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The Unitary Executive (Part 8): Congressional Oversight

Congressional oversight is a means of “caging the executive lion” which Prakash believes to be constitutional and appropriate. See The Living Presidency at 261-64. But he overlooks the ways in which the unitary executive makes congressional oversight more difficult.

Congress assigns duties and authorities to heads of departments and other executive officers. Congressional oversight is a means of holding those officers to account for how the law is being executed. But the combination of the president’s authority to dictate to executive officers the proper interpretation of the statutes they operate under and to direct them in the exercise of their powers under those statutes undermines congressional oversight. The officers can be called to testify, but they can shift responsibility to the president (as Jackson would have had Duane do). Meanwhile, the president cannot be called to testify, and, according to longstanding executive branch doctrine, neither can top White House aides who may be the true decisionmakers. See The Living Presidency at 251 (“[O]n the assumption what senior White House officials say represents the president’s will, these officials direct the vital work of other significant officers, including cabinet secretaries.”).

This exacerbates a problem Prakash rightly identifies, namely the trend of presidents stretching statutory authorities in order to, in effect, enact new programs that Congress has not approved. See, e.g., The Living Presidency at 51-52 (discussing President Obama’s “pen and phone” strategy to adopt the DACA and DAPA immigration programs). Most often these involve statutory authorities that have been delegated to a specific executive officer, not to the president. Yet once it is accepted that the president can rightfully direct executive officers in the performance of their statutory duties, as it increasingly has been in recent years, it becomes commensurately difficult to hold the officer accountable for the exercise of the delegated authority.

Consider, for example, the student loan forgiveness program adopted in the Biden administration. When he ran for president in 2020, Biden had promised to adopt a broad student loan forgiveness program. Initially this proposal focused on legislative action, although some of Biden’s rivals, such as Senator Elizabeth Warren, suggested it could be done through existing authority delegated to the secretary of education. Following Biden’s election and the confirmation of Miguel Cardona as the secretary of education, the new administration announced that the secretary would undertake a review to determine whether there was existing authority to forgive student debt. This review consisted of legal analysis by the general counsel of the Department of Education and DOJ’s Office of Legal Counsel, which ultimately determined (surprise!) that the authority could be found in an existing statutory provision (though a different provision than the one Warren relied on). The secretary then announced a broad loan forgiveness program which covered about $430 billion in student debt.

Formally this major decision had been made by the secretary of education, but everyone understood that this was a legal fiction. In reality, President Biden (or, more likely, his advisors) realized that Congress would not pass the student debt relief promised in the campaign and therefore directed the administration’s lawyers to find a way to accomplish the goal without legislation. This is precisely the dynamic Prakash describes (and decries). See The Living Presidency at 52 (“the desire to keep promises and thereby satisfy an electoral base often causes presidents to strain and stretch” existing law and “transgress existing norms, be they constitutional or statutory”). Executive branch lawyers, meanwhile, are highly incentivized to “provide legal cover and exoneration for executive aggrandizement.” Id. at 87; see also id. at 21 (“as judicial review becomes weaker or nonexistent, executive lawyers find more legal wriggle room and adopt increasingly implausible readings of the law”). Even where judicial review is potentially available, there is little reason not to adopt the most aggressive reading of the law so long as the president is prepared to accept a possible or likely loss in court. See, e.g., Biden v. Nebraska, 600 U.S. __ (2023) (rejecting the Biden administration’s interpretation of its authority to cancel student debt). Increasingly, presidents are willing to accept such possible losses and even to seek political gain from adverse judicial decisions by attacking the legitimacy of the courts.

The unitary executive plays a significant role in enabling this phenomenon. Because everyone understood that Cardona himself neither was responsible for interpreting the relevant statutory provisions nor actually made the decision to implement the loan forgiveness program, there was little point in trying to hold him accountable for these actions. Congressional Republicans made some half-hearted efforts to get documents relevant to White House and OLC involvement in the decisionmaking process, but there was little concerted effort to find out who actually made the decision to implement student loan forgiveness through administrative action. As a result there was no one who took responsibility for a decision that would have cost taxpayers nearly a half trillion dollars.

One major obstacle to Congress assigning responsibility for such administrative decisions is the doctrine of executive privilege and related doctrines which executive branch lawyers have developed to stymie congressional oversight. To Prakash’s credit, he recognizes the importance of dramatically reining in executive privilege if we are to “recage the executive lion.” See The Living Presidency at 261-64. Indeed, he seems to suggest that executive privilege simply be eliminated as a defense to congressional oversight. See id. at 262-64 (“Our system of checks and balances requires a Congress able to check the executive, which is impossible if the executive can block inquiries by invoking executive privilege.”).

A system that operated as Prakash seems to envision might indeed compensate for many of the problems caused by the unitary executive. Imagine, for example, if the president was permitted to fire any executive officer but was required to explain the reason to Congress. And if Congress were entitled to all documents, emails, text messages, etc. that could verify or undermine the president’s explanation. And if every executive officer were entitled to and, if called, required to testify before Congress regarding orders they believed were illegal or required them to exercise their statutory authorities in an improper manner. And if meritorious officers who faithfully executed the law were protected against the economic consequences of wanton removal by, for example, continuing to receive their salary for the remainder of their term. These steps, all of which appear to be constitutional in Prakash’s view, could eliminate many and perhaps all of the harmful consequences of the unitary executive; indeed, one could imagine them improving (from the standpoint of congressional supremacists such as myself) on the mostly unitary system that has prevailed since the Clinton administration. Cf. Strauss, 75 Geo. Wash. L. Rev. at 702 (“Our most recent Presidents, if not their predecessors, seem to have been at pains to convey the impression that they are personally responsible for the conduct of domestic governance, to a degree that extends to the resolution or decision of particular administrative issues; and their cabinet officials sometimes speak as if they were following binding presidential orders, rather than exercising their own statutory powers.”).

