Executive Power

Rethinking the Unitary Executive

The originalist case for a unitary executive falls apart in an era when many of the powers wielded by the executive branch were not originally supposed to be federal powers in the first place.


If there is one thing that most conservative and libertarian originalists agree on, it is that executive power under the Constitution must be "unitary." That doesn't necessarily mean that the president's power is unlimited, or even particularly broad. It does mean that whatever authority the executive has must be controlled by the president. He is free to hire, fire, and issue orders to all other executive branch officials, as he sees fit—except in a few cases specifically noted in the Constitution, such as the requirement of Senate confirmation for cabinet officers. This issue came up recently when the Senate Judiciary Committee voted to approve a bill that would protect special Counsel Robert Mueller from being fired by President Donald Trump—the man whose activities and assciates Mueller is charged with investigating. The bill passed the Committee by a 14-7 vote. But several GOP senators—including some, like Ben Sasse, who are no fans of Trump—voted "no," citing constitutional considerations based on unitary executive theory.

For a long time, I too accepted the theory of the unitary executive. But I am no longer convinced. In this post, I try to explain where I went wrong, and why I hope others will reconsider the issue as well.

Unitary executive theory is sound up to a point. But it does not hold true in an era when much of the power wielded by the executive branch is authority that the original meaning of the Constitution never gave the federal government in the first place. Allowing such a massive concentration of authority in the hands of one man is dangerous. And it does not nothing to enforce the original meaning of the Constitution.

In some ways, the originalist case for a unitary executive is as compelling as ever. Article II of the Constitution states that "The executive Power shall be vested in a President of the United States of America." It does not say that executive power can be divided between the branches of government or given to bureaucratic agencies independent of presidential control. This strongly implies that he is supposed to have all the power given to the executive branch, except such as is specifically allocated elsewhere in other parts of the Constitution. Much evidence from the Founding era suggests that this is indeed how things were understood at the time, though some scholars argue otherwise.

If the executive branch still wielded only the relatively narrow range of powers it had at the time of the Founding, the case for the unitary executive would be very strong (at least on originalist grounds). Unfortunately, however, the current scope of executive authority goes far beyond that. To take just one particularly noteworthy example, the president now presides over a vast federal law-enforcement apparatus, much of it devoted to waging the War on Drugs (which accounts for the lion's share of federal prosecutions and prisoners). Under the original meaning of the Constitution—and the dominant understanding of the first 150 years of American history—the federal government did not have the power to ban in-state possession and distribution of goods. That's why it took a constitutional amendment to establish federal alcohol Prohibition in 1919. Giving the president control over the waging of the federal War on Drugs is giving him a power the federal government was never supposed to have in the first place.

The same holds true for a great many other powers currently wielded by the executive branch. The original Constitution does not authorize the federal government to regulate nearly every aspect of our lives to the point where we have so many federal laws that a large majority of adult Americans have violated federal criminal law at some point in their lives (to say nothing of civil law).

There is nothing originalist about giving the president such unconstitutional powers. If "executive" power is the power to "execute" federal laws authorized by the original meaning of the Constitution, it does not apply to powers that have no such authorization. The only way to truly enforce the original meaning in such cases is to remove such authority from federal hands altogether. But if we cannot or will not do that, there is no reason to think that giving the power to president is any better—from an originalist point of view—than lodging it somewhere else. Either way, someone in the federal government will be wielding power that they are not supposed to have under the original meaning of the Constitution.

In many cases, it might be more in the spirit of the Founding Fathers to divide this overgrown authority than to give it all to the President. After all, the Founders repeatedly warned against excessive concentration of power in the hands of any one person. They would be especially appalled to see it in the hands of of an office whose occupant is now selected by a far more populist selection process than the Founders intended, and therefore more likely to be a dangerous demagogue.

In sum, at least when it comes to the distribution of power that was never supposed to be in the hands of the federal government in the first place, there is no good originalist reason to give it to the president, as opposed to anyone else (assuming that the power will be in federal hands at all). That does not answer the question of exactly which nonoriginalist powers should be insulated from presidential control and which should not. But it does suggest the question cannot and should not be answered by reference to originalist unitary executive theory. It also suggest that originalists should prioritize reducing the scope of executive power over restoring unitariness. Indeed, the former is the only safe (and originalist) way to enable the former.

Obviously, not everyone is an originalist. Many nonoriginalists comfortable with the current scope of federal power, and oppose efforts to bring it closer to its original scope. But if you are a nonoroginalist about the scope of federal power, you also have good reason to be a nonoriginalist about its distribution. Given the enormous authority of the modern executive branch, it is dangerous to concentrate all of that power in the hands of any one man—especially in an era when James Madison's warning that "Enlightened statesmen will not always be at the helm" seems more prescient than ever.

Conservatives who think that Trump can be safely trusted with such vast unitary authority should ask themselves whether they feel the same way about Barack Obama or Hillary Clinton, both of whom were condemned on the right (sometimes justly) as lawless abusers of power. I suspect most such conservatives do not expect Democratic presidential nominees in future elections to be significantly better.

The above does not, by itself, prove that the dissenting senators were wrong to object to the Mueller bill on constitutional grounds. After all, investigation and prosecution of corruption and lawbreaking within the executive branch (the main object of Mueller's investigation) is not a new federal power, but one that already existed at the time of the Founding.

But the growth of executive power far beyond its original bounds is still relevant to the Mueller question. Letting the president have near-total control over investigation of his own and his close associates' possible wrongdoing may well have been tolerable at a time when the scope of executive power was relatively modest, thereby limiting the potential opportunity for abuse and corruption. The danger posed by a corrupt or lawless president is far greater in an era when the office has vastly more power.

That makes it more defensible to insulate investigation of high-level executive wrongdoing from presidential control, even if such insulation carries risks of its own, as famously elaborated in Justice Antonin Scalia's dissent in Morrison v. Olson (cited by some of the congressional opponents of the Mueller bill). When it comes to investigation of the the executive branch's own wrongdoing, the originalist theory of the distribution of executive power may be heavily dependent on confining that power to its original scope. Enforcing the latter without enforcing the former may be both dangerous and a perversion of the Founders' work.

