Althouse: "The Supreme Court has also embraced the 'unitary executive theory,' as the legal idea is known."

February 4, 2025

"The Supreme Court has also embraced the 'unitary executive theory,' as the legal idea is known."

"Legal experts and Trump allies said some of the new administration’s opening moves appear calibrated to tee up cases that rely on the theory, before a friendly Supreme Court that includes three appointees from Trump’s first term. Rulings in favor of the executive branch could cement a vision of the presidency defined by untrammeled authority.... 'It’s very, very dangerous to operate under the unitary executive theory when you have a president with autocratic tendencies,' [said lawprof David M.] Driesen.... Conservatives make a counter argument: The federal bureaucracy has grown so large and independent, they say, that it thwarts the will of democratically elected presidents to enact their agenda. The 'administrative state' or 'deep state' has essentially become a fourth branch of government in their view, unaccountable to the people.... Proponents say the theory rests on a plain reading of Article II of the Constitution, which says executive power 'shall be vested in a President of the United States' and the executive 'shall take care that the laws be faithfully executed.'..."

Writes Justin Jouvenal, in "Why the Supreme Court may be open to Trump’s push for expanded power/The Trump administration and the high court subscribe to a legal theory that grants extraordinary power to the president" (WaPo).

53 comments:

Qwinn said...: It's not "expanded power". It's reclaiming the power presidents had since the founding, that was usurped by Congress via plainly unconstitutional civil service laws.

I was taught as a child that a main assumption by the Founders to keep the system of checks and balances working was that each branch would "jealously guard its powers". Prior Presidents (including Trump in his first term) failed to guard that power. Trump is fixing that.; 2/4/25, 11:42 AM
kylos said...: Maybe it will force Congress to actually legislate rather than passing the buck to the bureaucracy. If you give sweeping powers to the bureaucracy, you're actually giving them to the president willing to claim them.; 2/4/25, 11:44 AM
Jaq said...: Only presidents with the unqualified support of the deep state can be trusted with such power, meaning "Democrats."

Joe Biden sicced his DoJ on his political opponents and the term "autocratic" never came up.; 2/4/25, 11:44 AM
D.D. Driver said...: No. The problem is building a giant executive department in the first place. Don't want a powerful executive? Stop creating federal agencies dipshits! But if the president is NOT in charge of those agencies Congress created, then who is? "Nobody" is not an acceptable answer.; 2/4/25, 11:44 AM
Qwinn said...: Actually, I should clarify, *Republican* Presidents failed to jealously guard that power. Never seen a single instance where civil service laws got in the way of Democrat Presidents doing whatever the hell they wanted.; 2/4/25, 11:45 AM
mccullough said...: It’s not a theory. It’s in the Constitution. Congress only role is in creating/abolishing departments, approving or denying certain nominations of principal officers, and delegating the hiring of inferior officers to the heads of departments. That’s it.

The administrative state with civil service protections and unions is a theory. A bullshit theory.; 2/4/25, 11:46 AM
RideSpaceMountain said...: "Maybe it will force Congress to actually legislate rather than passing the buck to the bureaucracy."

It is exactly the legislative branch's "passing the buck" - pun absolutely intended - that gave us the Federal Reserve.

Dear congress, DO YOUR GODDAMN JOB.; 2/4/25, 11:49 AM
narciso said...: Is this standup comedy; 2/4/25, 11:59 AM
Aggie said...: There's that word 'shall' again. Sometimes I love its clarity.; 2/4/25, 12:02 PM
Bart Hall (Kansas, USA) said...: Grover Cleveland (D) is one of my favorite Presidents. In each of his split terms [22/24] he vetoed hundreds of bills, most for the same reason ... "I find nothing in the Constitution which empowers Congress to legislate in this matter."

Works for me.; 2/4/25, 12:02 PM
Levi Starks said...: FDR was so successful at this that term limits were deemed necessary.; 2/4/25, 12:03 PM
Jupiter said...: " [said lawprof David M.] Driesen."
Who do you suppose is paying that lying weasel? Ah! Syracuse. Syracuse is where this dog's bowl is filled.; 2/4/25, 12:05 PM
Chris said...: "Why the Supreme Court may be open to Trump’s push for expanded power/The Trump administration and the high court subscribe to a legal theory that grants extraordinary power to the president"

One way to limit the President's extraordinary power is to limit the size and scope of the branch of government he/she leads. If DOGE succeeds, Trump's administration may very well solve this problem, too.

