The Volokh Conspiracy
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Perils of Unitary Executive Theory
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.
Much of the litigation surrounding the new Trump administration turns in part on "unitary executive" theory - the idea that the president should have near-total control over the executive branch of government.
As I explained in a 2018 post on this topic, unitary executive theory is one of the few issues on which I have changed my mind during the Trump era. Most of my opposition to the Trump-era GOP is based on that party's turning strongly against positions I had held previously, on issues like immigration, free trade, federalism, free speech, and the role of the United States in the world. Unitary executive theory is an exception. This post builds adapts and expands material from my 2018 piece and explains why unitary executive theory cannot be accepted in a world where the federal government wields vastly greater power than it is supposed to have under the original meaning.
Before going into detail, it's worth emphasizing what unitary executive theory (UET) is - and what it is not. UET is a theory of the distribution of executive power, not a theory of its scope. Even if all or nearly all executive authority is concentrated in the hands of the president, its scope could potentially still be quite narrow, if the total amount of executive power is very limited. For example, even if UET is correct, the Trump administration's multifaceted effort to usurp the spending power is still unconstitutional, because the power of the purse is not an executive power at all. It belongs to Congress.
Still, the modern scope of executive power is very broad, in large part because the federal government has intruded into so many areas beyond what it was supposed to control under the original meaning of the Constitution. And that undermines the case for UET.
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.
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 pretty strong (at least on originalist grounds). Unfortunately, however, the current scope of executive authority goes far beyond that. To take just one 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. Immigration is another field where the executive now wields vast power, despite the fact that, as James Madison and others pointed out, the original meaning of the Constitution actually did not give the federal government any general power to restrict migration into the United States.
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 majority of adult Americans have violated federal criminal law at some time 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 the 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. Likewise, Congress can also create independent officials tasked with investigating the executive branch's use of its nonoroginalist powers to make sure it stays within various legal and ethical constraints. That suggests the courts should uphold the constitutionality of laws preventing Trump from firing special counsels and inspectors general without cause. 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.
Obviously, not everyone is an originalist. Many nonoriginalists are 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.
Defenders of UET - even when it comes to powers beyond the scope of the original meaning of the Constitution - often claim it is desirable because it enhances political accountability. Even if true, this is a claim 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. Realistically, most voters know very little, if anything, about the functions of most federal government agencies. Moreover, the greater the scope of presidential power, the harder it is 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 more detail in my book Democracy and Political Ignorance: Why Smaller Government is Smarter.
Even if you think voters are more knowledgeable about executive agencies than I do, it doesn't follow that accountability is furthered by UET. Well-informed voters can instead impose it through Congress. If they don't like the performance of an independent agency, they can vote for senators and representatives who will abolish it, curtail its powers, or make it subject to greater presidential control.
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 reason - originalist or otherwise - to give it all to the president. 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.
