The Unitary Executive Theory versus the “Steady State” in the Trump Era

In a sweeping interpretation of presidential authority in the New York Times, two leading proponents of the unitary executive theory, John Yoo and Saikrishna Prakash, wrote:

“Because of the original constitutional design, President Trump ultimately can order the end of any investigation, even one into his own White House. He even has the power to pardon its targets, including himself. Mr. Trump can decide tomorrow that pursuing Mr. Flynn and others for lying to the F.B.I. agents is a waste of time and money. Though he claimed that he fired Mr. Comey for not doing ‘a good job,’ the president can fire any cabinet and high-ranking Justice Department official for any reason or no reason.”

Always potentially profound and contentious, the implications of this controversial theory of presidential power are especially notable given the politics of the Trump era and the Russia investigation led by Special Counsel Robert Mueller.

Hinging upon the removal power and the claim that the president possesses the entire “executive power” under Article II of the Constitution, unitary theory envisions top-down hierarchical control of the executive branch. Though it is an originalist claim, it has mostly become popularized in conservative legal circles since the 1980s. Its conservative proponents have sought to gain presidential control over the modern administrative state.

Of course, a gap always exists between how political ideas are assumed to work in theory and how they operate in institutional practice. As Patrick O’Brien shows, there is always a significant difference between assertions of presidential control over administration in theory and the limitations of that presidential control in practice.

Yet rarely has this gap appeared as yawning between what the unitary executive theory is being invoked to justify versus the state of presidential control over administration in practice. Recent revelations have attested to how Trump’s presidency has been, in the words of Jack Goldsmith, a “non-unitary executive.” Dramatically, one anonymous administration official even wrote in the Times that, by ignoring some of Trump’s wishes, officials were engaging in “the work of the steady state.”

Such mismatches between what ideas anticipate and their practical operation arguably are one of the key drivers of American political development.

 

UNITARY THEORY AS IDEA

Presidents themselves have rarely, if ever, pursued what this idea anticipates and claims to justify to the degree that Trump has. As Axios reported, “What [Trump] enjoys most about this job is finding things he has absolute power over.” “[I]f there’s a power he’s been given,” said one official, “you can bet every penny you own that he’s going to use it — and perhaps use it in new ways or with greater frequency than ever before.”

Consider a few examples:

  • Removal Power

The crux of the unitary executive theory is the president’s removal power. The theory asserts that no executive branch official should be immune from being fired by the president. This aspect of the theory would in particular seem to appeal to a figure who became famous for the phrase “You’re fired” on The Apprentice. And indeed, Trump’s firings as president have been dramatic.

No dismissal thus far has proven more consequential than the firing of FBI Director James Comey in May 2017. Trump’s decision led directly to the appointment of Mueller as Special Counsel for the Russia investigation by Deputy Attorney General Rod Rosenstein.

Moreover, the episode was central to one of the questions of that inquiry: did the president, by firing the FBI director, obstruct justice? Trump himself, after all, told NBC News anchor Lester Holt, “When I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story.’”

But according to the proponents of the unitary theory, the president’s intention in firing an official is always irrelevant. The president just can fire someone. As Press Secretary Sarah Huckabee Sanders asserted, “the bottom line is [the president] doesn’t have to justify his decision. The president has the authority to fire [him].”

Nor has Trump and his administration stopped there. While the Mueller investigation has continued for over a year, Trump has directly asserted his ability to fire Mueller as well. As Sanders stated, “I know a number of individuals in the legal community, and including at the Department of Justice, said he has the power to do so… We’ve been advised that the president certainly has the power to make that decision.”

When documents of Trump lawyer Michael Cohen were seized in an FBI raid, Trump himself broached the possibility: “Why don’t I just fire Mueller? Well, I think it’s a disgrace what’s going on. We’ll see what happens… But I think it’s a really sad situation when you look at what happened, and many people have said you should fire him.”

  • Security Clearances

This year, Trump also has found he has the ability to revoke the security clearances of current and former officials. In particular, Trump made the unusual move of revoking former CIA Director John Brennan’s security clearance. In so doing, Trump sought to make the outspoken critic of his administration a direct foil.

  • Pardons

Trump has also been enamored with the pardon power. As one official noted, “[Trump] got a kick out of pardons, that he could pardon anybody he wants and people would come to him to court him and beg him.”

But Trump has not simply contemplated generic pardons. Instead, he has clearly thought about how broad his power to pardon might be. He has raised the possibility of issuing pardons that some might argue obstructed the Russia investigation, and has even broached the possibility of pardoning himself.

As Trump tweeted in July 2017, “all agree the U.S. President has the complete power to pardon.”

  • Control over Investigations

Together, Trump’s assertions of the unitary executive theory clearly add up to a claim of ability to order a halt to Russia investigation. As the New York Times reported, Trump’s legal team “contends that the president cannot illegally obstruct any aspect of the investigation into Russia’s election meddling because the Constitution empowers him to, ‘if he wished, terminate the inquiry, or even exercise his power to pardon.’”

“Every action that the president took was taken with full constitutional authority pursuant to Article II of the United States Constitution,” Trump’s lawyers argued. “As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality.”

Such a bold unitary claim, if used to try to half the Russia investigation, would provoke a political firestorm.

  • Judicial Nominations

Trump’s judicial nominations, with substantial input from the Federalist Society, also include judges with inclinations to support the unitary executive theory. For example, his Supreme Court nominee Brett Kavanaugh appears to be an ardent proponent, with repeated, broad citations to Antonin Scalia’s dissent in Morrison v. Olson (1988) in his opinions. Moreover, Kavanaugh has significantly criticized the Supreme Court decision in Humphrey’s Executor (1935), the case that limited FDR’s ability to fire independent commissioners and signaled the Court’s recognition of limits to the president’s control over the executive branch.

