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”