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.
The closest the Court comes to identifying evidence of the negative consequences of independent agencies is in its discussion of Humphrey’s Executor. It notes the following regarding FTC Commissioner William Humphrey, whom President Franklin Roosevelt purported to fire in 1933:
Humphrey lauded Hoover “as the foremost figure of the world,” a man who fought back against “the demagogue, the fanatic, the reformer, and the fool.” Washington, D. C., Evening Star, Mar. 11, 1932, p. D11, col. 8. On the Commission, Humphrey sought to do the same. He often spoke to the press, and described the FTC variously as “a publicity bureau” used “to spread Socialistic propaganda,” Boston Globe, Dec. 14, 1926, p. 5, cols. 3–4, a “bureaucracy gone insane,” N. Y. Times, Feb. 3, 1929, p. 19, col. 1, and “an instrument of oppression and disturbance and injury,” Orlando Evening Star, Jan. 7, 1931, p. 3, col. 3.
Slaughter Maj. Op. at 16-17.
The implication is that Roosevelt fired Humphrey for being a partisan Republican, having a different philosophy of government and/or mouthing off in the press too much. Justice Gorsuch’s explanation is simply that Roosevelt wanted someone more sympathetic to the New Deal for the job. See Slaughter, slip op. at 5 (Gorsuch, J., concurring) (hereinafter “Gorsuch Concurrence”). The Court evidently believes that any of these reasons would be fine because “neither Congress nor the courts may saddle [the president] with those whom he cannot work.” Slaughter Maj. Op.at 36 (emphasis in original). Since Roosevelt decide that he “could not work” (i.e., did not want to work) with Humphrey, it was appropriate to fire him.
The unitary executive therefore embodies something like a reverse human resources principle in which the boss may not be required to work with subordinates who make him uncomfortable. This principle falls well short of establishing the lofty claim that the (strongly) unitary executive is necessary for the government to function in a democratically accountable fashion. The Court provides no evidence or explanation as to how Humphrey’s presence on the FTC undermined democratic accountability or promoted any other ill it associates with disunitarianism. Nor does it provide any evidence of these problems with respect to any other independent officer or agency during the 91 years in which Humphrey’s Executor was the law.
Certainly it would be hard to think Humphrey’s Executor caused the weakening of the presidency or the curbing of presidential power (notwithstanding the foreboding of the Brownlow Commission in 1937, which Justice Gorsuch references in his concurrence). After all, presidential power has dramatically expanded in the intervening years. The historian Arthur Schlesinger coined the term “the imperial presidency” to describe the office that emerged after the New Deal and World War ii, and the concentration of power in the president has only gotten worse since then. Yet the Court is bizarrely focused on the idea that aggrandizement of congressional power is the problem.
For example, Slaughter asserts that, language to the contrary in Humphrey’s Executor notwithstanding, independent agencies are not truly “independent.” See Slaughter Maj. Op. at 23. Instead, the Court claims that the fact these agencies are insulated from the president “often results only in an ‘increased subservience to congressional direction.’” Id. at 24 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 523 (2009) (plurality opinion of Scalia, J.)).
The sole empirical support for this claim is the above-referenced citation to a plurality opinion by Justice Scalia in which he (approvingly) notes that a change in FCC policy regarding indecency enforcement was spurred by congressional hearings on the issue. See Fox Television, 556 U.S. at 523-25 & nn. 4-5. But the Slaughter Court does not explain what is inappropriate or problematic about this example. Congressional oversight of executive agencies includes “inquiries into the administration of existing laws,” Trump v. Mazars, 591 U.S. 848 (2020), and it is both unsurprising and appropriate that such oversight may convince an agency it should make administrative changes in response. The Court can call that “subservience,” but I think a better word is “accountability.”
To be sure, it is possible that the FCC did not merely consider congressional views on their own merits or as representative of the views of their constituents. Instead, the FCC might have given in to congressional pressure due to the fear of retaliation or other improper motive. Members of Congress have significant influence over the budget, authorities and very existence of any agency, whether independent or not. (So, of course, does the president, who plays a major role in the legislative process). But neither the Slaughter nor Fox Television Courts provide evidence that the FCC made its decision for such improper political reasons. Slaughter also offers no evidence that independent agencies in general are more likely than dependent agencies to be influenced by political pressure from Congress or to make decisions for improper political reasons.
