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.
Trying to understand the basis for Prakash’s position is challenging. He says that “[t]he Constitution creates a powerful presidency and yet it meaningfully constrains the President’s authority over the bureaucracy, foreign affairs, and law enforcement.” Id. at 535. But “the Constitution” cannot constrain anyone or anything. The constraint must either come from the president himself or from some structure, authority, or institution outside of the president. As Prakash has explained in some detail, the historical record does not support the proposition that presidents will constrain themselves. And the current president, who (in)famously said “I have an Article II, where I have the right to do whatever I want as president,” certainly will not constrain himself.
What forces then can constrain the president? Congress can pass laws, but those laws are only effective if they are obeyed. If the president can direct everyone in the executive branch as to how to interpret and apply the law, or even whether to obey it, that limits the effectiveness of congressional power. It limits the effectiveness of the confirmation process because nominees cannot credibly make commitments as to how they will execute the law or even whether they will follow it. It also undermines the effectiveness of congressional oversight because the oversight power cannot reach the actual decisionmakers, but only mere ciphers charged with implementing the president’s will.
In theory, Congress can impeach and remove the president, but Prakash acknowledges that this power has little bark or bite in our current political circumstances. See The Fearless Executive, 111 Va. L. Rev. at 31-32 (referring to impeachment as a “phantom menace” which “does little work in curbing the presidency”).
Historically the most immediate check on presidential power and lawlessness has come from within the executive branch itself. For example, the Nixon administration developed a “political enemies project” to figure out, as White House Counsel John Dean put it in a August 16, 1971 memorandum, “how we can use the available federal machinery to screw our political enemies.” The answer, it turned out, was that it couldn’t, largely due to resistance from the executive branch itself, including both political appointees and the career bureaucracy (aka “the Deep State”). In particular, the leadership of the Treasury Department and the Internal Revenue Service declined to use the enemies list as a basis for conducting audits. While neither the secretary of the treasury nor the commissioner of the IRS was protected against presidential removal, they understood themselves to have an independent duty to faithfully execute the law. Like a number of significant executive agencies and functions, moreover, the IRS had a strong norm of independence which it could rely on to resist any political pressure to audit the president’s enemies.
We can see in real time how the unitary executive is eroding these protections against presidential lawlessness and overreach. The current administration is openly conducting a “political enemies project” (sometimes labeled as an “anti-weaponization” effort) with little pushback from within the executive branch or from a supine Congress. When executive branch officials do refuse to cooperate with the administration’s attempts to investigate or prosecute its political enemies, they are fired or forced to resign. By any objective standard, each one of these dismissals is a bigger scandal than Nixon’s enemies list, yet they receive a tiny fraction of the attention.
There are undoubtedly many factors that may explain this discrepancy. For one thing, if the president commits a Watergate-level scandal every day, the effect is to numb the political culture rather than to provoke a public backlash. (As Stalin observed, one death is a tragedy and a million deaths a statistic.) But it seems undeniable that the unitary executive has played a key role in enabling such conduct and dismantling the checks that could deter or correct it. After all, if the Constitution requires that the president be the ultimate decisionmaker on all matters within the executive branch, then no mere executive officer or employee has any standing to object to the president’s directive. Of course, they have the right, like any citizen, to disagree with the directive on grounds of legality, propriety, or wisdom, and they have the right to resign, but their sole constitutional role, according to the maximalist view of the unitary executive defended by Prakash and arguably endorsed by the Supreme Court, is to implement the president’s instructions.
Even constitutional scholars sympathetic to the unitary executive, such as Professor Jack Goldsmith, acknowledge that taking it to its logical extension has extremely serious consequences. On a recent Executive Functions podcast, Goldsmith and Prakash discussed the Slaughter decision, and Goldsmith noted: “Suddenly, this opinion, if read in that maximalist way supercharges presidential power because now you’ve got a president with this massive administrative apparatus who’s basically on the maximalist view completely in control.” Prakash, while acknowledging that Slaughter did appear to adopt a maximalist approach, denied that the case “massively increases presidential power” because independent agencies in reality “aren’t that independent.” Once the president has had the opportunity to appoint a majority of commissioners, he explained, the president gains “a practical control over them” sufficient to ensure adoption of the president’s agenda.
This is a peculiar statement because the whole thrust of the unitary executive argument is that it is insufficient for the president to have the power to appoint executive officers, even in combination with the power to remove for cause. The Court in Humphrey’s Executor, the 91-year-old precedent overruled by Slaughter, noted with approval the legislative intent to create in the FTC “a body of experts who shall gain experience by length of service — a body which shall be independent of executive authority except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government.” Humphrey’s Executor v. United States, 295 U.S. 602, 625-26 (1935) (emphasis in original). It has always been understood, in other words, that the president could affect the direction and policy of independent agencies through the use of his appointment power. If that were enough to give the president “a practical control over them,” why does the president need more power than that?
In truth, one of the reasons the government lost Humphrey’s Executor was that it had no good response to that question. As far as I know, no one at that time thought it proper for the president to instruct or even influence commissioners of the FTC on how to vote on matters that came before the agency. It is hard to explain why the president needs to remove the commissioners without cause for any reason other than influencing judgments that are to be made “without the leave or hindrance” of the president or anyone else. The “moderate” unitarian position, following the reasoning of Chief Justice Taft in Myers v. United States, 272 U.S. 52, 135 (1935), was that while there were many types of decisions which the president could not “properly influence or control” in a particular case, the president could still consider such decisions after the fact as grounds for removal if they tended to show that the discretion given to the officer was not “on the whole intelligently or wisely exercised.” But while this dictum may have sounded reasonable in the abstract, it did not make sense to any justice on the Humphrey’s Executor Court (including four of the five justices who joined the Myers majority) to say that where an officer’s functions are entirely beyond the president’s right to influence or control, the president still needed more than the power to remove for inefficiency, neglect of duty or malfeasance provided by the statute.
The maximalist view endorsed by Prakash and (apparently) by the Supreme Court, however, goes well beyond Myers. It holds that all executive power belongs to the president and is merely exercised by subordinates on this behalf. While not expressly addressed by the Court, Prakash has explained that this means the president can direct executive officers in the exercise of their official duties and can even step in and exercise their powers himself.
It does not seem that Prakash has spent much time thinking about what this means for presidential unilateralism in practice. In commenting on the Slaughter decision on the Executive Functions podcast (which everyone really should listen to), Prakash remarked, as if this were something of a surprise: “If it does, in fact, you know, it turns out that it does reach into the bowels of the agency and covers all officers or even further all employees, it will influence their incentives and make them less resistant to presidential direction.”
Less resistant to presidential direction? I thought the point of the unitary executive was that no one in the executive branch was supposed to be resistant to presidential direction at all. And that is why the unitary executive obviously acts as an accelerant to the problems of presidential lawlessness and overreach.
Why then does Prakash deny this relationship? We will turn to that question in our next post.