Unitary executive theory

[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.

[41] The theory is often advanced by proponents in debates arguing for more presidential power when it comes to hiring and firing members of the executive branch, including historically independent administrative law judges,[42] prosecutors (like special counsels) and inspectors general.

[44] 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.

[51] 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.

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.

[48] 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.

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.

"[58] 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.

[60] This stands in contrast to other scholarly literature, such as MacKenzie in 2008[citation needed] and Crouch, Rozell, and Sollenberger in 2020,[61] 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.

[62][63] 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.

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.

[51] Prosecutorial powers have never been wielded solely by the president either at the time of the founding or since, but is instead a relatively new idea increasingly embraced by the conservative majority on the Supreme Court.

[71]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 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."

[36] 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.

[20] 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.

[82] The Reagan era is cited as a major catalyst in growing presidential power,[36][37] with significant growth post-9/11 as conservatives have most readily embraced the idea of a unitary executive.

[86] 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.

[93] The 2024 Supreme Court ruling in Trump v. United States could make the president even more powerful, with some interpreting it as an endorsement of the unitary executive theory.

[94][95] 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.

[101] Congressionally authorized emergency presidential powers are sweeping and dramatic, ranging from seizing control of the internet to declaring martial law.

[25] 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.

[27] 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.

[30] 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.

[59] 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.

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.