Perils of Unitary Executive Theory
Much of the litigation surrounding the new Trump administration turns in part on “unitary executive” theory – the idea that the president should have near-total control over the executive branch of government.
As I explained in a 2018 post on this topic, unitary executive theory is one of the few issues on which I have changed my mind during the Trump era. Most of my opposition to the Trump-era GOP is based on that party’s turning strongly against positions I had held previously, on issues like immigration, free trade, federalism, free speech, and the role of the United States in the world. Unitary executive theory is an exception. This post builds adapts and expands material from my 2018 piece and explains why unitary executive theory cannot be accepted in a world where the federal government wields vastly greater power than it is supposed to have under the original meaning.
Before going into detail, it’s worth emphasizing what unitary executive theory (UET) is – and what it is not. UET is a theory of the distribution of executive power, not a theory of its scope. Even if all or nearly all executive authority is concentrated in the hands of the president, it’s scope could potentially still be quite narrow, if the total amount of executive power is very limited. For example, even if UET is correct, the Trump administration’s multifaceted effort to usurp the spending power is still unconstitutional, because the power of the purse is not an executive power at all. It belongs to Congress.
Still, the modern scope of executive power is very broad, in large part because the federal government has intruded into so many areas beyond what it was supposed to control under the original meaning of the Constitution. And that undermines the case for UET.
In some ways, the originalist case for a unitary executive is as compelling as ever. Article II of the Constitution states that “The executive Power shall be vested in a President of the United States of America.” It does not say that executive power can be divided between the branches of government or given to bureaucratic agencies independent of presidential control. This strongly implies that he is supposed to have all the power given to the executive branch, except such as is specifically allocated elsewhere in other parts of the Constitution.
If the executive branch still wielded only the relatively narrow range of powers it had at the time of the Founding, the case for the unitary executive would be pretty strong (at least on originalist grounds). Unfortunately, however, the current scope of executive authority goes far beyond that. To take just one noteworthy example, the president now
Article from Reason.com
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