Is this what Americans felt during the Apollo era: the audacity of the goal, and the growing realization that it's achievable? And possibilities of what else we might do, if we just decide to do it? If right-sizing the bureaucracy works, will we have the courage to reform Obamacare, or tackle entitlements?; 2/4/25, 12:10 PM
Jaq said...: In 2000, the Florida Supreme Court interpreted "shall" as "must not" in the case where the law said that the Secretary of State "shall" certify the election.; 2/4/25, 12:10 PM
john mosby said...: Prof Driesen: “…a president with autocratic tendencies”

Trump is an autocrat wrt the government, and a democrat wrt the people. When the people vote you in to crack the whip on the government, that’s not autocracy - it is as democratic as you can get, short of getting out the ostrakoi to exile the bastards.

JSM; 2/4/25, 12:16 PM
Jupiter said...: "Professor Driesen engages in public service mostly focused on defending environmental law’s constitutionality and supporting efforts to address global climate disruption." So, he's a con artist. A grifter, no doubt, but not a cheap grifter.; 2/4/25, 12:26 PM
Lem Vibe Bandit said...: This comment has been removed by the author.; 2/4/25, 12:35 PM
rehajm said...: When the guy you vote for loses you just can’t wait for the winner to be gone…; 2/4/25, 12:39 PM
Mike (MJB Wolf) said...: Sure just pretend it has nothing to do with the actions of presidents 44 and 46. The WaPo really is going for the juvenile Juvenal argument.; 2/4/25, 12:40 PM
Larry J said...: "It's not "expanded power". It's reclaiming the power presidents had since the founding, that was usurped by Congress via plainly unconstitutional civil service laws."

Unfortunately, and for far too long, the Constitution only means what a majority of Supreme Court justices say it means, actual text notwithstanding.

"Maybe it will force Congress to actually legislate rather than passing the buck to the bureaucracy."

You're right, but fat chance of that happening. How long has it been since Congress actually passed a budget and all the accompanying appropriations legislation? When was the last time they did it before the start of a new fiscal year? I seem to recall that happening in the early 1980s, but I'm not sure. Congress seems more interested in holding investigatory hearings (which have their place) instead of actually writing legislation.; 2/4/25, 12:43 PM
JaimeRoberto said...: Sounds like a threat to Our Democracy as the Democrats have defined it.; 2/4/25, 12:48 PM
Josephbleau said...: 'It’s very, very dangerous to operate under the unitary executive theory when you have a president with autocratic tendencies,' [said lawprof David M.] Driesen.... Conservatives make a counter argument: The federal bureaucracy has grown so large and independent, they say, that it thwarts the will of democratically elected presidents to enact their agenda.’

This presents a quasi Bayesian argument, the deep state must represent the prior distribution, the history and traditions developed by the bureaucracy and the constitution. The new President represents the likelihood of the new data, the desire to challenge the past with modern information.

To reach the new state, the posterior distribution, the resultant, is a mixture of both. The question is, how much weight do we assign to the past, how strong is the prior. How much should we allow an individual President to affect government systems rather than merely being an operator of the system within strict boundaries.

That provides a somewhat different perspective on conservatism vs radicalism.

Naahhh!; 2/4/25, 12:54 PM
Mike (MJB Wolf) said...: Yes and the author conflates "administrative state" with "Deep State." Could be he's too ignorant to be writing on the subject. Or he could genuinely not even know the difference. Again, an area where many conservative law experts have written extensively (one of the best being Phil Hamburger's "Is Administrative Law Legal?") and widely discussed the subject publicly (The Hugh Hewitt Show, Volokh Conspiracy, etc.) yet WaPo assigns a guy who can't be bothered to even correctly define the terms.

At least he seems vaguely aware that the Supreme Court has come down on the side of the "as written" Constitution and ruled in favor of the legislature making laws, not deferring to unelected admins.; 2/4/25, 1:01 PM
Original Mike said...: I used to be confused about the concept of government agencies being "independent" of the President. I "bought it", because I heard it repeated endlessly, but I couldn't figure out how it worked. From whence did they receive their authority?