There might still be valid grounds for opposing the Mueller bill. For example, it could be that political pressure is enough to prevent Trump from firing Mueller or otherwise stifling the investigation (it seems to have worked so far). But the issue cannot turn on a simplistic application of unitary executive theory.

Whatever we ultimately think of the Mueller bill, the broader lesson here is that it is a mistake to enforce the originalist view of the unitary executive in an era when the power wielded by the executive branch has grown far beyond its original bounds.

UPDATE: I perhaps should have mentioned the oft-made argument that maintaining a unitary executive—even when it comes to powers beyond the scope of the original meaning of the Constitution—is desirable because it enhances political accountability. Even if true, this claim is about what is pragmatically desirable, not about the text and original meaning of the Constitution. But the claim is dubious even on its own terms. The greater the scope of executive power, the harder it is for rationally ignorant voters to keep track of more than a small fraction of it. Moreover, it becomes difficult to figure out how to weigh the president's performance in one area against what he does in others (assuming there is variation in quality, as will often be the case). It is therefore unlikely that concentrating a vast range of power in the hands of one person does much to enhance accountability. I discuss the tradeoff between accountability and scope of government power in somewhat more detail in my book Democracy and Political Ignorance: Why Smaller Government is Smarter.

UPDATE #2: While not directly addressing the issue of whether executive power should be "unitary," this recent article by John Dickerson is an good discussion of how the growth of presidential power, combined with rising public expectations, has created a range of pathologies.

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  1. Trump has got inside your head and is doing you serious damage. You can’t stand Trump, we get it. But “because Trump” is not an originalist argument. You really need to take a cold bath.

    1. I think you may have missed the part(s) where prof. Somin said that this was not an originalist argument.

      1. What I missed is the part where Somin explicitly admits to having become a Living Constitutionalist. I guess he felt the implication was enough.

      2. Where’s that part, Martinned?

        On the contrary: Ilya is is arguing that a certain originalist argument fails on originalist grounds. H’e’s expressly making an originalist argument.

    2. I was going to post my own rant, but you’ve short-stopped me. If what you’re saying is true, and I think it is, then my point is moot. So yeah, what he said.

  2. I thought the term “unitary executive” originally meant that we have one president, not three or five co-Presidents.

    In any case, as to the power of the President to fire executive-branch officials, I know many (not all) of the Founders thought the Pres had this power, and that the Supreme Court agrees the Pres has this power. I know I *want* that interpretation of the constitution to be the correct one.

    If Congress can protect executive-branch officials from being fired, that could help entrench the Sir Humphrey Appleby types in the civil service. Which is not a good thing in a government that’s supposed to be representative. And then there’s the problem of administrative agencies.

    The thing is that the arguments against the Presidential firing power seem more persuasive to me – it’s not among the specifically listed powers of the President and has to be inferred from the “executive power” clause, making that clause into a magician’s hat from which you can pull whatever you want on the Pres’s behalf.

    So in one sense I’m glad I’m on the losing side of this argument (except re administrative agencies, where, sadly, I’m on the winning side), but winning this victory seems to come at the expense of some twisting of the constitution.

    But if I can be shown to be in error I would be greatly relieved.

    1. And the answer to the federal government having too much power is to insist they give up that power, unless they can persuade the people, via constitutional amendment, to give that power to them.

      1. Exactly! If the Constitution doesn’t give the federal government a power, NOBODY in the federal government can legally exercise it, singly or in concert.

        1. Thank you. To accept this argument in points out two things:

          1. You acknowledge the growth was unconstitutional. Hence the solution is rolling back the powers rather than assigning them to some other branch, which is equally unconstitutional. Doubly-so given it’s politically motivated to do the switching.


          2. The growth was constitutional, but the assigning to the executive was not. But this amplifies the political nature of the desire to switch, which amounts, again, to constitutional changes motivated by politics and, in any case, not made via amendment.

    2. Hang on, it is now a bad thing to have an expert civil service who loyally serve democratic and republican administrations equally? I’ve always thought that the American habit of replacing thousands of top-level officials at the start of every new administration was reminiscent of a banana republic, not a properly functioning country.

      1. It would be great to have loyal, expert civil servants.

        Not every civil servant meets these exalted qualifications.

        Some are disloyal, some are incompetent.

        It is whispered that disloyalty and incompetence can even be found, at times, in the higher reaches of the bureaucracy.

        Which would suggest that there ought to be some authority who can decide which civil servants are loyal and expert and worth retaining, and which aren’t.

        In a representative government, that authority should be the chief executive.

        But as I say, I’m not certain the constitution supports me in this.

        1. It would be great to have loyal, expert civil servants.

          One thing that makes this hard is that we have a major political party that treats it as an article of faith that all civil servants are incompetent time-servers, who do nothing but interfere with more productive members of society.

          Seems that this would be a serious disincentive to experts who would like to serve the country.

          Just saying.

          1. The Republicans can say what they want, but I haven’t really seen a lot of signs of civil-service-cutting austerity from them. Did I miss it?

            1. No. You didn’t, though they do have a bad habit of replacing actual qualified people with shills, with the ridiculous Scott Pruitt being the prime, but not only, example.

              1. Pruitt is Trump’s best executive appointment, personal spending concerns pale compared to his rolling back of EPA excesses.

                Pity he is not Attorney General.

              2. IIUC bernard is more upset that his preferred shills were replaced by the other parties shills.

            2. Oh, it’s there, just more in the form of spite than austerity – unexplained cuts to the IRS, EPA, State…CFPB wants to move all of theirs to be basement!

              1. Republicans accuse Dems of cutting the military to the bone. I’m not sure that’s accurate, either.

              2. Why do cuts have to be explained? I’d prefer the department to justify their spending levels instead. But Schumer blocked a bill for departments to do that. Odd.

          2. “all civil servants are incompetent time-servers”

            Not true, only some are both incompetent and time-servers.

            Three types of bureaucrats:

            1. Lazy
            2. Stupid
            3. Stupid and lazy

            Prove me wrong.

