Trump v. Wilcox, a case now pending on the Supreme Court’s docket, asks whether several congressionally established federal agencies that are supposed to enjoy a degree of independence from the president should be stripped of that independence. It’s the latest in Supreme Court cases involving the unitary executive theory, which in its strongest form would give presidents legal control over every federal job that’s not part of Congress or the judiciary.”
By TR Harry | Scottsdale
The unitary executive theory is a contested argument that the president of the United States has (or perhaps better said under current conditions, should have) sole personal authority over the executive branch of government.
There is disagreement about the theory’s scope. More expansive versions are controversial for both constitutional and practical reasons.
The theory has sparked 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 like special counsels, inspectors general, the civil service and commissions that cover topics like elections and communications that could tilt the playing field in favor of the incumbent’s party if under the president’s personal control.
Although the idea has been around for years, the Regan administration was the first to cite unitary executive theory. This era is cited as a major catalyst in growing presidential power, with significant growth post 9/11. Conservatives have most readily embraced the idea of a unitary executive.
Donald Trump advocates the more extreme versions of the theory, which make the president an unchecked ruler in the executive branch. He alone determines the direction, size and structure of government, based supposedly on (questionable) constitutional language, subject only to his whims, be they political, ideological, personal or other. During his first term, Trump exerted the greatest control over the office than any other modern president, often citing Article II of the Constitution. In 2019, he said, “I have an Article II, where I have the right to do whatever I want as president.” For most, that is not a comforting assumption by anyone holding public office.
Trump’s roughshod action in instituting change, even extending outside of government at times — the media, universities, the legal profession, et-al — suggesting a retributive motive, highlights his philosophy of “it’s my way or the highway,” one of take no prisoners. He appears to believe that any means he uses is justified by the ends he seeks. This is a dangerous policy to encourage, let alone allow, especially if one is uncertain of “the ends” he may be seeking. Few would argue against the authoritarian possibilities such an extreme version of unitary executive authority implies.
Unambiguous evidence of the above can be discerned by how Trump has governed during the first 100 days in his second term. He rules by fiat: a whopping — and record — 139 Executive Orders so far, while signing just five items into law, challenging both the legislative and especially the judicial branches to question or deter him.
His apparent aim is to force his actions on the largely conservative Supreme Court to rule on his employing a strong (exaggerated) unitary executive approach. For the reasons set out below, he obviously expects the Court to side with him, justifying him. Will it? If it does, I fear “we haven’t seen anything yet!”
Like it or not, I recognize the seriousness the Trump administration displays — if not always respecting the means it employs — in seeking to remake the governing and even cultural landscape (we did vote for change). But at the same time, I strongly concur with those who argue that Trump’s expansive interpretation of his executive authority (“…the right to do whatever I want…”) represents a threat to the constitutional order, to wit: Is “The Donald” a savior or a potential tyrant? Tyranny seems a not unfitting description of these few months in office.
In an extraordinary stretch of just over two weeks, three former presidents have taken to the public stage to sound the alarm against the current occupant of the White House, despite the tradition that former presidents generally refrain from publicly criticizing their successors. The only living president who has not spoken out since Inauguration Day is Republican George W. Bush, though he has made little secret of his antipathy for Trump. According to Timothy Naftali, a historian at Colombia University, “Former presidents are uniquely qualified to raise their voices and warn the American public if the country is taking a dangerous turn. Think of them as kind of advisory council to the people, and when the advisory council sounds the alarm, the people should listen.”
Trump v. Wilcox, a case now pending on the Supreme Court’s docket, asks whether several congressionally established federal agencies that are supposed to enjoy a degree of independence from the president should be stripped of that independence. It’s the latest in Supreme Court cases involving the unitary executive theory, which in its strongest form would give presidents legal control over every federal job that’s not part of Congress or the judiciary.
In recent decades, the Court’s conservative majority has suggested it is committed to an expansive view of presidential power — including the power to hire and fire officials who are supposed to be independent from political power.
Putting someone in a position of responsibility implies providing the necessary authority and tools to do the job. But just how much is sufficient, neither too little nor too much?
The president of the United States has a big basket of responsibilities in overseeing the executive branch and faithfully executing the laws of the land. But is such authority limitless, or should it be? Questionably, if you agree with our constitutional arrangement of checks and balances. Keep in mind that if the Court rules in favor of our current president’s wishes in his view of the prerogatives of a strong unitary executive, it will be judicial precedence for the actions of future commanders-in-chief as well. Let’s not get too far ahead of ourselves here.
The occupant of the Office of the President needs to be accountable as opposed to being supreme in carrying out its responsibilities. No matter the state of technology or the personal qualities of its incumbent, most would probably agree that it’s safer to have a few canaries in the coal mine than not — just in case.
Editor’s note: TR Harry is the pen name of a Scottsdale-based author who writes primarily about politics and religion on his blog. Please send your comments to AzOpinions@iniusa.org. We are committed to publishing a wide variety of reader opinions, as long as they meet our Civility Guidelines.