But I get it now; the left/democrats essentially own these agencies (the Deep State is real) and so it's in their interest to claim that agencies are independent. It's a power grab, pure and simple.; 2/4/25, 1:11 PM
Mike (MJB Wolf) said...: Just like the long line of history's famous autocrats before him Trump is devolving power to the states, defunding unauthorized parts of the Executive Branch, signing executive orders reigning in the police state and supporting freedom of speech, and focusing departments on their mission instead of meddling in our affairs. Right perfesser?; 2/4/25, 1:14 PM
Mike (MJB Wolf) said...: No, he's defending environmental rulings created by the administrative state. Our actual environmental laws are modest and limited in scope, exactly what irks the perfesser. Leftists can't even write an honest bio-blurb.; 2/4/25, 1:16 PM
Mike (MJB Wolf) said...: It was sleight of hand, verbally.; 2/4/25, 1:17 PM
Josephbleau said...: The deep state Vindimans say, no no don't touch baby Trump, mommy is the one who tells you what to do.; 2/4/25, 1:21 PM
Leland said...: Really it is just using the same power in the same way Biden, err the people running Biden, used a month ago. The left just didn’t mind if Joe Biden unilaterally decided to cut off US access to decades of oil and gas because that’s what he wanted to do. That’s before we get into whatever Joe’s family was doing that now is protected by the Presidential pardon power.; 2/4/25, 1:26 PM
WhoKnew said...: " Rulings in favor of the executive branch could cement a vision of the presidency defined by untrammeled authority." Really? Will they give him the power to legislate or issue judicial rulings? The president's power is limited to the executive branch by the constitution. Congress has plenty of power to compete with this, in particular the power of the purse. If they don't want the president to have too much power, they should stop giving it to the bureaucrats in the executive branch.; 2/4/25, 1:43 PM
Dave Begley said...: Why didn't WaPo get a comment from law professor emerita Ann Althouse?; 2/4/25, 1:50 PM
Quayle said...: ' 'It’s very, very dangerous to operate under the unitary executive theory when you have a president with autocratic tendencies,' [said lawprof David M.] Driesen...."

Did this guy ever take a constitution law class? Did he pass the class?

The Constitution has a remedy for an overly autocratic president. The mechanisms to properly steer this republic are all provided for. Within 2 days the congress could impeach the president or any judge. Within 2 years the entire funding of the government could be changed to fund what the voters want. Within four years the president could be dumped. Within 6 years any resistance to mass impeachments could be overcome. All the levers are there. But this guy appears to think that the law school professoriate knows better than the people.; 2/4/25, 2:18 PM
narciso said...: When one is dismantling institutions devolving power is the opposite of autocracy; 2/4/25, 2:25 PM
n.n said...: Trump upholds the Constitution like no Democrat and that is the problem.; 2/4/25, 2:26 PM
n.n said...: Trump dismantle DEI (i.e. institutional, systemic racism, sexism, transgenderism, nepotism, etc) and that is the problem. That, and the redistributive change schemes. Throw another baby on the barbie, it's over?; 2/4/25, 2:29 PM
Peter Spieker said...: Is there an alternative theory to the “unified executive” theory? There is a lot of practice that departs from it, but does that practice have any theoretical underpinnings? If so, what are the rules of this alternative theory? Why is agency A under the direction of the President while agency B can be independent of him? Maybe it is all pragmatic decision making, without any rules at all. Could Congress set up a seven person commission to authorize the use of nuclear weapons, rather than leaving that up to one person, if they make the pragmatic decision that would be safer?; 2/4/25, 2:36 PM
Dogma and Pony Show said...: WaPo again does its readers a disservice by misinforming them. What's happening now is not that Trump is trying to claim extraordinarily presidential powers, it's that dems are advancing an anti-democratic theory that unelected executive branch subordinates are not answerable to the president, but rather can wield independent power as a "check" on presidential power.