Were the Court to ever seriously challenge that ruling, the implications for presidential power, the administrative state, and bureaucratic expertise and autonomy would be profound.

 

UNITARY THEORY IN PRACTICE

Yet President Trump’s control over his administration has been directly and publicly challenged to an astounding degree. As Jack Goldsmith writes, “What is most remarkable is the extent to which his senior officials act as if Trump were not the chief executive.  Never has a president been so regularly ignored or contradicted by his own officials.” (Goldsmith also provides an excellent list of examples.)

Trump’s angry assertions of total authority over the Justice Department – with profound implications for norms of judicial independence – have also exposed his lack of control. Repeatedly trying to humiliate his Attorney General Jeff Sessions – “I put in an attorney general who never took control of the Justice Department”– instead Trump faced remarkable statements of pushback from Sessions – “While I am Attorney General, the actions of the Departmentof Justice will not be improperly influenced by political considerations.”

Consider also the extraordinary revelations that came back-to-back-to-back in September 2018.

First, as Bob Woodward has reported, Trump’s orders have been routinely ignored by senior officials, some of whom even went so far as to swipe papers off of Trump’s desk. Describing “an administrative coup d’état,” Woodward explained:

“At another moment, Mr. Trump’s aides became so worried about his judgment that Gary D. Cohn, then the chief economic adviser, took a letter from the president’s Oval Office desk authorizing the withdrawal of the United States from a trade agreement with South Korea. Mr. Trump, who had planned to sign the letter, never realized it was missing.”

“I can stop this,” Cohn reportedly told staff secretary Rob Porter. “I’ll just take the paper off his desk.”

Second, an anonymous senior official writing in the New York Times described deliberately undermining Trump’s inclinations. “I work for the president but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations,” said the official. Asserting that many “Trump appointees have vowed to do what we can to preserve our democratic institutions,” the official claimed to be “thwarting Mr. Trump’s more misguided impulses until he is out of office.”

The search for this writer consumed the White House in the following week, and Trump evidently had “even carried with him a handwritten list of people suspected to be leakers undermining his agenda.” But, as one official claimed to Axios, “there are dozens and dozens of us.”

Finally, in yet another astonishing piece, Deputy Attorney General Rod Rosenstein, in the days after Trump’s firing of FBI Director Comey, was reported as having proposed wearing a wire while having conservations with Trump. Furthermore, he evidently openly discussed having the cabinet invoke the 25thAmendment to remove an incapacitated president. (Rosenstein’s fate in the administration is currently uncertain.)

Whatever the Trump administration’s unitary pretensions, the reality has shown a decided lack of unitary control in practice. One recent headline summed up the current state of affairs: “Trump at war (with his own government).”

 

IDEAS AND INSTITUTIONAL CHANGE

What are we to make of these sweeping unitary assertions coupled with decidedly non-unitary control?

As noted earlier, there is always a tension between ideas as envisioned in theory and practice. But the Trump presidency reveals an extraordinary disjointedness between what the unitary theory anticipates and how the institutional arrangements that the idea supports are operating.

Scholars of American political development suggest that such a wide gap will yield political change. As Robert Lieberman writes, political development can arise “out of ‘friction’ among mismatched institutional and ideational patterns.”

What changes, if any, that could entail is an open question. In the nineteenth century, pushback against President Andrew Johnson’s control over the executive branch resulted in the controversial Tenure of Office Act, requiring Senate consent to remove executive officials. (The act was repealed in 1887.) In the twentieth century, rising doubt in another idea that was at the core of the modern presidency – the claim that presidents, elected by a national constituency, uniquely represent the national interest – directly influenced congressional pushback against presidential authority in policy areas such as budgeting and reorganization.

The historical record of political change suggests that when ideas that are key justifications for sets of institutional arrangements lose legitimacy in practice, those arrangements may be more vulnerable to pushback and alteration. Perhaps the very assertions of the unitary executive theory today – bold as they are – may ultimately undermine the influence of the idea in the coming years. It is unclear what will next happen to presidential authority. Indeed, the judiciary may, in the aftermath of the Trump presidency, have more judges sympathetic to the idea. But the seeds of discontent, with the potential for a substantial pushback against presidential power, also appear evident in today’s political discourse.

 

1 thought on “The Unitary Executive Theory versus the “Steady State” in the Trump Era

  1. This is nicely framed and articulated. I have lots of thoughts in response, but I’ll offer just three for consideration.

    1. It is important to stress that the removal power foundation of unitary executive theory is James Madison’s framing of the basis for the removal power in the Decision of 1789 debates. Madison framed hierarchical presidential control over all subordinates as anchored in the “republican principle.” Hence proponents (starting with Prakash), can claim the legitimacy of democratic roots for the theory, which is a very powerful claim, counterarguments from the losers in the debates notwithstanding.

    2. It is important to look to statutes, such as the Whistleblower Protection Act and its amendments to see the extent to which unitary executive theory has seeped into law. Congress unanimously approved the “Follow the Rules” Act in 2017! But, it addition to the Whistleblower Protection Act did not alter the many exceptions to the officials in the executive branch actually enjoy the statutory protections.

    3. Perhaps President Trump is just a weak test case for the practical impact of the theory, given the many high profile instances of push-back. What we don’t know is how much the general pathways for internal dissent within the executive branch over policy that have existed in the past have been cut off. Lots of shenanigans in the White House don’t really tell us much. What’s happening in the agencies, especially under appointees not necessarily all that beholden to Trump, might be much more revealing about the effects of supercharged unitary executive theory.

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