Unfortunately, Prakash makes no effort to grapple with the institutional, jurisprudential, statutory and possibly constitutional changes that would be needed to make this desirable world a reality. There are more modest and achievable (which is not to say easy) reforms that could be considered to restore some degree of congressional influence over the administration of the law. See generally Christopher J. Walker & Aaron Nielson, Congress’s Anti-Removal Power, 76 Vand. L. Rev. 1 (2023). But all these measures would be for the purpose of offsetting the harms caused by the triumph of the unitary executive.

Prakash’s stubborn refusal to acknowledge these harms is particularly perplexing in light of the following passage from his book on presidential power:

American history is . . . littered with examples of Congress pushing back against executive overreach. Consider limitations on the president’s power to fire officers. Whatever one thinks of their constitutionality (I am dubious), federal laws limiting the executive’s power to remove federal officers (“for cause” laws) are ubiquitous and represent sustained efforts to curb presidential authority. These laws have been successful, for modern presidents respect these limitations and almost never even try to remove such officers.

The Living Presidency at 248.

Here Prakash acknowledges several important realities. The first is the unsurprising fact that independent executive officers tend to restrain executive overreach and promote faithful execution of the law. The second is that for-cause removal limitations have been effective at protecting independence. The third is that these limitations have helped to establish and reinforce norms of independence that sweep beyond the formal legal prohibitions. Until recently, presidents have respected the independence of many types of officers, such as inspectors general and the director of the FBI, even though they have the formal legal power to fire them without cause. For example, the president has never fired a comptroller of the currency, even though the only legal restriction on doing so is that the president must communicate to the Senate his reasons for removal. See Walker & Nielson, 76 Vand. L. Rev. at 10 (“While other factors obviously may also be at play, no president has ever fired a Comptroller of the Currency, and that position is protected only by a weak dose of Congress’s anti-removal power.”).

These norms have been largely if not entirely swept away in the enthusiasm for one man rule that has accompanied the rise of unitary executive theory. The current president, for example, has used the removal power not only against officers protected by for cause removal provisions (such as the FTC commissioner involved in the Slaughter case) and those with strong norms of independence (such as inspectors general), but against categories of officers no president had previously attempted to remove or had even claimed the power to remove. These include inferior officers not appointed by the president, interim U.S. attorneys appointed by the courts, and even officers traditionally understood to be part of the legislative branch.

It may be true that a Congress determined to “cage the executive lion” can still effectively use oversight and other tools to do so even under the maximalist version of the unitary executive. But there can be no doubt that the unitary executive both makes the problem greater and the solutions more difficult. For example, the current administration has not only fired numerous inspectors general but did so without complying with the notice requirements provided by law, which it maintains (at least plausibly) are a violation of unitary executive principles. This does not inspire confidence in the willingness of the executive to acknowledge a constitutional obligation to cooperate with oversight investigations regarding such terminations (or anything else). And while future administrations may purport to be more accommodating as a matter of policy, it is doubtful that they will voluntarily give up any of the constitutional powers that have been asserted by the current administration. As Prakash himself points out, this is not how administrations have worked in the past. Instead, every administration views presidential power as “a one-way rachet,” where the president and his supporters will insist that “if one or more presidents have taken some step or act, the incumbent absolutely must be able to do the same.”  The Living Presidency at 128-29.

In short, congressional oversight is not going to be successful in caging the executive lion without a lot of additional reforms. In our final post, we will consider it might look like to begin reforming and constraining the unitary executive. Before doing that, however, we will take a quick look at some recent scholarship that may shape the Supreme Court’s perspective on such reforms.

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Leon Black’s Frivolous Lawsuit

Earlier this month the billionaire Leon Black sued the House Committee on Oversight and Government Reform (COGR) in federal district court, seeking injunctive and declaratory relief regarding two subpoenas that the committee had served upon him. The subpoenas related to COGR’s investigation into the activities of Jeffrey Epstein, who was a longtime business associate of Black’s.

COGR informed Black that its investigation included the following:

(i) the alleged mismanagement of the federal government’s investigation into Mr. Jeffrey Epstein and Ms. Ghislaine Maxwell, (ii) the circumstances and subsequent investigations of Epstein’s death, (iii) the operation of sex-trafficking rings and ways for the federal government to effectively combat them, (iv) ways in which Epstein and Maxwell sought to curry favor and exercise influence to protect their illegal activities, and (v) potential violations of ethics rules related to elected officials.

Although Black emphasizes that COGR’s jurisdiction (which he concedes is “broad”) is “not unbounded” and must be “in furtherance of a valid legislative purpose,” he does not appear to contest that the investigation described falls within COGR’s jurisdiction and has a valid legislative purpose. He seems to accept that COGR is legitimately investigating matters involving Epstein and Maxwell, “including federal investigative decisions, federal records, sex-trafficking enforcement, victim protection, potential ethics issues involving elected officials, and related legislative reforms.” Complaint ¶ 77.

