Will Trump Convince the Supreme Court to Embrace an Expansive Unitary Executive Theory and Grab More Power?
The president is counting on that to get away with taking over independent agencies and installing loyalists to advance his crooked plans
Dear Readers:
Many of Donald Trump’s abuses of presidential power are clear-cut, based on well-recognized law and precedent. In other cases, though, he has been probing areas where the legal precedents have not been tested in many years, so there is more confusion about the limits of legitimate executive power. One of those areas is Trump’s attempt to exert control over independent executive agencies such as the Federal Trade Commission and the Federal Election Commission—calling into question whether there is such a thing as an “independent” executive agency.
This issue is now before the Supreme Court, which earlier this month stayed a lower court’s ruling that voided Trump’s firing of two heads of such agencies. The administration’s hope is that the conservative Court will overturn a foundational 90-year-old legal precedent that said Congress can limit the president’s power to fire the heads of agencies and shield them from politics. The case is scheduled to be decided by July.
The central question is whether the court will adopt an expansive version of a theory, long championed in some conservative circles, known as the “unitary executive.”
In an incisive and closely argued piece adapted from his essay published first in The Regulatory Review, New York Univeristy’s distinguished constitutional scholar, Peter Shane, makes the case that this would be a gross misinterpretation of the Constitution.
Robert Tracinski
Director of Executive Watch
During the first two months of his second administration, President Donald Trump claimed the power to fire at will four principal officers of independent agencies protected by statutes that prohibit their discharge except for good cause: National Labor Relations Board member Gwynne Wilcox, Merit Systems Protection Board member Cathy Harris, and two members of the Federal Trade Commission, Alvaro Bedoya and Rebecca Kelly Slaughter. On Feb. 18, 2025, Trump also issued an executive order entitled “Ensuring Accountability for All Agencies,” purporting to subject independent agencies to significant oversight by the Office of Management and Budget, which is part of the Executive Office of the President.
Under a 2020 Supreme Court decision, Seila Law v. CFPB, the Supreme Court interpreted Article II of the Constitution as guaranteeing presidents the right to fire at will the heads of agencies directed by a single individual, such as the secretary of a Cabinet department. What Trump is now asserting is the same power over the independent regulatory agencies, which Congress designed to be governed by bipartisan, multiple-member boards, protected against at-will presidential removal. If Trump succeeds in neutering these agencies’ independence, it will be because the Roberts Court embraces an embarrassingly specious version of the so-called unitary executive theory.
The modern independent agency design, which the U.S. Congress first adopted for the Interstate Commerce Commission in 1887, was intended to insulate agencies such as the National Labor Relations Board, the Federal Trade Commission (FTC), and the Consumer Product Safety Commission from politics and special interest pressures and hand them a degree of decision-making autonomy to make impartial decisions. To foster deliberation, members are protected by statute against being fired without good cause, and the relevant statutes typically provide that members will serve specific terms longer than four years and that neither major party can hold more than a bare majority of seats.
In contrast, President Trump’s campaign against agency independence is part of his undisguised effort to effectuate a radical dismantling of systems of checks and balances, and it goes hand in hand with his efforts to reshape the civil service, praetorian-ize the military, and staff the administration from top to bottom based on personal fealty, rather than qualifications and proven character.
Humphrey’s Executor versus Autocracy
If not for the prospect of the Supreme Court embracing the unitary executive theory, Trump would have to amend the U.S. Constitution to assert control over independent agencies. The constitutional reading he is relying on rejects the unanimous 1935 Supreme Court opinion in the seminal case Humphrey’s Executor v. United States. That ruling placed firm limits on an executive’s powers over independent agencies when it upheld the constitutionality of the Federal Trade Commission and held invalid President Franklin D. Roosevelt’s dismissal of an FTC commissioner, William Humphrey, without good cause and in violation of the FTC Act. The Trump administration has explicitly called for overruling Humphrey’s Executor, even though it was the product of a remarkable coalition of pro- and anti-New Deal Justices.
The theory behind Humphrey’s Executor is straightforward. It starts with the recognition that the executive branch of government draws on two streams of legal authority. Some of what it does involves carrying out powers vested directly in the president by the Constitution. Treaty-making and fulfilling the president’s commander-in-chief role are prominent examples. But most of what the executive establishment does—nearly all of what it does in domestic affairs—draws on authority that Congress has given to the executive branch by creating administrative agencies and assigning them missions, such as protecting the environment or enforcing civil rights. The core of independent agencies’ work in this respect involves both rulemaking, which the Humphrey’s Executor Court called “quasi-legislative,” and administrative adjudication, which it called “quasi-judicial.”
