Unitary executive theory

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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]}

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.

The unitary executive theory has sparked significant debate as to what the constitution says about presidential power.^[41]

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.^[42] 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".^[43]

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".^[44] 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.^[45]

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.^[46]

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.^[47]

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."^[48]: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.^{[48][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.^[45] 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".^[49] 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."^[50] 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.^[44] 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.^[51]

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.^[52] 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."^[53] 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.^[54] 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".^[55] This stands in contrast to other scholarly literature, such as MacKenzie in 2008^{[citation needed]} and Crouch, Rozell, and Sollenberger in 2020,^[56] that stresses that federal employees must faithfully execute the laws enacted according to the process the Constitution prescribes.

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.^[57][58] 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.^[59][60][61]

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."^[62] 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.^[63][64][65]

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.^[66]

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.^[67] Many of the proponents clerked for Justice Scalia.^[31]

In recent years, the Supreme Court has expressed more support for the theory.^[68][69] 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.^[70] The four justices appointed by a Democratic president dissented in Seila, arguing that the constitution makes no such claims.^[71][72] 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.^[73][74][75]

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.^[76] 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.^[77] 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.^[77] 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][78]

Dick Cheney and the George W. Bush administration supported the theory.^[79] 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."^[80] 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.^[81] 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.^[82] Barack Obama campaigned against the theory but embraced some aspects of it after the 2010 midterm elections.^[83]

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."^{[84][37][4][56]} Bill Barr notably supported the theory before his confirmation as attorney general in a 2018 memo criticizing the Russia probe.^[85][86] Project 2025 proposes using the theory as justification to give Trump or the next Republican president maximum control over the executive branch.^[87] The Trump 2024 campaign platform includes an expansion of executive power grounded in this theory.^[88] 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.^[89][90]

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.^[91] 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.^{[48][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,^[92] 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"^[93] 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]

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".^[94] 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."^[95] 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.^[96] Congressionally authorized emergency presidential powers are sweeping and dramatic, ranging from seizing control of the internet to declaring martial law.^[95] This led The Atlantic to write that "the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power",^[95] 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."^[95]

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.^{[97][98][99][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.^[94] 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.^[100] 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.

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.^[101] 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]

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 the 2018 biographical film Vice, directed by Adam McKay, the unitary executive theory is explored in some detail and dramatized.^[54] 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.^[54] 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.^[54]

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

• 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.

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