            1. Three types of bureaucrats:
              1. Career
              2. Just a job
              3. LIFER (Little Insecure F***er Evading Reality)

      2. Sure. But how to you make sure the the civil servants are experts who are loyally serving democratic and republican administrations equally?

        1. By not treating them with universal mistrust from the get go, for one.

          1. You start by making the job attractive, and not assailing them with a constant stream of insults and babbling about a “deep state.”

            You also respect their expertise and don’t ignore or demote them when they reach conclusions that don’t support your agenda.

            1. So, by babbling about a non-existent Deep State, he actually creates it?

            2. Why do you require blind respect and a deference that they are experts? That is a silly premise to start from.

          2. That gets the causality backwards. The right treats the bureaucracy with universal mistrust because the bureaucracy has already chosen it’s side in American politics. They scarcely even pretend otherwise at this point.

      3. The owl of Minerva has dropped a big turd on Woodrow Wilson’s Hegelian dream of a universal class of disinterested civil servants. Public choice economics should have disabused you of that nonsense by now.

        1. That’s the thing about public choice theory. It has a Heisenberg uncertainty principle-style effect on the thing that it studies.

      4. Yes, for some of us it is a bad thing to have an expert civil service. The “who loyally serve democratic and republican administrations equally” is a false choice, a red herring, given that one of those parties favors an ever-increasing number of civil servants sticking their noses into an ever-increasing number of orifices of the body politic and the other favors (or at least pays lip service to) the idea that the role of government needs to be cut way, way back. Reminds me of the number of people – oddly enough almost exclusively Democrat – who claim that gun control “for the children” shouldn’t be a partisan issue.

      5. Who is it that that “expert civil service” is loyal to? America and Americans generally? Or to their own narrow self interest? Why should public employees be assumed to be any more selfless than anyone in the private sector? Anyway. why should those civil servants be exempt from control by the voters?

    3. I may be mis-informed, but I thought the fight that ended in Andrew Johnson’s impeachment was over exactly the ability of the Congress to restrict the President’s ability to fire appointed officials. And that the resolution of that was the Congress does not have that authority.

  3. Sorry, Ilya, but I fail to see how arguments over what powers the federal government should wield (where I am in substantial agreement with you) sheds any light on the question of how those powers should be divided once acquired. The more federal power is divided the less accountable it is going to become with every (political) player able to point at someone else and say “don’t blame me for that, it wasn’t my decision and I have no ability to reverse it”.

    The point of a unitary executive is that ultimately so long as a choice is within the law the president is ultimately responsible for making it. And if the choice proves unpopular enough the president is free to change it, the bureaucrats be damned.

    1. By that logic, why not do away with separation of powers entirely? After all, separation of powers already results in Presidents knowingly signing unconstitutional laws, blaming Congress for passing them and pointing at the courts for the responsibility to strike them down, while Congress does nothing about the President’s unconstitutional actions because they, too, point at the courts. Why not make them all properly accountable by making them all answerable to the President?

      1. Agree with the problem, but the right way to make everyone accountable is to give the Supreme Court the power to remove a president who doesn’t follow its orders. And then make the Court accountable by giving the public the ability to recall its members. Of course, both of those require constitutional change.

        While we’re at it, we should fix the court’s size so that it can never be packed. Then it can start the job of taking away the Oval Office’s, and Congress’s, illegitimate powers itself.

        As far as the conflict of interest when a president can fire the cop investigating him — Congress has had this power since the Constitution was written (because the only police who can operate in the Capitol or congressional office buildings are the US Capitol Police, who answer to Congress and nobody else). If they get that kind of immunity, why shouldn’t the president get it too?

        1. There are too many wrong things in there for me to comment on them all, but as to the last one: how about giving neither of them any kind of power to police themselves? Crazy idea, I know…

        2. Co equal branches? So do you envision reciprocity. The executive can get rid of a scotus judge or three? maybe boot a couple of senators? Etc, etc, etc.

      2. The simple answer is that the President is the only elected member of the executive branch (an analogue to the Professor’s argument could be made that since A3 Judges have increased in power their lifetime appointments are also no longer proper on originalist grounds). Congress is also elected.

        The flaw in the thrust of the argument is not that its wrong that there is too much power in the President’s hands, but he is wrong that it is not the most-originialist position, merely because there is no other alternative.

        We could amend the constitution to elect heads of various departments like the Attorney General, but that isn’t even one of the major expansion’s of the President’s power. In this, the Professor is conflating two very different things. On one hand it is true that we have huge, unconstitutional/non-originalist programs like Social Security, Medicare, Medicaid, and and agencies like HUD, the EPA, ATF, etc. But no one is calling on making those areas “non unitary”. Instead it has consistently been the DOJ. Guess what is totally orgininalist: The Post of Attorney General serving at the pleasure of the President (Act of 1789), also the DOJ was formed in 1870 to better enforce legislation passed to enforce the 13th, 14th, & 15th Amendments.

        So the argument makes very little sense at all.

  4. If Government has grown so big it is beyond the bounds of Constitutional control then of course the right solution is to trim back government so it is within the bounds of Constitutional control. Of course for many on the left, and some on the right they don’t want meaningful controls on government, when they are in charge of course. And when they aren’t in charge it needs to be hobbled, but not dismantled so they can take off the hobbles when they get control.

    What we need is a right wing President and bureaucraZy that starts throwing dissenters into camps and engineering wholesale confiscations of property for an oligarchy, etc, etc. Then the left wing will realize why we need robust constitutional limits on the Federal Governments power. If a left wing Administration did that then they and the media would be cheering them on, so that’s a more dangerous problem. In fact the lesson they would probably take from that is, they need to grasp all the levers of power so they can impose their own despotic regime, not that despotic regimes are bad.

    So maybe the best case scenario is that the Trump Administration does go over the edge, but he’s stopped by by right wing militias that then dismantle our mega government that is too big to fit within the constitution, not a left wing resistance that just wants to keep the power they’ve usurped for themselves, which is the more likely result.

    1. Why “of course”?

      I could understand that conclusion if you believe that the Constitution is holy writ, that the people exist to serve the document and not the other way around.
      But if you believe that people matter more than parchment then why would you summarily dismiss the possibility that the Constitution can be improved to serve them better?

