Unitary executive theory
In U.S. constitutional law, the unitary executive theory is a theory according to which the president of the United States has sole authority over the executive branch. 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. There is disagreement about the doctrine's strength and scope. More expansive versions are controversial for both constitutional and practical reasons. Since the Reagan administration, the U.S. Supreme Court has embraced a stronger unitary executive, which has been championed primarily by its conservative justices, the Federalist Society, and the Heritage Foundation.
The theory is largely based on the Vesting Clause, which vests the president with the "executive Power" and places the office atop the executive branch. Critics debate over how much power and discretion the Vesting Clause gives a president, and emphasize other countermeasures in the Constitution that provide checks and balances on executive power. In the 2020s, the Supreme Court held that, regarding the powers granted by the Vesting Clause, "the entire 'executive Power' belongs to the President alone".
Since the nation's inception, the U.S. president has exercised significant authority over the executive branch, but presidents have often sought to expand their reach. This has led to conflicts with Congress and its legislative powers, in addition to its powers to delegate under the Necessary and Proper Clause. The Reagan administration was the first presidential administration to cite unitary executive theory. It then entered public discourse with the George W. Bush administration and found a strong advocate in President Donald Trump. Presidents of both parties tend to view the idea that they should have increased power more favorably when in office.
Beyond disputing its constitutionality, common criticisms of the theory include that it could lead to more corruption and less qualified employees. Some critics point to countries where similar changes to a more unitary executive have resulted in democratic backsliding, or to the majority of democracies that give their executive less power.
Terminology
The term "unitary executive" dates back to the Reagan administration, but supporters of the unitary executive theory, sometimes referred to as "unitarians", contend the principle dates to the founding of the United States. There is no single canonical interpretation of the theory, with different sources defining it differently. Some distinguish between stronger and weaker versions; most contemporary definitions focus on one of the theory's stronger versions. Broadly speaking, strong versions of the theory hold that the President has control over all officials in the executive branch; a weak version holds that Congress can significantly limit the President's authority, despite residing in a separate branch of government.Theory
The unitary executive theory has sparked significant debate as to what the Constitution says about presidential power. Proponents often advance the theory when arguing for more presidential power in hiring and firing members of the executive branch, including historically independent administrative law judges, prosecutors, inspectors general, the civil service, and commissions that cover topics like elections and communications that could tilt the playing field in favor of the president's party if under the president's control.Vesting Clause
The Vesting Clause of Article II of the Constitution, perhaps the most cited clause in favor of a stronger executive, reads, "The executive Power shall be vested in a President of the United States of America." Because this language vests all executive power solely in the president, proponents of a unitary executive maintain that all government officials who wield executive power are thus subject to the president's direction and control, as no one else is granted those powers under the Constitution. In 2020, the Supreme Court ruled 5–4 that, under the Vesting Clause, "the entire 'executive Power' belongs to the President alone".Take Care Clause
Proponents of unitary executive theory additionally argue that the Take Care Clause 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. In this regard, the Take Care Clause's primary historical function was to impose a duty on the president, not to expand his powers. They point to "faithfully executed" as meaning to follow court rulings and legislative statutes regardless of whether a president agrees with them.Opinion Clause
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.King of Great Britain
Proponents have made claims about the powers wielded by the King of Great Britain at the time of the founding of the United States 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. Invoking the king as an argument for expanded executive power was first made by the Supreme Court in Myers v. United States, a decision delivered by Chief Justice William Howard Taft, a former president of the United States. 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.Discussion
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 Congress' 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. 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. 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". The Constitution also grants Congress power "To make Rules for the Government and Regulation of the land and naval Forces."Some proponents of 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 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. But independent regulatory commissions have existed since at least the early 20th century, and removal protections for their commissioners were unanimously upheld by the Supreme Court in Humphrey's Executor v. United States. Law professor Christine Chabot argues that the independence of the Federal Reserve and its open market committee is constitutional. Chabot and Eliga Gould reference the founding-era Sinking Fund Commission as an example of an independent executive agency with a similar structure, with some commissioners, namely the Vice President of the United States and Chief Justice of the Supreme Court, not subject to the president's removal power. Other legal scholars have disputed the Sinking Fund's independence, referencing statutory provisions requiring presidential approval of the commission's decisions to purchase securities and the president's ability to remove a majority of its members, namely cabinet secretaries. Although the Roberts Court has not explicitly said whether protections for the Federal Reserve are permissible, it has held that such restrictions have a historical pedigree in the First and Second Banks of the United States. 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.
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. 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." 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. 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". This stands in contrast to other scholarly literature, such as MacKenzie in 2008 and Crouch, Rozell, and Sollenberger in 2020, that stresses that federal employees must faithfully execute the laws enacted according to the process the Constitution prescribes.