Month: August 2026

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”

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”

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”