      1. “But if you believe that people matter more than parchment then why would you summarily dismiss the possibility that the Constitution can be improved to serve them better?”

        There is a defined process for improving the constitution. If you think the constitution needs to be improved to serve the people better than follow that process.

        However, what do you do if you believe that the government has been largely ignoring the constitution for decades to serve it’s own interests against the interests of the people?

        1. I’m not arguing for one answer or the other, not yet anyway. There is definite merit in the argument that the unitary executive was a workable arrangement when the President was weaker but not as the office has been accumulating power over the years. And before anyone asks, yes, Obama waging war without a declaration from Congress is a big contributor to that progression. I tend to agree that winding back the clock would help, but how do we get there from here? And once we do, isn’t it a sign of a problem with the Constitution that it was susceptible to being undermined in the first place, and it needs fixing?

          I think there would be fewer problems with the Constitution if it were easier to amend. Holes an ambiguities will be found in any document that lasts over two centuries, but if the open, consultative, democratic process for resolving those ambiguities is too hard to execute then the only option available is to let the courts do it. And that leaves some citizens understandably frustrated that the literal text says one thing but the courts interpret it to mean something different.

      2. “Of course” it’s also possible to follow the UK’s lead of having a “constitution” then just ignoring it, and doing anything you damn well please. But they at least are saved from the embarrassment of acknowledging that fact because their constitution is unwritten and there aren’t any hard and fast rules for changing it. So just ignoring it seems to be the best way to amend it.

        But in any case, if not having a firm constitution that is hard to amend is such an advantage then surely that advantage would be apparent by now. The UK or the EU, or Canada or Russia would have vastly outstripped the US in terms of GDP, longevity, public health, etc, etc. None of those have happened. While there may be marginal differences in some of those measures, that has much more to do with demographics than a superior or more flexible government.

        1. Large parts of the UK constitution are written, they are just not all collected in one place. The term to describe this is “uncodified”. Maybe you meant to contrast the fact that part of it consists of precedential judgments, unlike the US constitution that requires no interpretation. I mean, you can find the words “abortion” and “arms for personal protection” right there in the text can’t you?

          Actually a big difference is that no part of the UK constitution is “special”, in the sense that it is superior to other acts of Parliament or has special rules that make it very difficult to change. That has sometimes been an advantage. It’s good that no part of the Magna Carta is still in effect, I mean have you read the thing?

    2. You really think if a liberal admin started throwing dissenters into camps, the media would cheer them on?!

      1. Well the Democratic President who threw people in to camps based on their race is still lionized as the Greatest Democratic President ever, including by the press. If you look at the UK, the press is certainly applauding arresting and jailing people for their speech. Look at the Press’ reaction to the Geert Wilders trial in the Netherlands.

        So yes, I think the media would go along, and certainly a large cohort of “intellectuals” on college campuses including both professors and students.

        1. Moment of your examples come close to supporting anything like what your talking about.

          I didn’t think you were one of those delusional about the other side…:-(

          1. Well actually the Roosevelt example is even worse than rounding up dissenters and throwing them in camps. That was just on the basis of race without any overt act like dissent.

            But I may be over sensitive on the subject because my xwife was Japanese American, and my kids are half Japanese.

            If the Democratic party and the press had repudiated Roosevelt, rather than just a week kneed, “well you had to have been there”, or if the Supreme Court stood up to Roosevelt, who had appointed 7 of its 9 members, then I might say it doesn’t really apply.

            1. Oh, FDR. I’d thought you were on about Wilson.

      2. Or a liberal admin having his DoJ issue warrants to unfriendly journalists?

        1. Sigh.

          What are you talking guys about this time, Jesse.

      3. Oh yeah, I also forgot about the “Climate Change Denial Should be a Crime” movement.

        Just do a search on Google for “should climate denial be a crime”, you’ll see hundreds of approving articles in the media endorsing the idea. If that isn’t cheering on “throwing dissenters into camps”, then I don’t know what is.

      4. Do a search for “jail climate change dissenters” and look at some of the responses. Mainstream NBC, no but MSMBC perhaps.

      5. Of course they would.

        Remember Waco? The media cheered them on then, as they tortured and then slaughtered a religious community, repeating every story the government put out, and meekly accepting the need to cut off the Davidians from any uncensored communications with the outside world.

        The Davidians started hanging banners to get past the government’s jamming of their radios. The government responded by moving the press out of line of sight, so they couldn’t read the banners. And did the press complain? Not that I recall. Not even when they caught sight of that “God help us, we want the press!” banner.

        The press didn’t want them, after all.

        Yeah, if a liberal administration started throwing dissenters, “Neo-Nazi terrorists!” into camps, the media would cheer them on. In a heartbeat. And they’d uncritically repeat every lie that was told to justify doing it, and suppress every contrary fact that made it out.

        Because the press have chosen their side, and so far as I can see, have no regrets.

  5. Holee sheeit. I never thought I’d see the day that Somin advocated for a Bureaucracy Branch of the US govt.

    1. …that’s one way to describe controls from one elected branch on another elected branch. A wrong way, but still, a way…

    2. Well, at least he acknowledged the dubiousness of the political accountability argument in support of unitary executive.

      1. How does removing power from the president increase political accountability? How does reassigning power to different branches based on politics sans amendment increase accountability?

        No, no! Nothing here adds up at all!

  6. Here in Texas, we have a non-unitary executive — I won’t argue that it’s either a good or bad thing. On the state-wide ballot, elect the Attorney General, the Comptroller, the Agricultural Commissioner and the three members of the Railroad Commission. (The Railroad Commission regulates the petroleum industry but no longer has anything to do with any other transportation.) The constitutional intent since the late 19th century was to keep the governor’s office relatively weak. Besides the independent state officials, there are quite a few boards and commissions and boards whose leaders are nominated by the governor for fixed terms, subject to Senate approval, and who are not removable. We also keep the legislature weak, by only permitting them to meet for 140 days in alternate years. Consequently there are significant administrative powers vested in these independent agencies.

    As long as governors served two-year terms they in fact remained fairly weak, but now with four year terms and unlimited re-election, governors gain influence thru the loyalty of their nominees.