This is a particularly shocking attempted power-grab in the case of USAID, because the executive order and statute on upon which it was founded expressly provide that the aid administered by that agency must comport with U.S. foreign policy objectives. The Constitution unequivocally delegates to the president plenary authority over the nation's foreign policy. Ergo, Trump clearly has the right to decide whether or not projects in line to be funded by USAID are consistent or inconsistent with his foreign policy objectives, and approve or disapprove of them accordingly. It is literally tantamount to a coup for USAID bureaucrats to claim the right to dispense lucre to the overseas interests in defiance of the presidents and his SoS's wishes and policies.; 2/4/25, 2:38 PM
n.n said...: Our government is Branched, Equitable, and Inclusive (BEI).; 2/4/25, 3:19 PM
Lazarus said...: Is this a theory or is it rather a strategy or practice or procedure? Is it agreed upon that power in the executive branch rests with the president and can be exercised in more or in less direct ways? Different presidents delegate to different degrees depending on how friendly or how hostile bureaucrats are. To what extent would any president simply submit to bureaucrats' decisions and how far can a president go in exercising power over the bureaucracy?; 2/4/25, 3:47 PM
BUMBLE BEE said...: Silly boy, she walks around The People's Republic of Madison! That's why.; 2/4/25, 3:49 PM
Robert Cook said...: "It’s not a theory. It’s in the Constitution. Congress only role is in creating/abolishing departments, approving or denying certain nominations of principal officers, and delegating the hiring of inferior officers to the heads of departments. That’s it."

Where is that in the Constitution?; 2/4/25, 4:21 PM
Saint Croix said...: grants extraordinary power to the president

Why is "extraordinary" that the president has an administration that is on his side?

That would seem to me to be perfectly normal.; 2/4/25, 4:27 PM
Mattman26 said...: There's plenty in the Constitution that is open to multiple interpretations. "The executive Power shall be vested in a President of the United States of America" is not.; 2/4/25, 4:50 PM
Readering said...: Hope a Dem makes good use.; 2/4/25, 4:57 PM
Fred Drinkwater said...: The only interesting part of the budget is the "skim", and that part always gets done.; 2/4/25, 5:01 PM
Fred Drinkwater said...: PLEASE do my blood pressure a favor. Don't mention those traitors, Vindman and Strzok. Thank you.; 2/4/25, 5:04 PM
One Fine Day said...: Multiples already did. When warned that it was a bad idea, they doubled down. Now a Republican is playing by the rule set established by the Dems.

Cry a little harder, America-hater.; 2/4/25, 5:11 PM
Former Illinois resident said...: Trump is left of JFK.; 2/4/25, 5:26 PM
The Godfather said...: Have you ever actually read a major federal statute? As part of what used to be my job, I had to do so. Maybe it was different before the New Deal, I don't know, but in the modern era, the laws passed by Congress don't say: Agency X do this. They say the objective of this law is to "safeguard the environment as defined in Section ABC" or to "promote employment of the disabled as defined in section XYZ", etc. etc. And they create an agency to advance such goals. And Congressmen and Senators then run for re-election based on their support of clean air or jobs for the handicapped.
Meanwhile, the staff of the Agency comes up with complex and detailed rules and procedures to accomplish the legislative goals.
Then the President notices that the environmental rules adopted by the agency are causing a major shortage of affordable electricity, or the handicap employment rules are interfering with employment programs for the handicapped that were working well and are supported by employers and customers. What can the President do? If he is the head of the Executive Branch of the Federal Government he should be able to say to the Agencies involved: Your Regulations and Procedures are causing the following Problems; amend your Regulations and Procedures to fix these problems. Or even: Amend them in such and such a way.
Under our Constitution, the President, as the sole head of the Executive Branch not only CAN do that, he SHOULD do that,
But if he does so, editorial writers and talking heads will call him a threat to democracy -- Even though the President was popularly elected and the faceless bureaucrats who wrote the regulations were not.; 2/4/25, 5:49 PM
Oso Negro said...: I was just thinking that the DOGE effort is the most exciting thing in government since we went to the moon; 2/4/25, 6:31 PM
mongo said...: I always understood that an independent agency is one that is not part of a cabinet level department. For example, I worked for NASA. It is considered an independent agency in that its administrator reports directly to the President and not, say, to the Secretary of Defense. It is still part of the Executive Branch.; 2/4/25, 7:24 PM
Earnest Prole said...: It’s really quite simple: Enact a vague law and presidents are free to interpret it as they wish; enact a specific law and presidents are bound by the Constitution to faithfully execute it.

Some lessons can only be learned the hard way.; 2/4/25, 8:26 PM
Rocco said...: Unitary is non-binary, right? And this thing is transgressive, right? I don’t understand why the lefties aren’t all behind this.; 2/4/25, 9:12 PM