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Observing President Donald Trump govern over the past month has felt like watching a hostile takeover. His administration has gone on a firing spree, directing federal agencies to lay off the more than 200,000 probationary government workers, offering tens of thousands of federal employees a dubious buyout offer, and empowering an unelected billionaire to poke around in nearly every federal agency to find even more people to fire while also slashing congressionally approved budgets.
While many of the workers who have been dismissed were not yet covered by civil service protections, Trump has also gone after people he can’t legally fire in the absence of specific misconduct. He removed a member of the National Labor Relations Board, for example, effectively immobilizing the agency created to protect American workers. Some of Trump’s layoffs have been stopped by a court order.
You might be wondering: What’s so bad about the president firing a bunch of people, since he is essentially the boss of the executive branch? That’s exactly what conservatives are arguing as they pursue a strategy called unitary executive theory.
This legal concept first took off under former President Ronald Reagan as he tried to undo the progressive policies of the New Deal. It was then popularized within conservative legal circles, with scholars arguing that Article 2 of the Constitution should be interpreted as saying the president is a singular—unitary—executive who is “the ultimate policy maker, with all others subordinate to him.”
To understand what’s at stake here, I spoke with Christopher Wright Durocher, vice president of policy and program at the American Constitution Society. He explained why it’s important for federal agencies to have some degree of independence, and the negative consequences in store for everyday Americans if that goes away.
Here’s our conversation, lightly edited and condensed for clarity.
Shirin Ali: Can you explain what unitary executive theory is?
Christopher Wright Durocher: Unitary executive theory is this idea that the president can control everything within the executive [branch] directly. The theory itself can be read narrowly, or pretty broadly. And while the idea that the president is the head of the executive has been around since the signing of the Constitution, it’s in Article 2, Section 1, it essentially says that the executive power shall be vested in the president of the United States, and that’s been a part of the structure of government from the jump.
The idea of the unitary executive theory and the articulation of it arose around the time that Ronald Reagan was elected president. It was something that folks, particularly the Department of Justice, discussed because Reagan was coming in at a time that was post–New Deal, post–Great Society. A lot of liberal or progressive policies had been enacted over the early-to-mid-20th century, and Reagan, when he became president, viewed it as his job to restructure the government.
One of the challenges that his administration faced was agency bureaucracy; the folks who worked in those agencies and how the agencies themselves operated. The Reagan administration felt there was this idea, which I think you’re seeing echoed now, that federal employees within the bureaucracy were out to undermine the goals of the current president. Based on that, they started making arguments that the president had the power to direct policy and employees of federal agencies directly to pursue his aims. That’s sort of the nascent stages of the unitary executive theory, and I think in its weakest form, it’s this idea that the president can control what the agencies do. From there, it can broaden and become a much more muscular or aggressive form of unitary executive.
The executive order that president Trump recently put out regarding independent agencies is probably one of the most aggressive assertions of this unitary executive theory. This executive order flies directly in the face of what is still good precedent, which is Humphrey’s Executor v. United States. It’s a 1935 Supreme Court decision where FDR wanted to fire a member of the Federal Trade Commission who had been appointed by former president Herbert Hoover, because he believed that as he was trying to enact the New Deal, this particular member of the FTC was an obstacle to that.
So, FDR said, “I want to fire this person, Humphrey, because he’s undermining my ability to get my policies enacted.” The Supreme Court said that members of the FTC, as this quasi-legislative and judicial agency, had certain protections against firing for that particular reason. Congress essentially said you can only fire them for cause, like misfeasance or malfeasance, and this is a policy disagreement, which does not count. Now, that precedent has been revisited a few times, but it’s still by and large a good precedent.
Trump is saying that independent agencies, like the FTC and the Federal Communications Commission, are no such thing and that he doesn’t recognize them as being legitimate. Even if you look at the executive order, he essentially says that every president until him allowed them to exist and do their thing, but that was just because they were simply allowing it to happen, but they didn’t have to. Now, Trump is looking to rein them in, and I think it’s one of the places where you see the unitary executive theory being applied in a very aggressive manner.
Why were the independent agencies created in the first place?
I think naturally, as the Supreme Court described them in Humphrey’s, they’re quasi-legislative and judicial. Their job is ultimately to execute the law and, in our constitutional design, there’s no clear place for them other than the executive branch. It also makes sense that they have a level of independence, though the president has control over them within the constraints that were designed by Congress, as a coequal branch of the government.
The idea that our constitutional order could work without having somewhat permeable lines between those, I think, isn’t realistic, especially in a modern world. Our country, and our world, is so much more complicated than it was when the Constitution was signed, and to have agencies independently operate without interference is really important in order for them to achieve their goals.
I will also point out that despite how these independent agencies are characterized by President Trump and others, they’re not unaccountable. Many members of the commissions are appointed by the president for a five- or a seven-year period, and the idea is that it lasts longer than the term of the president who appoints them, creating some level of continuity. It also protects them from political pressures or influences.