    1. Most states have plural executives to one degree or another. Local governments are even more ‘mixed’ in terms of seperarion of powers. But state constitutions are different than the federal constitution.

    2. “we have a non-unitary executive ”

      Every state does. Texas and other southern states seem to have more [and unique types] separate elected execs but Ohio has a separate elected AG, Secy of State, Treasurer, Auditor

  7. As surely as the sun will rise tomorrow, formerly principled legal theorists posit that their thinking has changed “because Trump.”

    1. You’d rather that people ignore new evidence?

      1. I’m not sure if that’s sarcastic, but what is new about having a President who is egocentric, throws his weight around, and maybe has too high an opinion about his own powers and capabilities?

        1. You mean, like every President?

      2. There is literally no evidence Trump could provide that would change the meaning of the unitary executive clause.

        1. Sure there is. As all conservatives used to agree, the constitution is no suicide pact. So if the people (well, some of them) are willing to elect a dangerous lunatic president, maybe the president should have unconstrained power.

          1. But, what conservatives mean by “The Constitution is not a suicide pact.” is that it literally isn’t a suicide pact. Following it wouldn’t be suicidal.

            What the left means by the same words is the opposite: That the Constitution IS a suicide pact, and as such should be broken.

          2. What unconstrained power? He can still be impeached. I fail to see any merit to your argument.

  8. In the same way one is free to dismiss the internal objections of one’s own conscience, it naturally follows for the federal executive.

    The point of all this is introspection, not another political battle.

  9. There’s already an answer for investigating wrongdoing in the Executive Branch; the Congressional powers of investigation. If Congress wants to designate agents to exercise such powers on its behalf, it would be entirely reasonable for it to do so. While the usual agents are designated committees, they could reasonably create an entire Congressional Investigative Service if they liked.

    However, Congress cannot also decide to delegate any of the proper, originalist-scope powers of the unitary executive to such desingees. Even if the President cannot fire them, he can refuse to share his powers with them.

      1. “Separation of powers” is inherently formalist, since it cares not what is done, but merely who has the right to do it. If you allow Congress to delegate the powers of other branches to persons not responsible to those branches, you’ve thrown away separation of powers.

        1. Another appearance by my impersonator, Bigoted Wingnut Authoritarian Mini-Me.

          (Prof. Volokh — is that you? Is this how you wish to communicate with me and others, by misappropriating my password? Yikes!)

          1. If you think alternate AK could possibly be EV, then you’re even dumber than anyone could have possibly imagined.

            1. That’s not true!

              I fully believe that the not-part-Cherokee version of me could be so dumb as to think that EV is hijacking his account.

    1. Hello again, Authoritarian And Bigoted Right-Wing Mini-Me. Your devotion to impersonating one of your betters is, an a way, a sign of hope for you.

      I can’t tell yet which of the faux libertarians you are, but I am beginning to sense that I will figure it out.

      Until then . . . carry on, clinger.

      1. In addition to yourself (Arthur L. Kirkland) and your prime doppelganger (Arthur ?. Kirkland) be on the lookout for these other possible denizens of the Multiverse:
        Arthur ?. Kirkland
        Arthur ?. Kirkland
        Arthur ?. Kirkland
        Arthur ?. Kirkland

    2. It isn’t even the investigatory powers, or oversight, of congress that Ilya is ignoring because of “but Trump.” Ilya is so caught up in “but Trump” he forgot there is still the impeachment powers of Congress.

  10. By the same reasoning, there’s nothing wrong with executive agencies writing laws, because they shouldn’t have such extensive power in the first place. I’m not sure “embrace the slippery slope” is a good school of constitutional interpretation.

  11. So, a “two wrongs make a right” argument gets you a spot as a Conspirator?

    Standards are falling around here.

    1. Mr. Post disease has spread to Mr. Somin apparently.

  12. I have tremendous respect for Professor Somin, however, this entire essay is an eloquent argument for drowning the federal government in a bathtub.

    If the foundational rules of our democracy are no match for the size and breadth of our government, then one of them has to go and I vote for the Constitution.

    1. I go the other way. I said here (well at WaPo comments, but whatevs) that the President is a clerk. Well, not quite… he’s a clerk with an army and a foreign policy. But for some reason, people want to him to lead them, so he has to be more than a clerk. I still don’t know why. Our government can have enormous size and breadth without the Federal Government having enormous size and breadth. I’ll stick with the Constitution…

  13. “I perhaps should have mentioned the oft-made argument that maintaining a unitary executive – even when it comes to powers beyond the scope of the original meaning of the Constitution – is desirable because it enhances political accountability. Even if true, this claim is about what is pragmatically desirable, not about the text and original meaning of the Constitution”

    Of course the irony here is that Ilya’s post is itself only about “what is pragmatically desirable” and not about “the text and original meaning of the Constitution.” This is a surprising lack of self-awareness on the part of the author, or dare I say “political ignorance”?

    1. So you, too, missed the parts where prof. Somin explicitly said that this was not an originalist argument?

      1. Saying “this is not an originalist argument” does not immunize one from criticism for lazy reasoning.

      2. Wrong again, Martinned. Somin explicitly said he’s making an originalist argument.

  14. Ilya,
    Basically, your argument boils down to insufficient enforcement of limited federal powers + insufficient enforcement of anti-delegation means we should rethink unitary executive.

    You have a heart made of ice Mr. Somin, and so we’re going to melt your icy heart with a cool island song:
    I guess you have to have a problem
    If you want to invent a contraption
    first you cause a train wreck
    And then you put me in traction
    well first came an action
    And then a reaction
    But you can’t switch around
    For your own satisfaction
    Well you burnt my house down
    Then got mad at my reaction

    Well in every complicated situation
    There’s a human relation
    Making sense of it all
    Take a whole lot of concentration
    Well you can blame the baby
    For her pregnant mom
    And if there’s one of these unavoidable laws

    It’s just that you can’t just take the effect and make it the cause

    Well you can’t take the effect
    And make it the cause
    I didn’t rob a bank
    because you made up the law
    Blame me for robbing peter
    Don’t you blame Paul
    Can’t take the effect
    And make it the cause

  15. Congress, which has the impeachment power, has primary responsibility for investigating the President. It is the check Professor Somin claims is missing.

