The Danger of the Unitary Executive Theory
By Wilson Urist
Over the past few months, the Trump Administration has relied on a novel legal theory, known as the Unitary Executive Theory, to pursue an expansion of presidential power. This conservative interpretation, championed by the likes of Project 2025 architect Russel Vought, holds that “the Constitution gives the president sole control over the executive branch of government.” While this might not sound like a big deal, in practice, the Unitary Executive Theory (the “UET”) is dangerous, potentially facilitating abuses of presidential power, eroding the integrity of American democracy.
Legal experts trace the UET to the early 20th century. From the 1910s to the 1930s, Congress established a series of new independent agencies to facilitate a larger, more active executive branch. Although presidents designated the officials who served in these autonomous organisations, they were not given the power to remove them at will. This was a key feature in the evolution of the federal government, as it insulated core oversight responsibilities from politics. Today, these independent regulators include the Federal Reserve, the Federal Trade Commission, the Federal Election Commission, and the Securities and Exchange Commision. These boards are tasked with managing significant aspects of American life and democracy, from overseeing the stock market, campaign contributions, antitrust violations, and national economic policy.
Their separation from the President remains crucial, as it ensures that politics does not encroach on non-partisan government functions that benefit all citizens. Indeed, the Supreme Court upheld the independence of these government agencies in the 1935 case Humphrey’s Executor, which held “that presidents can fire members of independent boards or commissions only for cause, such as inefficiency, malfeasance or neglect of duty.”
In the 1988 case Morrison v. Olson, while the Supreme Court upheld Humphrey’s Executor, conservative Justice Antonin Scalia outlined the modern version of the Unitary Executive Theory in his dissent. Morrison grappled with whether an independent judicial counsel was subject to the same protections granted to regulators by Humphrey’s Executor. Although a majority determined that the counsel was entitled to the same degree of independence, Justice Scalia argued that the court’s decision infringed on the powers of the president. He cited the Constitution’s Article II, which designates that “the executive Power shall be vested in a President of the United States of America.” He held that all the executive power must be singularly granted to the chief executive, the seed for the modern incarnation of the UET.
By the early aughts, the Unitary Executive Theory had a foothold in mainstream politics. The Bush Administration based its counterterrorism policy on elements of UET. Administration advisers, including Vice President Dick Cheney and Defense Secretary Donald Rumsfeld, recommended “the illegal wiretapping of phones by the National Security Agency, [the suspension of] habeas corpus for both U.S. and foreign citizens, and [the abduction of] terrorism suspects…for aggressive interrogation and torture.”
Using the UET, Bush and his advisers pursued policies which, at times, ran contrary to American constitutional norms, violating privacy protections, and the right to due process. Throughout the war on terror, the civil liberties of Muslim and Arab Americans were infringed in the name of counterterrorism. Driven by fear of future terror attacks, government agents detained people with little evidence or due process, who were ultimately innocent of the alleged crimes.
Today, UET proponents, such as former Trump Attorney General Bill Barr, believe that the president of the United States possesses the authority to “remove any executive branch official, including heads of independent agencies, even if such action would violate job protections enshrined in laws passed by Congress.” The theory elevates presidents to a monarchical position, allowing them to personally direct oversight of essential sectors of American society.
In February, shortly after assuming office, President Trump issued an executive order, titled “Ensuring Accountability for All Agencies,” which explicitly embraced a unitary interpretation of presidential powers. Then, as part of his ongoing purge of the federal government, Trump fired several Democratic members of different independent regulatory agencies, including the National Labor Relations Board, the Federal Trade Commision, and the Merit Systems Protection Board. Looking ahead, Trump no doubt hopes that the conservative Supreme Court will validate the UET, as the current justices have been open to fringe constitutional interpretations, encapsulated by its ruling on presidential legal immunity.
If successful in its attempts to institutionalise a unitary vision of the presidency, the Trump administration would have breathtaking authority to easily replace federal regulatory officials who refuse to support Trump’s political goals, damaging democratic guardrails. By getting rid of those committed to abiding by federal law, Trump loyalists would be free to aggressively execute the administration’s anti-democratic agenda without internal resistance. In this vision of an all-powerful presidency, there are virtually no checks on an administration purging the executive branch to ensure total control over the government’s affairs.
For instance, Harvard Law Professor Cass Sunstein explains that the Unitary Executive Theory provides the president with the power to target his political opponents and punish media outlets. Referencing the FCC, Sunstein writes, “A president who oversees [FCC’s] decisions could punish news sources that he didn’t like and reward those he loved.” The Federal Communications Commission is tasked with regulating cable television. Trump has previously attacked MSNBC, which is subject to the FCC’s supervision, railing against its criticism of him, while pushing for governmental punishment of the network. Similarly, he has referred to the New York Times, CNN, and NBC News as “the enemy of the American people.” If granted the ability to remove members of independent regulators, such as the FCC, Trump and future presidents would be able to target journalists who expose his corruption and abuses of power.
During his infamous 1977 interview with British journalist David Frost, former President Richard Nixon said: “when the President does it, that means it is not illegal.” Four decades later, in 2019, President Donald Trump echoed the sentiment saying that Article II of the Constitution grants him “the right to do whatever I want as president.” If President Trump's sweeping power grab is endorsed by the Supreme Court using the Unitary Executive Theory, Nixon’s and Trump’s view of a king-like presidency will be cemented. For the first time in our nation’s history, American presidents will have newfound legal justification to assault the democratic framework with impunity. What started out as a fringe legal theory would become a dangerous reality for our country’s future.