The Court does cast aspersions on certain decisions which it suggests were improperly political, but these were not agency decisions. In its discussion of the Humphrey’s Executor decision, the Court says:
On a day that New Dealers would dub “Black Monday,” the Court ruled unanimously against the President—as it did in two other cases decided that same day, A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935), and Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555 (1935). See A. Schlesinger, The Politics of Upheaval 279–290 (1960). Schechter and Radford were quite a blow to the President, invalidating aspects of his signature legislation.
Slaughter Maj. Op. at 17. It then goes on to describe the holdings of Schechter and Radford, though these cases have nothing to do with any legal principle at issue in Slaughter.
I cannot think of any reason for this language other than to signal the Court’s sympathy with the idea that the “Black Monday” decisions reflected political hostility to the New Deal, rather than good faith legal analysis. This seems a strange critique of three unanimous opinions joined by conservative and liberal justices appointed by presidents of both parties (Radford was authored by Justice Brandeis). It is particularly strange coming from a chief justice who has bristled at treating judges as if they are “purely political actors.” If the chief justice does not want the Slaughter decision itself, which was decided by a 6-3 vote along party lines, to be treated as a “political decision,” it takes some nerve to make that charge against Humphrey’s Executor.
Perhaps, though, we can all agree that no institution, regardless of how independently it is structured, can escape the suspicion (and sometimes the reality) of political influence or bias. Just as that is not an argument against an independent judiciary, it is not an argument against independent agencies.
At the end of the day the Slaughter Court’s critique of independent agencies is simply an assumption. It assumes that the proper relationship of an executive agency to Congress and the president is subservience to the latter and independence from the former. But it provides no examples, historical or hypothetical, or any empirical evidence to show that this relationship is optimal for the operation of the government.
What it does have is a theory—namely that the president is “accountable” and dependence on the president makes executive officers and agencies likewise accountable. The Court, however, is quite vague about what this means. Perhaps the closest the Court comes to providing concrete meaning to this claim is the following: “When power is exercised well, the people know whom to thank; when power is exercised poorly, they know whom to blame—and whom to fire.” Slaughter Maj. Op. at 25.
I know the Supreme Court lives in a bubble but I am going to assume it is not so disconnected from reality that it believes any president is going to be “fired” for exercising power “poorly,” much less because some other officer of the government exercised power poorly. Presidents can only be “fired” through impeachment; no president has ever been successfully removed from office through impeachment (though one was forced to resign); and none of the efforts to remove a president has involved the claim that he allowed or directed a subordinate officer to exercise power poorly. Such a claim would seem to be an allegation of “maladministration,” which does not constitute an impeachable offense.
We will likewise skip over the suggestion that the people are monitoring the performance of the officers and agencies of the government to determine whether someone should be “thanked” or “blamed.” Such monitoring is the function of congressional oversight, but Congress can only hold the president directly accountable through impeachment. As we will discuss in another post, the unitary executive makes it more difficult for Congress to hold other officers of the government accountable.
I assume that what the Slaughter majority really meant was something like this. When people vote in a presidential election, they tend to hold the president responsible for how power has been exercised in the government, and it is therefore unfair for the president not to be able to completely control the exercise of that power. The unitary executive enables the people to know whether to vote for (thank) or against (blame/fire) the incumbent. This is admittedly an odd way for the Court to have expressed itself, but it is the only reading that comes close to conforming with reality. And it seems to be Justice Gorsuch’s interpretation too. Gorsuch Concurrence at 12 (“But while electoral accountability is a good thing, it cannot be the only thing.”).
One obvious problem with the idea that presidents are accountable through the election process is that second term presidents are not eligible for reelection. (The fact that some second term presidents may not fully accept this limitation is not helpful to the accountability thesis). Some second term presidents may care about their “legacy” or helping their party maintain control of the White House, but this is at best a diluted version of whatever accountability a first term president has.
Another problem is that a president’s electoral incentives may be for things that are very different from what the Court imagines as exercising power “well.” I suspect the Court, like Professor Prakash, thinks primarily of an executive choosing, from a range of lawful options, the one that accords with the president’s view of good public policy. But that is only one type of electoral incentive. A president also has electoral incentives to favor key constituencies, such as by doing out federal aid to important interest groups or swing states. He has electoral incentives to make it easier for his supporters to vote and harder for his opponents to do so. He has electoral incentives to favor or punish institutions (say law firms or universities) based on whether they support or oppose him. He has electoral incentives to intimidate the media, to deprive critics of an audience, and to censor unfavorable information. He has electoral incentives to investigate and imprison his political opponents, especially those who might run against him the next election. These incentives do not align with exercising power “well.”