    1. I suspect it’s not so much missing from the argument as just wildly irrelevant. (And more so with every passing year.)

      It’s in the same bucket as a constitutional amendment: Theoretically possible, but never going to happen in any case that is remotely controversial.

      1. It’s not irrelevant at all. It’s exactly as it should be.

    2. That’s like taking care of mosquitos with a battleship though.

      Congress isn’t going to impeach a president because of administrative actions they disagree with (e.g. Obama’s transgender letter).

      1. If Congress doesn’t take an Executive Action as an impeachable offense, then nothing should be done to constrain said action. That is the check on the Executive that is in the Constitution. They can seek to add more checks if they want to, but it needs to be done through Amendments.

    3. So the House could, in theory, hire Mueller and giver him the exact same job responsibilities?

      1. Why not? Congress has a well-established investigative power.

        Further, by the traditions of the common law, private persons can bring prosecutions. That got restricted for federal cases by the Supreme Court in Linda R. S. v. Richard D., but there’s no particularly solid originalist argument for that limitation. If that is reversed, or Congress passes a law to create the standing which the courts said private citizens lack, a Congressional investigator could take the evidence gathered using the delegated Congressional investigative power and go before a grand jury and seek an indictment with it.

        In which case we then have created a “special prosecutor” with full powers to investigate and indict, entirely independent of the executive, and completely consistent with originalism.

        1. I agree.

          For the House to impeach, it is necessary and proper for it to be able to invedtigate allegations of wrongdoing.

  16. It’s a big argument for a small thought.

    You are essentially trying to have two wrongs make a right.

  17. While the entire post is problematic, its major problems boil down to two problems:

    1. Nowhere in this article is a better alternative presented. If not the President, where should the power rest? Do you want an elected Secretary of State? Head of the EPA? FBI? Should the unelected members simply have control? Without at least answering these questions, your argument is DOA.

    2. Even if the powers of the Federal Government and thus the President have massively expanded, originalist arguments against the unitary executive are inapplicable in the one realm they are always made: Justice. The Attorney General has been serving at the pleasure of the President (Act of 1789), also the DOJ was formed in 1870 to better enforce legislation passed to enforce the 13th, 14th, & 15th Amendments, the heads of that department again serving at the pleasure of the President. If Prof. Somin were arguing that it is not originalist for the unitary executive to claim power over the head of the EPA because that power is inherently not an originalist power, I’ll lend my ear, but no one makes that argument.

    In fact, the most non-originalist thing present in the arguments relating to cases that question the unitary executive is that in most of those cases, the crimes being investigated are non-originalist crimes like campaign regulations, banking, wire fraud, etc.

    So the argument makes very little sense at all.

    1. If not the President, the power over at least some agencies should lie where Congress places it. Realistically, that means making some officials difficult or impossible to fire, in order to give them the same kind of protection as judges.

      1. “making some officials difficult or impossible to fire, in order to give them the same kind of protection as judges.”

        Great, we already have an out of control judiciary, you want to make the bureaucracy immune for the people’s control too.

      2. Ah, so you want to expand lack of accountability.

      3. This was Sen. Warren’s idea about the Consumer Financial Protection Agency. Create an executive organization that can exercise the police powers of the State without any further accountability to the sovereign.

  18. You could have just said because….Trump law.

  19. I have never been a fan of unitary executive theory specifically because of many of the reasons you state.

    That said it is amusing to see so called “libertarian” Volokh professors abandon their noble “FREEEDOM!!” principles all in the name of stopping the Trump agenda.

    If your philosophy can not be uniformly applied, perhaps it is time to rethink the philosophy–a good start would be to abandon the libertarian label.

  20. Executive power IS unitary.

    Unfortunately, Somin has fallen into the same constitutional trap progressives have: “I don’t like the result ergo I will pretend the constitution does not mean what it says.” Somin is no longer an originalist, but a results-based constitutionalist.

    Now, if we wanted pass constitutional amendment to separate the “Attorney General” function from the President as an elected office (the AG is elected in most states) that may solve the problem of a “corrupt or lawless president” – but what about a corrupt or lawless AG? I can assure Somin that the AG is equally corrupt in some states like MD or NY with one-party rule.

    Ultimately, special counsels are nothing more than government funded opposition research and need to stop. Lenin said “show me the man, I’ll show you the crime.” These fishing expeditions end up far afield of where they start.

    1. You do know there are other things than originalist and being completely results-oriented, right?

      1. I guess it is possible to be an originalist and not completely results oriented, to be fair.

  21. Shorter Ilya: “But Trump! Derp.”

  22. It’s called Cognitive Dissonance. “Where you went wrong” is that you can’t get past your hatred of Trump so you have to create a different justification to calm down your cog dis.
    I have no doubt that many top law enforcement in the DOJ and FBI are having similar cog dissonance.
    How this plays out will change the course of the country

  23. “The executive Power shall be vested in a President of the United States of America.”

    What is “the executive power” exactly?

    It isn’t crystal clear what it means. Take, e.g., the “Stare Scalia” article in Slate recently:

    ” In my own research, I have found that early state constitutions sometimes placed attorneys general and prosecutors under the judiciary article or judicial sections of their constitutions.”

    Art. II has a limited list of executive functions. Are they merely redundant since “the executive power” is vested? It is also a generally understood rule that the Constitution is not absolute. There are, e.g., exceptions to freedom of speech. The idea that presidents have TOTAL power to hire/fire is not conclusive by the text or history. The question of executive power to fire is something Federalist Papers writer Alexander Hamilton himself changed his opinion on. If offices can have qualifications that limit executive discretion, I see no power merely as to “executive power” for an office to only be removal “for cause.”

    But, “originalism” is a variable thing generally.

    1. I see no power merely as to “executive power” for an office [that prevents an office] to only be removal “for cause.”

    2. The President does not have total power to hire, as Constituition authorizes the Senate to reject presidential nominees.

      The power to fire is total, as indeed it must be. Those who work for the President are, in effect, exercising Article II authority. As such, the President has the unlimited authority to fire subordinates, as it is his authority they are exercising? .