Nor does Black appear to claim that it is unreasonable for the committee to view him as a source of potentially relevant information for its investigation. Black does not dispute COGR Chairman James Comer’s statement that “Leon Black had an extensive personal and financial relationship with Jeffrey Epstein spanning decades and paid him at least $158 million after Epstein became a registered sex offender.” These facts alone would warrant inquiring of Black to determine what information he might have regarding the subjects of the committee’s investigation.

Indeed, although Black does not expressly admit this, his complaint suggests he had no objection to COGR’s inquiring of him regarding his financial relationship with Epstein and any knowledge he may have had regarding Epstein’s sex-trafficking and other illicit activities. (He claims to have “no knowledge of any of Epstein’s heinous conduct. Complaint ¶ 38.) Black stresses that he voluntarily appeared for an interview by the committee staff and was prepared to answer questions about “his prior professional relationship with Epstein.” Complaint ¶ 28. However, Black informed the committee through counsel that he would “decline to answer questions relating solely to his personal life and the personal lives of third parties.” Complaint ¶ 26.

Specifically, Black does not want to provide any documents or testimony to the committee regarding the subject of non-disclosure agreements (NDAs) that he has entered into with various women. How many such NDAs exist? Black explicitly acknowledges the existence of two. Complaint ¶ 30. He implicitly acknowledges the existence of multiple additional NDAs because he says that “[c]ounsel for certain of these individuals” have insisted that Black not provide information about “their clients” or the NDAs they signed. Complaint ¶ 33. However, at his voluntary interview Black declined to answer when staff asked “[h]ow many NDAs are you a party to?” Complaint ¶ 31. So we can assume the answer to that question is at least five, and maybe a lot more than that.

In Black’s view, the fact that he, billionaire benefactor and close personal friend of Jeffrey Epstein, entered into NDAs with multiple women has nothing to do with Epstein and therefore has no bearing on COGR’s investigation. This might be less than obvious to the committee in light of evidence such as that spelled out in Senator Ron Wyden’s March 20, 2026 letter to Black, which included the following passage:

[R]ecords unsealed by the DOJ indicate that Epstein may have served as a “fixer” regarding women who were paid tens of millions of dollars in exchange for their silence. Unsealed records indicate that you may have funneled hush money payments to women using Epstein as a middleman, raising concerns of potential money laundering. Epstein also provided the location of women on your payroll to a well-connected Russian government operative and asked for “suggestions” on how to deal with them.

This sounds to me like something COGR could reasonably inquire about and not, as Black argues, simply private information with no possible bearing on its investigation.

Legal Analysis

For purposes of our discussion, however, it makes little difference whether we accept Black’s characterization of COGR’s subpoenas. That is because the court does not need to, and almost certainly will not, reach the issue whether COGR is entitled to ask Black about the NDAs or any other particular subject. Instead, Black’s lawsuit must fail because it is well-settled that courts lack power to restrain congressional committees from issuing or enforcing a subpoena, regardless of the recipient’s claim that the subpoena violates constitutional privilege, was improperly motivated, or is otherwise unlawful. Continue reading “Leon Black’s Frivolous Lawsuit”

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The Unitary Executive (Part 7): Slaughtering Accountability

If there is one central idea of the unitarians, it is that the president should control all executive authority because he can then be held accountable for the use or misuse of that authority. Related is the idea that independent officers or agencies are unaccountable. The Slaughter decision relies heavily on the narrative that the framers rejected a plural or divided executive where the chief magistrate would be little more than the chair of an executive council. See Trump v. Slaughter, 609 U.S. __, slip op. at 5-9 (2026) (hereinafter “Slaughter Maj. Op.”).

Chief Justice Roberts explains that the reason for departing from this weak executive model, which prevailed in most of the early state constitutions, was that a single strong executive was needed to focus responsibility and ensure that the chief executive was accountable to the people. Diffusing executive power, it was thought, would enable the chief executive to shift responsibility to others and create confusion in the public mind as to whom should receive credit or blame for executive actions. In contrast, a single empowered president would, in the words of James Iredell, “be personally responsible for everything.” Slaughter Maj. Op. at 9 (quoting Answers to Mr. Mason’s Objections to the New Constitution (1788), in Pamphlets on the Constitution of the United States 348 (P. Ford ed. 1888)) (emphasis added by the Court, I think).

The chief justice notes that the creation of a strong presidency was facilitated by the fact “everyone at the Convention knew who that President would be—the Convention’s presiding officer, George Washington.” Slaughter Maj. Op. at 7-8. See also The Living Presidency at 32 (“This was not a constitution built to curb a Geroge III, a Richard Nixon, or a Chairman Mao. It was built to empower the virtuous, selfless, and thoughtful George Washington.”).

This observation is presumably not just a passing pleasantry. It suggests that the framers may have erred on the side of a strong presidency on the assumption that presidents would have a character like Washington’s. This in turn implies that it might not work as well for presidents less virtuous, selfless, and thoughtful than Washington, to say nothing of presidents less virtuous, selfless, and thoughtful than George III or Nixon (I’ll leave Mao out of it).

Such an observation would make perfect sense if we were discussing, say, the pardon power. The Constitution on its face grants a broad pardon power, which may have been influenced by the fact the framers believed that Washington would use it carefully and responsibly. The Court might properly say that it cannot narrow the scope of the pardon power on the ground that the framers did not anticipate how it would be abused by modern presidents. The remedy for this problem would be the political process, most likely in the form of a constitutional amendment.