What the Court held in Humphrey’s Executor is that if an agency is of the latter kind—that is, the agency’s job description involves a mixture of quasi-legislative and quasi-judicial functions that are not within the president’s explicit Article II powers—then it is up to Congress to determine whether this kind of agency’s heads serve at the president’s pleasure. If such an agency’s role is essentially “to carry into effect legislative policies embodied in statute,” then Congress may protect its members against discharge except for good cause.
Against this entirely commonsense understanding, some proponents of the unitary executive theory insist on a vision of the Constitution that muddles the text, is weakly grounded in history, and ignores how executive power can easily metastasize into autocracy.
Many of today’s independent agencies, such as the Federal Communications Commission, were created at a time when Congress was giving executive agencies vast new powers, such as regulating the airwaves, which had obvious potential to be abused. The independence and bipartisanship of these agencies was part of a structural strategy Congress adopted to restrain such abuses and prevent the presidency from acquiring anything approaching dictatorial power. Moreover, before such agencies could bring their authority to bear on individual parties, the firms or individuals targeted would be entitled to formal administrative hearings, both to help assure fairness and to forestall precisely the possibility that the power of government could be used to reward friends and punish enemies.
That possibility is now playing out in real time.
Unitary Executive Theory’s All-Powerful President
The unitary executive theory rests on two foundational premises. The first is that the president, constitutionally speaking, is a one-person executive branch. The president, in the Court’s words from last year’s ruling on presidential immunity, is “the only person who alone composes a branch of government.” The second is that, in vesting “the executive power” in “a president,” the Constitution gave the president the entirety of the government’s executive power—not “some of the executive power, but all of the executive power,” in the words of the late Justice Antonin Scalia, who even italicized the words “some” and “all.”
Beyond these two premises, advocates of the unitary executive theory may differ as to the scope of the precise authorities that Article II confers. But virtually all advocates of the theory share a view that the Supreme Court embraced in a 5-4 decision rendered in 2020, Seila Law v. CFPB, namely that all executive branch personnel are “subject to the ongoing supervision and control of the elected President.” It follows, according to this theory, that the president must be able, directly or indirectly, to fire anyone in the executive branch. As noted above, Seila Law extended the president’s removal authority to the principal officer in charge of any single-headed executive agency, such as the Consumer Financial Protection Bureau. The Court held out the possibility, however, that multi-member bodies might remain as an exception to this rule.
President Trump wants to overturn the exception, so that he can fire independent board or commission members even without “good cause.”
The Constitution’s Checked-and-Balanced Executive
Given the practical and political implications of unitary executive theory, it is astonishing to see how little it lines up with the Constitution. First, it cannot be true that Article II gives the president not “some of the executive power, but all of the executive power.” Section 2 of Article II explicitly requires the Senate to participate in the executive powers of treaty-making and appointing so-called principal officers such as Cabinet secretaries. (Section 2 even leaves open the possibility that “Congress may by law vest the appointment of such inferior officers, as they think proper … in the courts of law.”) At most, Article II’s Vesting Clause gives the president whatever executive power is not otherwise constitutionally shared or regulated.
Even within the executive branch, the president is not the sole constitutional entity. One of the president’s Article II authorities is to “require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.” The executive branch is thus foreseen as involving “executive departments.” With regard to those departments, the president has the duty to “take care that the laws be faithfully executed”—that is, executed by others. The text certainly reads as if “departments” are distinct and separate parts of the executive branch in a structure that can be (and has been) mandated by Congress.
The unitary executive theory retort is that the “departments” are just assistants to the president, not holders of executive power. But that is not what Article II says. The text just mentioned posits that departments have been assigned “duties”—presumably assigned through statute by Congress. It would have been weird to spell out a presidential power to make department heads write out their opinions concerning duties that the president has assigned to them. Thus, although the Trump administration and the Court refer to agencies as working “on behalf of” the president, they are, constitutionally speaking, working on behalf of Congress.
If one is looking for a comprehensive grant of power with regard to government operations, it will be found not in Article II, which governs the executive branch, but in Article I, which empowers the legislative branch. Article I authorizes Congress “to make all laws which shall be necessary and proper for carrying into execution … all … powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” The most obvious reading of that language is that decisions as to how and by whom administrative functions shall be fulfilled—and whether administrators can be insulated from at-will removal—are subject to Congress’s determination as to what is “necessary and proper.” In short, read most straightforwardly, the constitutional text lines up perfectly with Humphrey’s Executor.
It is hard to credit the idea that the presidential removal power was central to the Founders’ interpretation of Article II when the issue went unmentioned at the Constitutional Convention. There is no indication that it played any role in ratification debates, either, and the First Congress sometimes placed administrative responsibilities in the hands of persons that the president could not fire.