      1. There was a major debate over the power to fire in the First Congress … for those who are originalists that might matter to them in particular … so it didn’t seem obvious to them.

        Congress has the power to create the offices that the President fills, with or without (left open per Art. II for inferior officers) advice/consent, and set forth qualifications for them. This is another restraint on hiring.

        A person removable only for cause can still be under the authority of the executive. The “executive power” like “freedom of speech” is not absolute to the breadth of the possibility of the term. It is quite possible in fact for a regime to not allow a governor or president to simply resign for no reason either.

    3. ” In my own research, I have found that early state constitutions sometimes placed attorneys general and prosecutors under the judiciary article or judicial sections of their constitutions.”

      This is just the case with the Napoleanic approach followed in most European countries. The judges are the prosecutors and can direct the police powers of the state.

      That is not the American system.

      The plain meaning of the text is clear. The President not the Congress nor the judiciary is to execute the laws. What Congress can do is hold a person called in contempt. It may also use the information to impeach certain appointees.

  24. If the Executive wields too much power, its not their fault.

    Congress passed the drug laws and Congress passed the regulatory laws.

  25. If Congress is so concerned about Mueller’s job security, why do they not hire him themselves?

    1. I bet he could make more as an MSNBC legal analyst.

      1. Not only can, but likely will.

    2. As part of the executive branch, Mueller can prosecute people. If Congress hires him, all he can do is question them. Then it’s up to Congress to impeach, and Congress hates having to do the heavy lifting itself.

      Besides, Mueller can hire just Democrats to staff his investigation, while Congress is deplorably representative, and thus Mueller would be stuck with a representative staff chock full of potential whistle blowers if he did anything shady.

      A significant faction in Congress are hoping Mueller will find some reason, any reason, to impeach. Or at least so tie Trump up with legal battles that it handicaps him. No small part of that faction are Republicans. Trump wasn’t nominated as an affirmation of the Republican base’s love of their own elected officials.

  26. I am very glad to see a post on this subject, but Ilya’s thinking is profoundly disturbed and foolish. Very disappointing.

    The opposite of Ilya’s claim is true. The more “nonoriginalist” powers that the government accumulates, the more critically important it is that an originalist view of the separation of powers is maintained — both from a legal, originalist perspective, and a pragmatic/normative perspective. An executive function is an executive function, regardless of whether the underlying legislative action is within constitutional authority.

  27. “The only way to truly enforce the original meaning in such cases is to remove such authority from federal hands altogether. But if we cannot or will not do that, there is no reason to think that giving the power to president is any better – from an originalist point of view – than lodging it somewhere else.”

    This is just one item that is so blatantly false in this post, as Ilya only partly acknowledges in his update.

    “a unitary executive – even when it comes to powers beyond the scope of the original meaning of the Constitution – is desirable because it enhances political accountability. Even if true, this claim is about what is pragmatically desirable, not about the text and original meaning of the Constitution.”

    Wrong. This is about what is desirable, but it is also about the original meaning of the Constitution. Political accountability is the reason for the Constitutional structure that is set forth in very plain language which you are trying to deny, ignore and nullify. The level of Trump derangement is staggering.

    Here is a book to read:

    The Unitary Executive: Presidential Power from Washington to Bush

  28. The premise that there’s a unitary president (or Congress or Supreme Court) is wrong.

    Constitutionally prescribed checks and balances ensure none of the branches become too powerful.

    The President can’t attack Libya, North Korea, etc. if he/she/ze doesn’t have planes and ships that Congress pays for (and it’s more than power-of-the-purse; it’s also Congressional policy making).

    And the other way–Congress can authorize a gazillion dollars for the military and the President doesn’t have a buy a thing.

    For all the talk about the originalists’ plans for a unitary president, there was no way (even in 1787) they would allow an unchecked President.

    1. They never have allowed an unchecked President. You make the same fatal mistake Ilya did in forgetting the impeachment process.

    2. “The President can’t attack Libya, North Korea, etc. if he/she/ze doesn’t have planes and ships that Congress pays for (and it’s more than power-of-the-purse; it’s also Congressional policy making).”

      And yet it happened and the likes continue to happen. The power of the purse is not a mighty as you may think it is. Usually it reads, “Please don’t do that again.” Therefore, the power derives from the possibility of impeachment.

  29. I’m tempted to say, “all process arguments are insincere”, but I do think Ilya has a practical point, and that is that the system isn’t working very well. If the intent was to dilute power and set one power against another, the modern administrative state has done a very effective end-run around it.

    Rather than messing about with trying to reign in the specific powers of a Branch, however, I think it might be more practical to reduce the President to a single term of office. We’ve already got an amendment to the Constitution that limits it to two terms, so modifying that to limit it further shouldn’t be that much of a stretch.

    You have to go to the Constitution to change this kind of thing because you are talking about a Branch of government. One Branch can’t change another, only the entire country can do it.

    1. I don’t see that he has any practical point. There are two separate issues.

      One is that the federal government may be reaching beyond its limited, enumerated powers.

      The other is that the powers of the federal government are supposed to be separated among the legislative, executive, and judicial functions, with the executive power vested in the most visible and politically accountable office in the world, the President.

      Somin asserts that the violation of enumerated powers may be somehow remedied by further constitutional violation of the separation and vesting of powers. This is beyond unconvincing, it’s ludicrous. The more that the federal government exceeds its Constitutional authority, the more important it is that the proper distribution of powers is maintained. The suggestion here is that we cede unconstitutional super powers to unelected and unaccountable faceless bureaucrats. The suggestion itself is an outrage, not to mention the fact that this is what has in fact been happening.

    2. The problem isn’t a branch of government listed in the Constitution. The problem is that the legislature went and created a forth branch of government, the regulatory bureaucracy, which isn’t contemplated in the Constitution, and then ceded most of it’s power to it.

      Somin would just render that branch more unaccountable, by rendering it immune to the Executive branch.

      He starts out by saying that the federal government is now exercising powers nowhere given it by the Constitution, and asks if Unitary executive theory is really the best way to apportion them.