They also have various partisan makeup requirements, where there has to be equal numbers of Republicans and Democrats, or two from one party and one from the other party, and the president gets to determine the makeup of that. They’re not wildly unaccountable, they are a part of the government. Just because the members of the current Federal Trade Commission, Federal Communications Commission, or Federal Election Commission weren’t appointed by Trump doesn’t mean that they’re antidemocratic or unanswerable to the American people. I think that characterization is really misleading.
Conservatives who embrace unitary executive theory argue it’s in line with what the founders intended. Why is that?
Most proponents of the unitary executive theory tend to come out of a conservative legal tradition. That is certainly the case, and they will make originalist arguments about that, even though the unitary executive theory is a creation of the late 1970s and early ’80s, not 1770s and 1780s. There is some irony to that.
In the mid-1980s, the Supreme Court decided Chevron v. National Resources Defense Council, and that case said that agencies should be given an enormous amount of deference in terms of the way that they interpret their own statutes when they’re promulgating regulations.
Part of the reason why that came to be is because the Reagan administration was trying to achieve certain aims through regulations, specifically at the Environmental Protection Agency. They were trying to loosen regulations around pollutants, particularly airborne pollutants. They argued, no, give the agencies the power to make this decision, and under the unitary executive theory, ultimately that meant giving the president the power to make these decisions through the agencies he’s running.
Then you see, 30 years later, that a very conservative Supreme Court overrules Chevron, and in the Loper Bright Enterprises v. Raimondo case they said, no, the agencies don’t get any deference. It’s up to the courts to determine whether an agency’s interpretation of a statute is reasonable with regard to a regulation. That came out of this fear that Democratic or more progressive administrations were using agencies to achieve aims outside of what conservatives thought Congress meant for them to do.
What had started as sort of a conservative attempt to get more power within the executive was then turned, over the course of time, and now a conservative court has essentially said, nope, you don’t get to do this, and we’re not going to be deferential to administrative agencies. The thing that I would note there, though, is that this decision was made with regard to a Democratic president and an agency that was under Democratic control, with regulations that conservatives generally don’t approve of.
An open question that we have now is: How muscular is the court’s interference with agency action going to be under a Trump administration? Are they going to actually follow through on what Loper Bright would mean and subject regulations to judicial review that did not give any deference to the agencies? Or are they going to be a little bit more hands-off and allow the Trump administration to exercise this power without judicial interference? It’s sort of a “deference for me, but not for thee” situation.
What impact would the implementation of a unitary executive have on our daily lives?
In terms of the way that federal funding is doled out, appropriations are very carefully crafted in Congress. There is a deliberative process that involves folks from every state, every congressional district, to come up with some sort of agreement to fund the government. The idea that the president could decide, “Well, sure, you just gave me the money, but I’m going to do whatever I want with it”—that creates serious issues.
I think that Trump’s halting of grant money is a good example of this. Most people don’t realize the extent to which the federal government’s funding plays a role in things like schooling and hospitals and other community institutions that they rely on. If the president can unilaterally decide, Well, that money is not going there, that could have a real, immediate impact. Take transportation funding—say the president decides, We’re not going to send money to this state because I don’t like their politics, so they’re not getting money to fix their bridges. Suddenly a community’s bridges and roads are in disrepair, and that’s a huge safety risk.
Plus, economically, the Federal Trade Commission and the Securities and Exchange Commission were given a level of independence for a reason, to prevent self-dealing and to ensure continuity of policy. The idea that the president could directly interfere with their activities could have very negative consequences for the economy, consumer protection, and the ability of businesses to take advantage of consumers, which should be a serious concern.
One of the things that is not directly related to the unitary executive theory, but is very closely tied to it, is the Supreme Court’s decision in Trump v. United States; the idea that you would be immune from criminal prosecution, coupled with the idea that, as president, I get to decide what is constitutional and how all of these government programs operate even though Congress passed laws that lay out how they operate. It creates the opportunity for self-dealing. It’s really a pretty healthy step towards oligarchy. I think we’re seeing a lot of that happening in real time now.
Vice President J.D. Vance recently tweeted that “judges aren’t allowed to control the executive’s legitimate power,” and it’s created a debate over how far the president’s authority extends. What do you think Vance meant by this?
I can’t say what he thinks he meant by it, but when you’re the vice president and you’re tweeting, I think you need to be careful with your words. This clearly seemed like a shot across the bow, telling judges who were considering various challenges to Trump’s executive orders that have already been issued and the orders to come, You better be careful. If you step out of line and do something we don’t like, we could just ignore you.
There’s this aphorism when talking about courts: They don’t have money and they don’t have armies. All they have is their words and institutional legitimacy and respect.
There’s nothing a court could do to physically force an administration to follow its orders; it’s just the institutional pressure and norms. We saw during his first term, that President Trump was willing to ignore a lot of institutional norms and pressures. I think that we’re going to see even more of that now.
The idea that if a court does something that the Trump administration disagrees with, they’ll just disregard that, is extremely dangerous. It raises the question of, what role do the courts have if the other branches of government are able to just ignore it? Particularly the executive branch, which is the most active branch—they’re the ones out there enforcing and applying the law.
Former Attorney General Edwin Meese made an observation that the president gets to decide for himself what is constitutional. I think that’s a really dangerous way to approach governing, because it throws accountability largely out the window.