Even if we consider just the president’s incentives to promote executive actions that will win votes, these do not necessarily align with governing well either. In general, he is incentivized to take measures which fulfill campaign promises, are politically popular and/or provide some highly visible short term benefit. In short, he is incentivized to act in accordance with the “plebiscitary nature” of the presidency, which Prakash critiques as antithetical to constitutional government. The electoral system does not hold presidents accountable for faithful execution of the law but for gratifying the desires of the voters who put them in office. See The Living Presidency at 64 (“in a context where citizens demand policy innovation from their presidents, these presidents are more apt to gratify such demands even at the expense of the law”). The unitary executive tends toward the accumulation of ever greater power in the presidency, toward stretching the law to establish new “precedents” that empower the executive at the expense of the other branches, and toward outright lawbreaking if needed to advance the president’s interests, policies and goals. See id. Such is the view of one of the unitary executive’s foremost proponents.
And that is before we consider the increasingly polarized nature of our politics, in which a president may have little incentive to appeal to the people as a whole. On the contrary, his base may reward him for taking actions that harm “the other side,” even if they do not promote the common good or even benefit his own supporters. In this environment a president can run on “retribution” as a campaign promise.
All of this suggests that the president’s “accountability” is largely a theoretical construct with little basis in reality. The Court shows little interest in how the president’s control over independent agencies would work in practice or how his alleged accountability might affect their operation. Nor does it give any thought to the possibility that its approach will make the principal officers of the government, whether at independent or dependent agencies, less accountable for the faithful execution of the law.
The Court likewise has little time for the observation, made both by the dissent and Justice Gorsuch, that Congress never would have delegated such substantial powers to independent agencies if it believed the president would be able to control their exercise. The Court does not disagree; it just does not care. In a footnote that addresses only the dissent, it says that this consideration, if relevant at all, goes only to severability. Slaughter Maj. Op. at 24 n.3. In other words, if Congress gave powers to an independent agency only on the assumption that they would be exercised independently, the Court might consider invalidating the exercise of those powers in another case. The majority’s dismissive tone, however, suggests it would have little interest in that subject.
Unlike the majority, Justice Gorsuch has some interest in the real world consequences of the Court’s decision. Noting that “[i]ndependent agencies today hold tremendous sway over the Nation’s affairs,” Gorsuch observes that under the Court’s ruling these vast “powers still exist; they have just been reassigned to the President.” Gorsuch Concurrence at 7, 12.
Gorsuch explores the “weighty consequences” of the Court’s opinion, which he joined in full, and he leaves no doubt that the consequences are bad. Sweeping all the powers of the numerous independent agencies into the president’s ambit dramatically expands his powers:
The whole of the President’s authority also may be greater than the sum of its parts. It would be one thing if today’s decision afforded the White House more control over the airwaves. Or financial markets. Or energy. But Presidents now will enjoy waxing authority over all those areas and more. A business out of favor with the party in control of the White House might be able to stave off an FCC investigation. But can it survive a subsequent FTC rule declaring unlawful one of its longstanding trade practices? What about an in-house adjudication by OSHA? Or a prosecution for a new crime the SEC announces? Not to mention what these now-coordinated powers could do to disfavored individuals who lack the resources needed to fend off such attacks.
Gorsuch Concurrence at 11.
The most important aspect of this passage is not the description of the president’s new powers but the assumption that he may use them to harm “disfavored” businesses or individuals. Nor is this a mere hypothetical, as Gorsuch suggests by reference to the Trump FCC’s efforts to punish late-night comedians who offended the president. Gorsuch Concurrence at 8-9. Despite the frequent invocations of the president’s constitutional duty to take care that the law be faithfully executed, Gorsuch understands that this is a meaningless legal formalism, like the Tenth Amendment or Congress’s power to declare law. In reality, presidents will use their powers to promote their own interests and objectives, unless there is some structural check to stop them. And Slaughter has removed a major structural check.