But the Court’s approach to the unitary executive is different. Apart from the reference to Washington, it gives no consideration to the possibility that the strongly unitary executive might have a downside or negative consequences unforeseen by the framers. It avoids making any response to the potential (and indeed observable) dire consequences of the unitary executive, though they are clearly identified in Justice Sotomayor’s dissent and Justice Gorsuch’s concurrence. Instead, the Court simply asserts (repeatedly) that anything other than its version of the unitary executive amounts to a fourth branch of government which destroys democratic accountability through the president.

The Court’s claims in this regard are particularly striking given the fact that, by the Court’s own admission, its version of the unitary executive has not prevailed during much of the republic’s history. From 1867 to 1887, the Tenure of Office Act was in force, placing substantial limits on the president’s ability to remove any principal officer. From 1935 to 2026, presidential removal of principal officers of independent agencies was restricted under the (now overruled) doctrine of Humphrey’s Executor and for most of that time Congress was understood to have substantial latitude in designating agencies and functions as independent. Finally, during the period from 1887 to 1926, when the Court decided Myers, there were a number of statutes which restricted presidential removal of particular types of officers, including the restriction on removal of postmasters struck down in that case.

Given the many decades during which the president’s removal power was (in the Court’s view) unconstitutionally restricted, one would expect abundant evidence of the negative consequences the Court associates with a non-unitary executive. For example, instances in which the president was unable to ensure that the law was faithfully executed. Or examples of unaccountable agencies executing the law in a manner strongly opposed by the president. Or evidence of public confusion over responsibility for the actions of independent agencies. Strangely, none of this information is presented by the Court’s opinion.

Continue reading “The Unitary Executive (Part 7): Slaughtering Accountability”

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The Unitary Executive (Part 6): The Case of the Attorney General

At least since Watergate the confirmation of an attorney general has been considered a matter of particular importance and sensitivity. This reflects both the necessity of ensuring that the administration of justice is conducted impartially and the difficulty in drawing clear lines as to how the president and White House may properly exercise influence over the Department of Justice. See Green & Roiphe, 70 Ala. L. Rev. at 6 (“It is not always easy to distinguish between legitimate policy objectives reflecting the President’s platform and agenda and illegitimate interference with prosecutorial discretion.”). Accordingly, senators have relied on the professional reputation and character of the nominee, assurances of independence by the nominee, and the nominee’s willingness to abide by prophylactic policies such as those limiting contacts between the White House and the Department of Justice. See id. at 22 (“Attorney General nominees since Watergate have endorsed the principle of prosecutorial independence from the President, and Senators have regarded a commitment to independence from the President as an essential qualification for the position.”).

This safeguard, however, has been undermined, perhaps fatally, by two developments. The first is President Trump’s constant and flagrant interventions in criminal cases to benefit his friends and harm his enemies. These interventions, both public and private, make a mockery of any norms of political non-interference with the administration of justice. The second development is unitary executive theory itself, which holds that all executive power belongs to the president personally and that executive officers merely exercise it on his behalf. The idea of independence, whether of an executive officer or an executive agency, is therefore seen as a contradiction in terms and a violation of the constitutional order. The Supreme Court seems to have validated this conclusion with its pronouncement that the president enjoys “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” Trump v. United States, 603 U.S. 593, 621(2024). As Professor Jack Goldsmith has noted, “[t]he Court applied this principle to deny Congress and the courts the power to stop the president from using DOJ law enforcement tools to achieve what would otherwise be a crime.”

The Decline and Fall of DOJ Independence

The two Trump administrations illustrate the decline and fall of DOJ independence. In the first Trump administration, Senator Jeff Sessions was nominated and confirmed as attorney general. During the confirmation process, he made various commitments to the Senate, including that he would seek the advice of Justice Department ethics experts in determining whether to recuse himself from investigations relating to alleged Russian interference in the 2016 presidential election. Sessions ultimately did recuse himself from the investigation, leading to sharp and public rebukes from Trump, who believed that Sessions should have asserted control over the investigation in order to protect Trump’s personal and political interests. There is little doubt this was the reason Trump fired Sessions immediately after the 2018 election. Although the dismissal of Sessions should have raised the same concerns as Duane’s firing and the Saturday Night Massacre, it provoked little congressional or public backlash.

Trump’s next nominee for attorney general, Bill Barr, was pressed for and gave a series of assurances to the Senate about his independence. In his written testimony, Barr repeated an assurance he had given the Senate during his confirmation hearings 27 years earlier:

The Attorney General has very special obligations, unique obligations. He holds in trust the fair and impartial administration of justice. It is the Attorney General’s responsibility to enforce the law evenhandedly and with integrity. The Attorney General must ensure that the administration of justice – the enforcement of the law – is above and away from politics. Nothing could be more destructive of our system of government, of the rule of law, or the Department of Justice as an institution, than any toleration of political interference with the enforcement of the law.

In his oral testimony, Barr elaborated. He made clear that whatever guidance was received from the president, decisions on specific prosecutions were the responsibility of the attorney general. In response to questions from Senator Feinstein, he said: “So, in my opinion, if he attempts–if a President attempts to intervene in a matter that he has a stake in to protect himself, that should first be looked at as a breach of his constitutional duties–whether it also violates a statute, depending on what statute comes into play, and what all the facts are.”