      There IS no “best way” to apportion unconstitutional powers, the only answer to that riddle is to stop exercising them.

      But he’s found a worst way to apportion them, (Concentrate them in an unconstitutional fourth branch of government, and then render it independent of the other three.) and advocated it.

  30. If there is one thing that most conservative and libertarian originalists agree on,

    How many conservatives are we to believe have signed on for the recent, right-wing fringe theory (it’s about as old as Kim Kardashian, and far less popular) known as originalism and favored by authoritarian conservatives?

  31. This post glosses over an important democratic argument in favor of the Unitary Executive. Namely, that the President is ultimately an elected official while government bureaucrats are not. The Federalist Papers have several mentions of the importance of elections in controlling the power of the Executive. Frankly, Obama and Trump with Executive Power worries me less than an unelected bureaucrats. The bureaucracy attracts the power hungry (J. Edgar Hoover) and the unprincipled opportunists (Sally “Logan Act”* Yates). These type of bureaucrats know how to work the system for themselves without much regard for the needs of the People. I suppose that we could have a split executive system like most states, but that would require a Constitutional Amendment.

    *-We are eagerly awaiting your call for a Logan Act investigation into John Kerry’s recent talks with Iran, Sal.

    1. Addendum: I will acknowledge that Somin makes a rather weak argument that effectively says, “Since the current political accountability is weak, we ought to replace it with no political accountability.” I will ignore the sophistry of this argument and focus on the claim that political accountability is weak. I will agree with this in general, but political accountability gets stronger as the outrages grow bigger. I can assure you that the LAST thing that most bureaucrats want is popular outrage directed at them and to receive an angry call from the White House as a result.

  32. Investigations of the POTUS should be run out of congress, not the DOJ, for reasons expressed here.

    Congress, after all, is the only body with the constitutional authority to prosecute a sitting president.

    That we’ve been doing this wrong doesn’t mean we should futz with the well established constitutional status of a unitary executive.

    1. The present structure of investigation is NOT incorrect. Yes, the Congress can prosecute sitting President. It cannot prosecute campaign officials who may have violated laws. Although it can forward its findings to the DoJ which exercises its discretion regarding any prosecution. Congress can find unresponsive persons in contempt.

      All involved can and should be investigated. Congress has made inquiries as have

  33. Anti-Trump animus prompts smart people to focus on expedient ways to get at Trump, as compared to focusing on respecting constitutional government.

    The constitutional ways to get at Trump include impeachment and voting him out of office at the next presidential election. Beyond that, we’re into nonsense.

    1. That’s why it’s called Trump Derangement Syndrome. It deranges people.

  34. What about cases wherein Congress has delegated rulemaking authority along what seem to be very specific lines in terms of executive offices? I’m thinking primarily of those cases where Congress outlaws interstate commerce in certain types of items?drugs, pesticides, narcotics, radionuclides, refrigerants, explosives?except in cases where executive action has granted licenses to do same. Does a unitary executive get to bypass such niceties & just deem the relevant officers to have made the determinations in question, regardless of who’s signed off on them? Or are the required agency actions on nearly separate parallel tracks with the general art. 1 authority?sharing personnel, but in different capacities according to the details Congress has set in statute on their jobs?

    On the one hand, it seems silly that The Boss has to accept as binding determinations made by underlings in the organiz’n chart. OTOH, it seems silly that Congress would’ve said particular officers must make certain findings based on whatever criteria, & then that Congress would make statements of future fact that those criteria being satisfied determine the legal status of a private party’s action. It’s almost as if Congress established several different offices but then gave them the same name & allowed them to be filled by the same person wearing separate hats, 1 of which is to advise the prez. Who’s advising whom?

    1. A practical example is the argument over whether POTUS can unilaterally move cannabis out of schedule 1 of the controlled substances act. Theoretically that requires the say-so of the att’y gen’l, who in turn is supposed to base part of that action on findings by the sec’y of HHS. But both of them serve under POTUS, so can POTUS order them to write whatever he wants? Or even just produce papers that say so, while they’re bound & gagged in the closet?

      Or is it a matter of firing the recalcitrant & leaving the offices vacant until Congress accedes to a nominee who’ll sign the orders? But if Congress were willing to do that, they could amend the act directly.

    2. The bit about multiple hats isn’t absurd on its face, it just doesn’t seem to be resolvable by the current constitution.

      I’ve been a committee chairman which gave me an ex officio vote on a board. So chairing a committee which was part of a board, & also being a voting member of that board. No explicit conflict there.

      There are ministerial systems of gov’t where cabinets are staffed from a legislature. Again, no apparent contradiction in lines of authority.

      It’s the situation of having Congress statutorily grant powers & responsibilities on certain offices, yet also making those offices subsidiary to a gen’l administr’n that theoretically executes those same laws, that messes w the mind.

      1. The fundamental problem here is that Congress doesn’t want the responsibility or work of drafting the laws itself, or the blame if they go bad. So they’ve delegated almost all the lawmaking to agencies in the Executive branch.

        Thus reuniting powers that were deliberately separated.

        They’ve made things even worse by trying to keep the President from directly exercising that delegated power, by rendering the regulatory agencies nominally independent of direct executive control.

        The effect is to create a 4th branch of government that combines the executive and legislative functions, (And increasingly judicial as well!) while being unelected, and subject to practically no checks on its power.

        None of this has anything to do with Trump, except that he’s a President who generates unique and insane levels of hatred among some of his foes, causing them to be willing to exacerbate such problems just to handicap him.

        1. The increasing concentration of power, unconstitutionally, within the administrative state is a grave threat to the republic.

          The framers knew that “ambition must be made to counteract ambition.” The only way that happens is by the Constitutional structure as written, including a fully unitary executive branch, which Congress only controls by by actually doing its job and making law.

          It’s pretty pathetic that Somin thinks conservatives should reconsider the fundamentals of the Constitution by recalling Obama or imagining that Hillary was President. He’s dead wrong. Never once during Obama’s presidency, even when he acted lawlessly, did I think “Gee, I sure wish the deep state bureaucrats had some independent power to counteract Obama.” No, that is for the legislature and the courts.

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