Unitary executive theory

The unitary executive theory is "an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House."

Advocates of the theory focus interepretations of greater executive power on Section 1 of Article Two of the United States Constitution. However, critics have argued that this provision must be balanced with the broader checks and balances within the Constitution and thus limits a more unitary executive. Traditionally, 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. 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 and interpretation of the law. Since the founding of the country, positions independent of the executive have included Comptroller, Postmaster General and the Sinking Fund Commission. Presidential administrations that cited the unitary executive theory started with the Reagan administration, entered the public discourse with the George W. Bush administration and grew again during and after the Trump administration.

The concept often comes up in 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 rulemaking by agencies. The theory is not long-established or widely accepted, but is rather controversial. Beyond disputing its constitutionality,  common criticisms argue that the theory it leads to poor outcomes and undermines democracy. A few critics point to other places where this has been tried and resulted in democratic backsliding or avoided altogether with, in their view, positive results, such as state and local governments that diffuse executive power more widely.

Terminology
The term "unitary executive" dates back to the Reagan administration,   though supporters of the unitary executive theory, sometimes referred to as "unitarians," contend it goes back to the founding.

Theory
The Vesting Clause of Article II provides, "The executive Power [of the United States] shall be vested in a President of the United States of America." Proponents of the unitary executive theory argue that this language, along with 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." 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. Opponents also point to the Opinion clause, which states only that a President may ask for the opinion in writing of what a Department officer thinks about any subject related to their department.

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." Proponents of a strong unitary theory argue that the president possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that the power of Congress 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. However, 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.

Proponents draw on claims about the powers wielded by the King of England and their relationship to the founding intent of the executive branch to justify the theory. However, the actual powers held by the Crown are disputed by legal historians as possible "conventional wisdoms" as parliament held significant power over appointments and dismissals of some executive personnel at the time. 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. Others have argued that the founding was an explicit rejection of monarchy and find the premise of looking at the powers held by a King objectionable. Eric Nelson argued that some Founders wanted more checks on a president because unlike a hereditary monarch, their wellbeing was not as intrinsically tied to the nation.

More extreme forms of the theory have developed in which the president’s wishes exceed the law. Former White House Counsel John Dean explains: "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." Law Professor Ilya Somin argued in 2019 that no serious advocate of the theory claims that anything the president does is legal - just within the powers vested in the executive branch.

According to law professors Lawrence Lessig and Cass Sunstein in 1994, "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." :8-9 In either a stronger or a weaker form, the theory would limit the power of Congress 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. Parts of the Constitution, however, grant extensive powers to Congress. Article I of the Constitution gives Congress the exclusive power to make laws, which the president then must execute, provided that those laws are constitutional. Article I, Section 8, clause 18 of the Constitution 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". The Constitution also grants Congress power "To make Rules for the Government and Regulation of the land and naval Forces." Any legitimate theory of the unitary executive must allow Congress to wield its constitutional powers while ensuring that the president can do the same.

There is disagreement about the strength and scope of the doctrine. In 2008, Steven Calabresi and Christopher Yoo described the unitary executive theory as ensuring "the federal government will execute the law in a consistent manner and in accordance with the president’s wishes." This stands in contrast to other scholarly literature, such as MacKenzie in 2008 and Crouch, Rozell, and Sollenberger in 2020, that stress the fact that federal employees have to faithfully execute the laws enacted according to the process prescribed in the U.S. Constitution.

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.

Some founders in support of limits on executive power include James Madison, who wanted federal officers to be independent of the President, and Alexander Hamilton, who initially hoped that the Senate would be required to consent before a president could remove a senior branch official.

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."

Judicial decisions
In the 1926 case of Myers v. United States, the United States Supreme Court decided 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. 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."

Subsequent cases such as Humphrey's Executor v. United States (presidential removal of certain kinds of officers), United States v. Nixon (executive privilege), 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.

Growth of presidential powers
The power of the presidency has grown slowly over the decades due to key events and to Congress or the Courts not being willing to rein in presidential power. In addition, presidents rarely give up powers exercised by their predecessors.

The Reagan administration took the advice in the Mandate for Leadership 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. 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. The Reagan era is cited as a major catalyst in growing presidential power, with significant growth post-9/11 as conservatives have most readily embraced the idea of a unitary executive.

Use in the Clinton administration was criticized by Elena Kagan in 2001.

Dick Cheney and the George W. Bush administration supported the theory. 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." 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," but critics accused Bush of overstepping that duty by his perceived willingness to overrule US courts. 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.

Barack Obama campaigned loudly against the theory, but embraced some aspects of it after the 2010 midterm elections.

Donald Trump exerted the greatest control over the executive during his Presidency than any other modern president, often citing Article II of the constitution. Bill Barr notably supported the theory before his confirmation as Attorney General in 2018 memo criticizing the Russia probe.

Project 2025 proposes using the theory as justification to give Trump or the next Republican president maximum control over the executive branch. The 2024 Supreme Court ruling on Trump v. United States could make the president even more powerful, with some interpreting it as an endorsement of the unitary executive theory by the six conservative justices.

Criticism
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. Others favor a view 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.

Ian Millhiser also critiques weaker versions of the theory as giving presidents power to manipulate elections and interfere with technocratic aspects of government typically removed from politics like the Federal Reserve.

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.

Investigatorial independence and anti-corruption efforts of the Justice Department is a recurring theme in criticisms of the unitary executive theory.

Steven Greenhut argues the theory is a prescription for abuse and authoritarianism. Ilya Somin, also writing in Reason, argues that despite being a supporter of the logic of the theory in the past, concentrating further the amount of power the executive branch currently wields in the president would be a mistake and run contrary to the ideals of the founders who were concerned about the concentration of power.

Another concern revolves around the more practical implications of a brain drain of expertise throughout the federal government.

Loyola Law School professors Karl Manheim and Allan Ides write that "the separation among the branches is not and never was intended to be airtight," and they 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 being exercised by the executive branch, as necessary elements of the administrative state, but they contend that ultimately all administrative power belongs to Congress rather than the President, and the only true "executive" powers are those explicitly described in the Constitution. In this understanding, Manheim and Ides follow in the footsteps of Lessig and Sunstein.

David J. Barron (now a federal judge) and Marty Lederman have also criticized the unitary executive theory. They acknowledge that there is a compelling case for some form of a unitary executive within the armed forces. However, they argue that the Constitution does not provide for an equally strong unitary executive outside the military context, and they argue 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.

Unlike the modern constitutions of many other countries, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution itself includes no comprehensive separate regime for emergencies. Some legal scholars believe however that 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." 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 remaining 123 are assumed by an executive declaration with no further congressional input. Congressionally authorized emergency presidential powers are sweeping and dramatic and range from seizing control of the internet to declaring martial law. This led the American magazine The Atlantic to observe that "the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power", 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."

The BBC described the theory as "controversial," while The Guardian described it as "contested" and a "quasi legal doctrine." In 2007, Norman Ornstein wrote in the Economist that an overwhelming majority of constitutional scholars and historians find the theory to be "laughable." Iam Millhiser called it a 'worst-case scenario for liberal democracy.'

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.

The executive branches of Texas and North Carolina, for example, maintain a plural executive whereby the chief executive's actions can be curbed by other elected executive officers. The group of North Carolina executive officers is known as the North Carolina Council of State and it wields fair amounts of statutory powers when approving monetary and property transactions by the state government.

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."

Outside the United States
David Driesen argues that similar reforms led to significant democratic backsliding in Turkey, Poland and Hungary. He argues that unitary control over the executive is a defining characteristic of autocracy.

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."

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