In response to Senator Durbin, Barr said “I will not be bullied into doing anything I think is wrong by anybody, whether it be editorial boards or Congress or the President.” In response to Senator Coons, he said he would not carry out an illegal instruction comparable to Nixon’s direction to fire the special prosecutor and stated that “on the enforcement side, especially where matters are of either personal or political interest to people at the White House, then there would be–there has to be an arm’s length relationship.”

Continue reading “The Unitary Executive (Part 6): The Case of the Attorney General”

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The Unitary Executive (Part 5): The Psychology of Office

In the last post we discussed how the unitary executory changes the psychology of executive office from being one of an agent of the law to being an agent of the president. Some might object, however, that the unitary executive can co-exist with a measure of independence among executive officers. Professor Prakash seems to suggest as much when he observes that “[t]he Senate’s role in consenting to appointments is vital, not only because senators vet a candidate’s fitness for office, but also because senators often convince nominees to supply various assurances, including, among other things, their future use of delegated powers, the advice these nominees will give the president, and the nominees’ willingness to resign should presidents abuse their power.” Living Presidency at 252-53.

Under some circumstances, there would be merit to this point. As discussed in prior posts, in the past the conventional wisdom was that presidents could not properly direct officers in the exercise of powers committed to their discretion. Regardless of whether the executive branch fully embraced this understanding, there were strong political and legal disincentives to prevent presidents from overtly attempting to direct executive officers in their decision-making. A determined officer therefore had significant leverage to push back against presidential pressure.

For example, from the Nixon administration to the early Obama administration, there were a number of occasions where presidents and “dependent” regulatory agencies (i.e., those headed by officers removable at will) clashed over the issuance of regulations or other specific regulatory decisions. See generally Robert V. Percival, Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?, 79 Fordham L. Rev. 2487, 2497-2532 (2011). These disputes were resolved in a variety of ways. Sometimes agency officials knuckled under to White House pressure; sometimes the president backed down and the agency went ahead with its preferred action; sometimes a compromise was reached; and sometimes an agency official resigned in protest or in recognition of irreconcilable differences. Moreover, because judicial review of the ultimate agency action or inaction was often available, courts sometimes overturned the agency decision on the ground that it resulted from improper communication or political pressure from the president or White House. See id. at 2504-05, 2508-09 & 2523-24 (citing cases).

Unitarians and nonunitarians have debated whether these episodes support or undermine the proposition that the president has constitutional directive authority over regulatory decisions. Compare Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 348 (2008) (arguing that this history is consistent with unitary executive theory) with Percival, 79 Fordham L. Rev. at 2499-2500 (arguing the contrary). But the relevant question here is what degree of control presidents had in actual practice, not in constitutional theory. Presidents undoubtedly had indirect influence over agency decisions by virtue of the appointment power, which enables them to select individuals inclined to follow their policies generally, and they also could use their internal bully pulpit to try to influence specific decisions. Had they been willing to accept the political costs and legal/practical risks, they could have fired uncooperative officials and tried to replace them with more pliant appointees. None, however, took this step.

Furthermore, none of the presidents in question overtly challenged the norm that formal decisionmaking authority rested with the agency, not with the president. Significantly, while they issued executive orders establishing internal review mechanisms for regulatory actions, they stopped short of claiming directive authority over the decisions of dependent agencies. See Percival, 79 Fordham L. Rev. at 2513 (noting that “the Reagan, Bush, and Clinton executive orders expressly eschewed assertions of [directive] authority”); id. at 2530 (“President Obama continues the tradition of eschewing directive authority in the executive order outlining his regulatory review program.”). Thus, in practice agency officials could rely on the norm or understanding that they had the ultimate decisionmaking authority to resist presidential pressure. Cf. Percival, 79 Fordham L. Rev. at 2533 (the question of directive authority “determines whether agency heads have a legal entitlement to refuse to comply with a presidential directive when it directs them to act in a way they believe is illegal, improper, or unwise”). There was simply no easy mechanism for a president to overcome a determined agency official’s refusal to make a particular regulatory decision.

The unitary executive theory changes the psychology of office by identifying the president as the constitutional decisionmaker. The agency official makes decisions only as a matter of delegation from the president, and that delegation can be revoked at any time. Even if the regulatory decision constitutes the jural act of the agency, rather than the president, it would be constitutionally wrongful for the agency officer to refuse to carry out the president’s direction, just as it would be to refuse to carry out an order of a court. Moreover, the unitary executive theory, at least the version endorsed by Prakash, would say that the president could perform the jural act himself, a theory that goes beyond anything that Jackson or Nixon claimed. According to Prakash, Jackson could have simply bypassed Duane and directly ordered the withdrawal of federal funds from the Bank of the United States. Nixon likewise could have directly ordered the withdrawal of the grand jury subpoena and/or fired Cox personally. This theory leaves little or no room for an executive officer to assert a measure of decisional independence.

Continue reading “The Unitary Executive (Part 5): The Psychology of Office”

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The Unitary Executive (Part 4): Historical Lessons

In a recent paper, Professor John C. Harrison remarks that “[p]erhaps the most famous example of [presidential] removal for policy purpose was President Jackson’s replacement of Secretary of the Treasury William Duane with Roger Taney.” John C. Harrison, The Unitary Executive Without Inherent Presidential Removal Power 43 n.171 (2022). This might understate matters because, depending on what one means by “policy purpose,” Jackson’s removal of Duane might be the only example of such removal in American history.