The Right-Wing Dream of Presidential Power
The case is so strong for the correctness of Humphrey’s Executor—a decision regarded in 1935 as a conservative reading of presidential power—that one naturally wonders why, beginning with the Reagan administration, the unitary executive theory became a pet theory of the right. The most succinct and persuasive answer has been suggested by political scientists William Howell and Terry Moe. As they point out, every president wants to make a big mark and to move the country decisively in the directions promised in a presidential campaign. But such ambitions have different implications for progressive as opposed to conservative presidents.
Once Congress started enacting modern progressive legislation, especially from the 1960s onward, progressive presidents, usually Democratic, did not need to make bold constitutional arguments to accomplish their domestic goals. Their administrations could argue instead for generous readings of the statutory powers that Congress had already given them.
If, however, a president’s agenda is to hollow out government—to incapacitate agencies from implementing their legislative duties in a vigorous way—that president cannot rely on statutory power alone. Congress has not authorized the president to undo the administrative establishment it created. Thus, radically disruptive presidents of a Trumpian sort have to argue that their “executive power” includes more than the duty to take care that the laws be faithfully executed. They have to argue that, as a one-person branch of government, the president possesses the authority to restructure government, to narrow the reach of law, and to resist efforts by the other branches to check presidential initiative.
Before the Trump administration, the main debate, both judicial and academic, over unitary executive theory was focused almost entirely on presidential power to remove certain executive officers. But President Trump wants to take it further. His Feb. 18 executive order would require independent agencies to clear their regulatory actions with the Office of Management and Budget, align their program expenditures with the president’s policy priorities, and meet performance standards and management objectives prescribed by the White House. Such compliance, of course, would be the opposite of independence.
As radical as this seems, it is easy enough to see how President Trump is connecting the dots between the one-person executive branch idea and his unprecedented claims of entitlement to control every aspect of administrative government. If the president alone is the executive branch, then any delegation of authority by Congress to an administrative agency begins to look advisory. Congress may want the executive branch to do “something.” It may prefer for that “something” to be the task of a particular agency. But if the president is a one-person branch of government, then, constitutionally, it arguably follows that the president is entitled as possessor of all the executive power to take over an agency’s mission or even assign it to another agency. Indeed, at least some unitary executive theory champions explicitly argue something like this. If that is true, then what any administrator does depends not just on what authority Congress has delegated to the executive. It depends on the president’s willingness to leave that delegation in place and not take over personally. As pithily explained by the sociologist Kim Lane Scheppele, an expert on authoritarianism, “under the unitary executive theory, agencies no longer trace their primary constitutional authority to congressional delegation of its legislative powers but instead to presidential delegation of his executive power.”
This is why President Trump thinks he can close agencies he does not like and put their authorities elsewhere. This is why President Trump thinks he can tell agencies not to spend congressionally appropriated dollars. This is why President Trump thinks he can convert all of the executive branch into an army of lickspittles. If Congress cannot regulate his supervisory power, and if his conduct, no matter how corrupt, can never be the target of prosecution, why not?
Kavanaugh to the Rescue?
President Trump’s apparent hope is that the Roberts Court will give him the control he craves over every corner of the administrative state.
But the radical implications of such a ruling should give us pause. It would, for example, undermine the independence of the Board of Governors of the Federal Reserve System, a decision that could destabilize both domestic and global markets. Yet it is difficult to see how Humphrey’s Executor could be overruled without invalidating the Federal Reserve’s independence. President Trump’s executive order tries to navigate this difficulty by controlling only the Federal Reserve’s “supervision and regulation of financial institutions,” but not “its conduct of monetary policy.” But members of the Federal Reserve cannot be half-fired, half-empowered.
It is also noteworthy that, as a judge on the U.S. Court of Appeals for the D.C. Circuit, Justice Brett Kavanaugh offered a strong argument for treating multi-member agencies differently from single-headed agencies. Indeed, all the independent agency virtues I mentioned at the start of this essay are acknowledged in his opinion. One cannot yet know whether he regards his arguments as sufficient when push comes to shove to draw a constitutional line between single-headed and multi-member agencies for removal purposes. But if he should take that view, and at least one other conservative Justice unites with the liberals, Humphrey’s Executor could survive.
The Roberts Court has already shown itself to be the most executive-indulgent Court since World War II, and we know where President Trump is placing his bet. Those who would prefer a more pluralist democracy—one that retains multiple, counterbalanced sources of power—can hope only that this gamble comes to naught.
An earlier version of this essay was first published in The Regulatory Review.
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