It might seem strange Gorsuch would write a concurring opinion to describe the dystopian future which will result from the opinion he joined. But never fear, he has a solution—sort of. In Gorsuch’s view the root of the problem is not the unitary executive per se but the fact that Congress has delegated to executive agencies such enormous powers, particularly powers that are properly legislative or judicial, not executive, in the first place. It is the president’s exercise of those non-executive powers Gorsuch finds most problematic:
Open-ended delegations of legislative power have not gone away; now they will just be exercised by agency officials who answer to the President. The power to write new regulatory crimes still exists, but the pen ultimately rests in the President’s hand. The ability to judge disputes in-house remains, but now the house is white.
Gorsuch Concurrence at 11. But here is his plan:
The fact remains that Congress has endowed formerly independent agencies not just with executive authority, but with enormous legislative and judicial powers as well. And now the President enjoys control over all those powers too. From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts.
Id. at 16 (emphasis added). So having given these “enormous powers” to the president, the Court should now pull them away entirely. Simple, right?
Well, I see a few problems with Gorsuch’s plan. The first is that there is not a great historical track record for concentrating enormous power in a single individual and then trying to claw it back later. Ask the Roman Republic how that worked out. If the Court was going to place meaningful limits on the powers delegated to independent agencies, the time to do that was before those powers were placed in the president’s control. To be sure, the Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), takes a modest step in the direction of enhanced judicial review of agency action, but Gorsuch correctly understands that this is far from adequate protection against presidential control of administrative decisionmaking.
Recognizing that Congress will have great difficulty retrieving the powers it delegated unless it can overcome the president’s veto, Gorsuch says that “if any real response is to come it will have to come from this Court.” Gorsuch Concurrence at 13. That seems like a big if. No other justice joined his concurrence, nor is there indication any justices are interested in following him down the “sure path” to restoring legislative powers to Congress and judicial powers to the courts.
It is also somewhat puzzling how Gorsuch squares his theory that executive agencies cannot exercise legislative and judicial powers with the language of the majority opinion (which, again, he joined). Chief Justice Roberts asserts, for example, that the FTC’s “power to promulgate substantive rules that carry the force of law . . . is executive through and through.” Slaughter Maj. Op. at 15-26. He also states that “in-house adjudication” is executive. Id. at 26. These activities “fall well within the heartland of executive power.” Id. at 27.
I am sure a motivated Court could figure out how to back away from these statements and start placing limits on the executive’s exercise of these powers. (Maybe it could even rediscover the wisdom of Schechter Poultry). But is there evidence that anyone else on the Court is so motivated? It is noteworthy that the Slaughter majority does not take issue with the parade of horribles Gorsuch lays out. His colleagues simply do not care. If bad things happen as a result of the Court’s endorsement of the unitary executive, that’s on James Madison. You can hold him accountable, I guess.
Even if the Court wanted to undertake the reform effort proposed by Gorsuch, there are questions about its practicality. Take, for example, Gorsuch’s suggestion that “in-house adjudications” by the executive are problematic and should be conducted by courts instead. If this were taken literally, it would mean the establishment of many new courts because, as Justice Scalia once explained with only a touch of hyperbole, there are an “infinite variety” of executive officers who have “the power to adjudicate in the manner for courts.” Freytag v. Commissioner, 501 U.S. 868, 908 (1991) (Scalia, J., concurring in part & concurring in the judgment). This was true from the beginning of the republic, Scalia pointed out, citing examples including the first Patent Board, on which Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph “adjudicated the patentability of inventions, sometimes hearing argument by petitioners.” Id. at 910. As we have previously seen, William Howard Taft, writing shortly after his presidency, described the variety of quasi-judicial functions that executive officers perform.
Rebuilding constitutional government in the wake of the unitary executive revolution may include the transfer of some adjudicative functions to the courts. But that is a decision Congress would have to make, and (even putting aside the presidential veto) it hardly seems likely or practical that Congress would expand the Article III judiciary sufficiently to perform a substantial portion of these functions. (My ten second ChatGPT research says there are tens of thousands of executive branch officials who participate in administrative adjudications, compared with 870 authorized federal district judgeships.) There is nothing the Supreme Court can do about that.
One thing that the Court could do is to decide whether it is constitutional to establish Article I tribunals (legislative courts) that are insulated from presidential control. Unfortunately, the Slaughter opinion takes the previously settled answer to that question (which was yes) and declares it to be an open issue. See Slaughter Maj. Op. at 28 (leaving for “another day” the permissibility of tenure protections for judges of non-Article III courts like the Tax Court and the Court of Claims). Instead of dreaming about the Court leading the way back to constitutional government, maybe Gorsuch could just convince his colleagues not to block the path others may wish to follow.