Professor Prakash identifies Andrew Jackson, not coincidentally, as the originator of the concept of the popular mandate, which Prakash blames for the pernicious “reconception of the office” from a chief executive focused on faithful execution of the law to the claimed embodiment of the popular will. See The Living Presidency at 75, 77-78.

Surprisingly, though, Prakash only alludes to the episode at the heart of this reconception. He notes that Jackson justified his decision to withdraw funds from the Bank of the United States by reference to the mandate allegedly given by the people in 1832, when Jackson was reelected after campaigning against the Bank. See id. at 75. But the constitutional clash between Jackson and his congressional critics (led by the Senate’s Great Triumvirate of Daniel Webster, Henry Clay, and John C. Calhoun) did not center on the fact money had been withdrawn from the Bank, but how it had been withdrawn.

Congress had delegated the authority to remove funds from the Bank to the secretary of the treasury, not to the president. Accordingly, Jackson asked Secretary of the Treasury Duane to remove the funds, a “request” he clearly expected to be honored. But Duane hesitated. He maintained, reasonably enough, that the law provided that only the treasury secretary could remove the funds and therefore it was his responsibility to make the decision. Strauss, 75 Geo. Wash. L. Rev. at 706; Jon Meacham, American Lion 257, 268 (2008). Jackson countered that the president could direct him to remove the deposits, thereby taking it on the president’s responsibility. Meacham, American Lion at 268. Duane thought this theory would reduce him (and presumably all heads of department) “to a mere cipher in the administration.” Id. at 258.

As a matter of unitary executive theory, the situation raises several issues. Taft might ask whether the statute “peculiarly and specifically committed to the discretion” of the treasury secretary the issue at hand. Arguably, the statute here perhaps implicitly required the decision to be made based on financial prudence and other factors within the treasury secretary’s expertise, but the case against presidential interference would have been stronger had the statute expressly set forth what factors should govern the decision to withdraw funds. Put another way, if the statute allowed the secretary to withdraw funds for any reason, it would be more constitutionally problematic for Congress to attempt to insulate this decision from presidential control.

On the other hand, Prakash presumably would contend that the president must be able to direct the treasury secretary in the exercise of his lawful discretion, regardless of congressional intent or the nature of the decision. Professor Harrison, who contends that the unitary executive requires the president to control all “policy decisions,” a term he does not define but which apparently would have included the decision to withdraw funds from the Bank, seems to have the same view. The current Supreme Court appears to agree, as the secretary would be exercising executive power which belongs to the president. Unless, of course, it falls under a “special arrangement sanctioned by history” such as “that monetary policy should not be subject to political interference.” See Trump v. Cook, 609 U.S. __, slip op. at 23-24 (2026) (insert shrug emoji).

Continue reading “The Unitary Executive (Part 4): Historical Lessons”

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The Unitary Executive (Part 3): Theory Versus Reality

In my last post we considered whether the insecurity of unitary executive theory from the standpoint of constitutional text and other accepted methods of constitutional interpretation may explain the reluctance of Professor Prakash (and perhaps other unitarians) to acknowledge its downsides. In this post I will address a related reason, namely that the argument for the unitary executive historically has had less to do with constitutional text or original meaning than with the idea that it produces a superior form of government. Given that we are now for the first time truly living with the unitary executive in maximalist form, it may not be surprising that its adherents are reluctant to revisit its actual consequences.

As Chief Justice Taft, the author of the preeminent unitarian opinion in Myers, confided privately at the time:

I agree that in the beginning it might have been decided either way, but it was decided in favor of the view that the Constitution vested the executive power of removal in the President, with only the exceptions that appear in the instrument itself. My experience in the executive office satisfies me that it would be a great mistake to change that view and give to the Senate any greater power of hampering the President and tying him down than they have under the view we voted to recognize as the proper one.

Robert Post, Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States, 45 J. Sup. Ct. Hist. 167, 173 (2020) (quoting letter of Sept. 16, 1925 from Chief Justice Taft to Justice Butler).

Taft here is advancing one of the principal consequentialist arguments made by unitarians—namely that allowing Congress to restrict the president’s power of removal (in that case by requiring the Senate’s assent) would have the effect of dividing the executive power, interfering with the president’s ability to provide overall direction to and management of the executive branch, and potentially making executive officers unduly subservient to Congress. A modern twist on this argument adds the democratic accountability that (allegedly) results from making executive officers completely subject to the president’s direction and control. Thus, Prakash contends that the consequences of the unitary executive are desirable:

The laws of the United States grant some discretion to the executive department. The President, elected to exercise executive power, should be able to control the exercise of that discretion. This supervisory power makes it more likely that the executive officers will pull in one direction—the President’s direction. The alternative enshrines a fair bit of chaos, for it envisions independent executive officials exercising discretion and pulling in different directions, often acting at cross purposes. Absent a centralizing influence, we might find that [sic] departments opposing climate-change policies tooth and nail, others adopting modest measures to combat climate change, and still others making it their central purpose to halt climate change. This is no way to run an executive. Additionally, the public properly equates the Executive with law execution (see Schoolhouse Rock) and knows that presidential candidates have policy agendas. In that environment, the public will hold presidents responsible for law execution, including the discretionary choices that officials make.

Too Unitary, 135 Yale L.J.F. at 545-46.

