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Unitary executive theory

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In American politics, the unitary executive theory is "an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House."[1]

Advocates of the theory focus interepretations of greater executive power on Section 1 of Article Two of the United States Constitution.[2] 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,[when?] 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.[3][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 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.[3] 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 ability of the president to remove employees within the executive branch, around transparency and access to information, discretion over the implementation of new laws and the ability to influence rulemaking by agencies.[4] The theory is not long-established or widely accepted, but is rather controversial.[5][6][7] Beyond disputing its constitutionality,[8][9][10][11] common criticisms include the idea that it leads to poor outcomes[12][13][14] and undermines democracy.[15][16][17][18] A few critics point to other countries where similar ideas have resulted in democratic backsliding, or to the vast majority of democracies (including US states and local governments) that purposefully diffuse executive power more widely, with positive results.[19][17][20][21]

  1. ^ "The 2024 Executive Power Survey – Unitary Executive". The New York Times. 2023-09-15. ISSN 0362-4331. Retrieved 2024-07-19. 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.
  2. ^ 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. 540, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18 "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.
  3. ^ a b Chabot, Christine Kexel (2020-11-13). "Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies". Notre Dame Law Review.
  4. ^ 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 2024-07-18
  5. ^ Dodds, Graham G. (2023), Akande, Adebowale (ed.), "Is the President a King? The Unitary Executive Theory and the Presidency of Donald J. Trump", U.S. Democracy in Danger: The American Political System Under Assault, Cham: Springer Nature Switzerland, pp. 487–517, doi:10.1007/978-3-031-36099-2_21, ISBN 978-3-031-36099-2, retrieved 2024-07-12
  6. ^ Cite error: The named reference :2 was invoked but never defined (see the help page).
  7. ^ 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. 547, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18
  8. ^ Cite error: The named reference :42 was invoked but never defined (see the help page).
  9. ^ Cite error: The named reference :14 was invoked but never defined (see the help page).
  10. ^ Cite error: The named reference Manheim Ides was invoked but never defined (see the help page).
  11. ^ Cite error: The named reference :15 was invoked but never defined (see the help page).
  12. ^ Somin, Ilya (2018-05-03). "Rethinking the Unitary Executive". Reason.com. Retrieved 2024-07-20. 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.
  13. ^ Pilkington, Ed (2024-06-07). "Trump plots capture of DoJ in renewed assault on US justice system". The Guardian. ISSN 0261-3077. Retrieved 2024-07-19. '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.'
  14. ^ "How MAGA Republicans plan to make Donald Trump's second term count". The Economist. July 13, 2023. ISSN 0013-0613. Retrieved 2024-07-19. 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.
  15. ^ 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, pp. 548, 550–551, doi:10.1007/978-3-031-56415-4_22, ISBN 978-3-031-56414-7, retrieved 2024-07-18 "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."
  16. ^ Howell, William; Moe, Terry (2021-11-01). "Analysis | Big government vastly expanded presidential power. Republicans use it to sabotage the administrative state". Washington Post. ISSN 0190-8286. Retrieved 2024-07-20. 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.
  17. ^ a b Driesen, David (2020-11-01). "The Unitary Executive Theory in Comparative Context". UC Law Journal. 72 (1): 1. ISSN 0017-8322.
  18. ^ Greenhut, Steven (2024-06-28). "Project 2025: The Heritage Foundation's plan to embrace bigger government during Trump's second term". Reason. Retrieved 2024-07-11. 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.
  19. ^ Hennessey, Susan; Wittes, Benjamin (2020-01-21). "The Disintegration of the American Presidency". The Atlantic. Retrieved 2024-07-20. 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.
  20. ^ Gersen, Jacob; Berry, Christopher R. (March 2008). "The Unbundled Executive". University of Chicago Public Law & Legal Theory Working Paper No. 214, 2008: 10–11. SSRN 1113543. 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...
  21. ^ Berry, Christopher R.; Gersen, Jacob E. (2008). "The Unbundled Executive". The University of Chicago Law Review. 75 (4): 1399–1400. ISSN 0041-9494.

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