These problems, however, pale in comparison to a larger issue with Gorsuch’s plan. The primary danger of the unitary executive is not that it places quasi-legislative and quasi-judicial powers under the president’s administrative control. Nor is it the mere fact that it deprives Congress of the power to provide tenure protections for officers who exercise such powers. Rather it is that the unitary executive changes the psychology of all offices (whether purely executive, purely non-executive, or somewhere in between) from faithful obedience to the law to faithful obedience to the president.
Consider Gorsuch’s well-justified fear that the White House will use the new powers granted by the Slaughter decision to punish disfavored institutions, companies or individuals. It is not like this problem would disappear if the Court had decided the case the other way. For one thing, as Gorsuch points out, Congress has delegated plenty of quasi-legislative and quasi-judicial authorities to dependent agencies. See Gorsuch Concurrence at 9. A decision in favor of Slaughter would not prevent the president from using these authorities for whatever political ends he desires.
More importantly, even if every quasi-legislative and quasi-judicial power in the federal government were removed from the executive branch, the president would still have plenty of weapons with which to punish enemies or accomplish other political ends. He can have the Internal Revenue Service audit his critics or political opponents. He can have intelligence services collect and disseminate damaging information on domestic adversaries. Federal law enforcement agencies can investigate and arrest anyone who displeases the president, even opposition members of Congress or Supreme Court justices the president declares to be “disloyal” and “unpatriotic.” The Department of Justice can seek indictments, bring prosecutions, and file civil suits. Even the Postal Service can be weaponized to help the president undermine the integrity of elections. These executive powers are considerably more dangerous to liberty and “disfavored” interests than the quasi-legislative and quasi-judicial powers Gorsuch rightly fears.
What keeps (or used to keep) the exercise of these powers in check is not primarily the president’s electoral accountability (which, as noted, he can us them to undermine), but the accountability of the officers the president depends on to carry them out. Their accountability stems from sources including Senate advice and consent process for all principal and some inferior officers, the constitutional oath all officers must take, and the potential liability they face for violating the law. It also stems from professional and other rules and norms governing federal service. It is facilitated by laws, practices and institutions such as congressional oversight, inspectors general, civil service laws, whistleblower protections, and open records statutes.
The unitary executive weakens many if not all of these accountability mechanisms. Most fundamentally, as already noted, it changes the psychology of office. Because the unitary executive insists that the whole executive power belongs to the president, and that everyone else who exercises executive power does so on his behalf, executive officers increasingly will no longer think of themselves as having a duty to execute the law which is independent of the duty to carry out the wishes of the president. This change in psychology is accelerated by the firing or driving from office those who adhered to the prior norms.
Other developments play into this change as well. For example, Gorsuch notes how presidents have made changes to the civil service classification rules to exert greater control over career officials. Gorsuch Concurrence at 12. Presidents have also increasingly used and abused the Vacancies Act, which enables them to circumvent advice and consent. An even more concerning development is the increasing abuse of the pardon power, which enables the president to protect loyal subordinates from potential criminal liability. The expectation of such “patronage pardons” encourages executive officials to break the law on the president’s behalf and disincentivizes them to refuse the president’s demands.
Finally, the president’s own accountability has been dramatically reduced by the Supreme Court’s decision in Trump v. United States, 603 U.S. __ (2024), which bestowed upon the president a broad and ill-defined immunity from criminal prosecution for his official acts. The Court thereby established a less accountable president at the same time it is investing the presidency with ever greater powers. You don’t have to take my word for it:
Over the past half-century, the Executive and the Court have constructed a vast and formidable edifice of privileges and immunities, rendering the most powerful office in the world even more potent. The increased clout and vigor have come at the cost of responsibility, for the Executive is far less accountable than at any time in our nation’s history. It seems that with great power comes faint responsibility.
Prakash, The Fearless Executive, 111 Va. L. Rev. at 17 (criticizing Trump v. United States) (emphasis added). The Court wanted to ensure a president who could act fearlessly, but as Prakash says: “In time, the Court’s fearless executive may trigger great fear in millions, for they will hold a regal office with vast powers coupled with diminished responsibility.” Id. at 65.
I would say that time is now.