I would note this argument seems a bit overstated as it is unlikely that executive officers appointed by the same president will pull in entirely different directions. Indeed, that is precisely the point made by Prakash on the Executive Functions podcast (quoted in my first post) where he argued that once the president has appointed a majority of the FTC commissioners they are likely to move forward with his agenda (i.e., pull in his direction). Of course, there is a big difference between generally agreeing with the president’s policy priorities and making specific decisions in accordance with his wishes. This distinction is one that Prakash and many other unitarians tend to ignore.

This is not to dispute that there is a perfectly respectable Kaganesque argument for the benefits provided by presidential administration. See generally Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2384 (2001) (arguing that presidential administration in many modern contexts “promotes the values of administrative accountability and effectiveness”). What is less clear is whether it constitutes a valid constitutional argument, particularly from an originalist perspective. Indeed, Prakash’s justification for presidential intervention in administrative decisionmaking appears to be in sharp conflict with the original conception of the presidency as he has described it. The “original presidency,” he has said, “focused on duty,” i.e., faithfully executing the law, rather than on campaign promises or policy agendas. The Living Presidency at 48-50. The rise of a plebiscitary democracy, in which presidents claim a popular mandate to implement campaign promises independent of what Congress has enacted, is at the very root of the dangerous “living presidency” Prakash opposes. See id. at 50-53, 73-79. Yet that very conception of the presidency, which he says has “no constitutional foundation,” id. at 73, is what he relies on to support the unitary executive. This is very puzzling.

Continue reading “The Unitary Executive (Part 3): Theory Versus Reality”

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The Unitary Executive (Part 2): A Tenuous Theory

We left off the last post by asking why Professor Prakash refuses to acknowledge the connection between the “creeping constitutional coup” of executive power, which he warns against in The Living Presidency and elsewhere, and the theory of the unitary executive which he has promoted for his entire career.

Part of the problem, I think, is that unitary executive theory has an extremely tenuous foundation in constitutional text. The Constitution is quite specific about how officers of the United States are to be appointed, but it says nothing about their removal except that civil officers may be removed upon impeachment and conviction. U.S.Const., art. II, § 4. It also says little about the president’s relationship to officers once they are appointed. His relationship to military officers may to some extent be inferred by the fact he is designated as commander in chief. U.S. Const., art. II, § 2, cl. 1. With regard to civil officers, however, the most specific provisions are (1) “he shall take care that the Laws be faithfully executed” (U.S. Const., art. II, § 3); and (2) “he may 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” (U.S. Const., art. II, § 2, cl. 1). The first of these implies some power in the president to ensure faithful execution, but it does not imply that the president has the power to control, direct or remove officers who are faithfully executing the law. The second suggests that the president lacks a general power of direction and control, even as to heads of the executive departments, because otherwise it would be unnecessary to specify this extremely limited power.

Because these provisions are of limited help to their cause, unitarians place most of their reliance on the first sentence of Article II, which provides that “[t]he executive Power shall be vested in a President of the United States.” U.S. Const, art. II, § 1, cl. 1. They claim that this sentence, known as the Vesting Clause, means that the president alone must control all exercises of “the executive power,” which in the view of many (but not all) unitarians includes the power to remove executive officers. Prakash summarizes the unitary executive position as follows:

Summing up, the unitary-executive thesis has four principles: (1) The Article I Vesting Clause does what it says. It bestows a power—the executive power. (2) That executive power has several strands, not all of which are specified or referenced in the Constitution; (3) Among those strands are the power to execute the law and the authority to direct and fire executive officers. (4) Congress lacks constitutional power to abridge or abrogate the executive power, for it lacks a generic power to regulate the constitutional powers of other branches.

Too Unitary, 135 Yale L.J.F. at 544-45.

Whether or not Prakash’s theory is “correct,” it is extremely controversial. For one thing, it is not at all obvious that the Vesting Clause has the meaning Prakash ascribes to it. Some argue that it is a mere “designation” clause that introduces the subject of Article II (just as Articles I and III have similar introductory sentences) but that the substantive content of the president’s powers must be found in the more specific provisions elsewhere in Article II. See Julian Davis Mortenson, Article II Vests the Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169, 1178-79 (2019) (terming this the “Cross-Reference theory”); Robert G. Natelson, The Original Meaning of the Constitution’s “Executive Vesting Clause”—Evidence from Eighteenth-Century Drafting Practice, 31 Whittier L. Rev. 1 (2009) (laying out the case that the Vesting Clause is a designation clause). Others argue that the Vesting Clause does not incorporate “several strands” of power unenumerated in the Constitution but refers only to the power to execute the laws, a power which is dependent on the content of laws passed by Congress. See Mortenson, 119 Colum. L. Rev. at 1180, 1230-43 (arguing for this theory). Finally, even if one accepts that the Vesting Clause incorporates certain unenumerated powers determined to be “executive” in nature, that still leaves the problem of identifying those powers and applying them in the context of our constitutional system. See, e.g., Daniel D. Birk, Interrogating the Historical Basis for a Unitary Executive, 73 Stan. L. Rev. 175, 182 (2021) (“there is no evidence to support the assertion that the removal of executive officers was a branch of the royal prerogative or that a general removal power was an inherent attribute of the ‘executive power’ as it was understood in England.”). Continue reading “The Unitary Executive (Part 2): A Tenuous Theory”

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The Unitary Executive (Part I): Prakash v. Prakash

Professor Sai Prakash is a noted legal scholar and prolific author who has long been one of the leading advocates of the unitary executive. See, e.g., Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023); Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541 (1994). More recently, he has warned of the dangers posed to our constitutional system by the growth of executive power and a culture of presidential lawlessness. See Saikrishna Bangalore Prakash, The Fearless Executive, Crime, and the Separation of Powers, 111 Va. L. Rev. 1 (2025); Saikrishna Bangalore Prakash, The Living Presidency: An Originalist Argument Against its Ever-Expanding Powers (2020); Saikrishna Bangalore Prakash, Imperial from the Beginning: The Constitution of the Original Executive  (2015). Unaccountably, Professor Prakash professes to see no tension or inconsistency between these two positions. See Saikrishna Bangalore Prakash, Too Unitary, 135 Yale L. J. F. 533 (Feb. 9, 2026).

