What Is Unitary Executive Theory? How is Trump Using It to Push His Agenda?
Since taking office, President Donald Trump has executed a whirlwind of dismissals across the federal government that violated federal statutes and decreed numerous executive orders, including one that blatantly defied the plain language of the Constitution.
Behind the seemingly scatter-shot opening acts of his second administration, legal analysts see a common goal: to test a once-fringe legal theory which asserts that the president has unlimited power to control the actions of the four million people who make up the executive branch.
If courts — specifically the Republican-appointed majority of the Supreme Court — uphold arguments based on the so-called “unitary executive theory,” it would give Trump and subsequent presidents unprecedented power to remove and replace any federal employee and impose their will on every decision in every agency.
Rulings in favor of the Trump administration would also further jeopardize the independence of key regulatory agencies that are susceptible to conflicts of interest and political interference, like the Federal Election Commission, which oversees federal elections and campaign finance laws.
How Trump is advancing the theory
Trump and his administration have furthered the theory by repeatedly invoking Article II of the Constitution, which vests executive power in the president, to justify the recent dismissals of federal officials. They have framed the article as allowing the president to use the whole of the executive branch for his political ends.
For example, the White House Feb. 18 invoked the article to rationalize an executive order signed that same day that asserted the president’s authority over almost all regulatory agencies that were created by Congress to act independently, or semi-independently, from the president.
Frank Bowman, a scholar of constitutional and criminal law at the University of Missouri School of Law, told Democracy Docket he believes the executive order is a step toward “an open declaration of dictatorship.”
“In essence, what he’s saying is, ‘I am the law. My will is the law. My view of what the law is the only view that can ever be expressed,’” Bowman said.
Origins of the unitary executive theory
The theory has its roots in the aggressive assertions of presidential power in the 20th century, especially throughout the Nixon administration, but it emerged as an unorthodox legal framework during the Reagan administration and gathered strength with subsequent presidencies.
The framework gained significant traction during George W. Bush’s presidency, as it was key to his administration’s attempt to legitimize unprecedented presidential powers, including those over the use of military force, state-sponsored kidnapping, the detention and interrogation of prisoners and intelligence gathering.
There isn’t one set interpretation of the theory. At minimum, its proponents generally believe Article II allows the president to remove all executive branch officers. However, there are adherents, including Trump and many of his allies, who believe the president retains all the executive power and can control all officers and agencies.
Bowman said he believes the theory falls apart “under even rudimentary examination,” noting that it conflicts with the basic checks to executive power that are intrinsic to the Constitution.
For example, the Appointments Clause of the Constitution only allows Congress to create federal offices and define their functions and jurisdiction and specifies that lawmakers can determine how officers are appointed to their offices.
How Trump is going beyond the theory
New York University School of Law professor Noah Rosenblum told Democracy Docket that Trump’s idea of executive power is in many ways an expansive version of the traditional understanding of the unitary executive theory.
“Until recently, I think most of us would have said unitary executive theory was obviously a hugely sweeping claim of presidential power that how could you possibly ask for more,” Rosenblum said, “but Donald Trump is making different claims.”
He noted that the White House, in addition to invoking Article II, attempted to justify Trump’s Feb. 18 executive order against independent agencies by referring to him as “the democratically elected President.”
“That is an appeal to democratic legitimacy, not the Constitution,” Rosenblum said. “He’s saying, ‘I was chosen by you to be the leader, so I’m in charge. I can do whatever I want.’”
Not satisfied with having supreme control over the executive branch, Trump is attempting to usurp Congress’ power of the purse by impounding federal funds and encroaching on its ability to create federal offices by forming the Department of Government Efficiency to dissolve agencies created by the legislative branch.
The administration is also openly threatening to ignore the court’s power to review the actions of the government to ensure they are lawful, as seen by Vice President JD Vance stating earlier in February that “Judges aren’t allowed to control the executive branch’s legitimate power.”
Most incendiary, Trump on Feb. 15 put the rule of law — the foundation of our constitutional order — under the guillotine with a Napoleonic assertion that “He who saves his Country does not violate any Law.”
Supreme Court’s receptiveness to the theory
Bowman said that before the Republican-majority on the Supreme Court granted the president absolute immunity from criminal prosecution for official functions in Trump v. U.S. last year, he would have said SCOTUS wouldn’t be receptive to most of Trump’s arguments. Now, he thinks they may be.
Rosenblum and his colleagues have argued the unitary executive theory has been guiding the Roberts Court over the past two decades, and he told Democracy Docket that he does not expect the court to significantly deviate from the theory in response to Trump’s challenges.
In past decisions, like Humphrey’s Executor v. U.S., SCOTUS has prevented presidents from dismissing specific types of federal officials, such as those on multi-member independent administrative bodies, for causes that were not specified in law by Congress.
In more recent opinions, justices have maintained precedent set by previous rulings while at the same time expanding the president’s authority to remove other types of federal officials and giving him increased control over the executive branch.
Trump’s Department of Justice has relied on those recent opinions and Trump v. U.S. in its petition for SCOTUS to weigh in on the recent dismissal of the head of the nation’s top independent federal investigative and prosecutorial agency.
The petition may mark the first Supreme Court test of Trump’s second-term agenda and his goal to expand presidential powers.