donald Trump would win the November presidential election. Nor was it improbable that a victorious Trump would wield executive power in ways that threatened stability and the rule of law. Of course, most observers did not anticipate quite the scale and scope of Trump's first 100 days, but something along those lines was certainly plausible.  

And yet the Court in Trump v. United States doubled down on the unitary executive, granting the President absolute immunity even when he allegedly orders executive branch officials to take actions that threaten democracy itself.  The Court said it was concerned about presidents prosecuting their predecessors as a matter of course, but it also had to know that its theory of the unitary executive could, in unscrupulous hands, encourage the executive branch to (charitably put) push legal boundaries in unprecedented ways. The fact that the Court created such a broad presidential immunity from criminal liability (at least partially) out of the unitary executive theory even when it had to be aware of the risks involved makes it difficult to predict how the Justices will think about these and related issues over the coming months and years.  

 --Eric Berger