When people speak of the unitary executive, they usually mean first and foremost the proposition that the president enjoys a constitutionally illimitable power to remove a broad swathe of executive officers. It is the existence and scope of this power which has been the primary focus of debates among constitutional scholars, judges, and statesmen over the last 237 years, and it is this power which the Supreme Court recently expanded in Trump v. Slaughter, 606 U.S. __ (June 29, 2026), where it held the president could remove without cause commissioners of the Federal Trade Commission (FTC) and other “independent” agencies. It is important to recognize, though, that this removal power is only one aspect of a broader, but far less scrutinized, question of the president’s right to direct and control executive officers.

It is also important to distinguish between the question of constitutionality and the actual consequences of the unitary executive in the real world. One could believe that the Constitution, correctly interpreted, mandates the unitary executive in its strongest form, while at the same time acknowledging that it contributes to the dangerous constitutional imbalance Prakash has identified. This, however, is not Prakash’s position. Instead, he maintains that the unitary executive, if “[p]roperly conceived and understood,” is “scarcely terrifying” and “has little bark or bite.” Too Unitary, 135 Yale L.J.F. at 536. To put it bluntly, this is nuts.

Continue reading “The Unitary Executive (Part I): Prakash v. Prakash”

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Dr. Fauci, Senator Paul, and the Congressional Contempt Process

Today the Senate Homeland Security and Governmental Affairs Committee (HSGAC) voted, 8-5 along party lines, to hold Dr. Anthony Fauci in contempt of Congress for refusing to answer questions before the committee. The HSGAC resolution provides:

Resolved, That pursuant to sections 102 and 104 of the Revised Statutes (2 U.S.C. 192, 194), the President of the Senate shall certify the report of the Committee on Homeland Security and Governmental Affairs of the Senate, detailing the refusal of Dr. Anthony S. Fauci to answer questions pertinent to the subject under inquiry, to the United States Attorney for the District of Columbia, to the end that Dr. Fauci be proceeded against in the manner and form provided by law.

Section 192 of Title 2 provides, in relevant part, “[e]very person who having been summoned as a witness by the authority of . . . any committee of either House of Congress . . . who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor . . . .”

Notwithstanding this language, it is well established that witnesses before Congress may not be punished for valid assertions of their constitutional rights, including the privilege against self-incrimination. Here Fauci refused to answer based on that privilege. Ordinarily that would end the matter unless the committee chose to grant him testimonial use immunity (see 18 U.S.C. §§ 6002, 6005). In this case, however, the committee majority contends that Fauci could not validly invoke the privilege because he received a full pardon from President Joe Biden for the events that were under inquiry by HSGAC.

The main substantive legal issue presented by the contempt is whether that pardon means that Fauci has no reasonable fear of self-incrimination and therefore may not validly invoke the privilege. Fauci argues that it does not, pointing to the fact that Republicans, including President Trump himself, have questioned the validity of Biden’s “autopen pardons.”  Even if the pardon ordinarily would provide adequate assurance against prosecution, Fauci’s lawyers will argue, it does not do so under these circumstances, particularly given the current administration’s demonstrated willingness to prosecute political enemies without justification.

Not being a criminal lawyer or having researched the question, I will not weigh in on whether Fauci has a winning argument on this point. (There is some good discussion in this AP article). It is worth noting, though, as Daniel Schuman discusses here, that a decision against Fauci could enhance a future Congress’s ability to get information from Trump administration officials if/when Trump pardons them.

However, before we get to that point there is a major procedural obstacle to prosecuting Fauci. Section 194 of Title 2 provides:

Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, rec­ords, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before . . . any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

Some important aspects of this section may not be immediately apparent from reading its rather dense language. It might appear that once “a statement of fact constituting such failure” is reported to the Senate or, if the Senate is not in session, to the president of the Senate that it is the automatic duty of said officer to certify the statement of fact to the “appropriate United States attorney” for presentation to a grand jury. However, the invariable congressional practice under the statute is that when the contempt is reported to the House or Senate, as the case may be, the legislative body itself must vote to certify the contempt before the presiding officer will do so.

There is an exception to that requirement when Congress is not in session. In that case the speaker or president of the Senate may certify the contempt without a vote of the body. The last (and possibly the only) time this was done was in December 1964, when Congress was not in session and a House committee transmitted to the speaker a report regarding witnesses who had refused to testify before one of its subcommittees. The speaker, based on advice from the parliamentarian, understood that he had a mandatory duty to transmit the report to the U.S. attorney. However, the D.C. Circuit rejected that reading of the statute and reversed the convictions that followed. See Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966).

Continue reading “Dr. Fauci, Senator Paul, and the Congressional Contempt Process”