Category: Appointments and Removal

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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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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.

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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).

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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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Madison, the Comptroller of the Treasury, and the Unitary Executive

I will have a lot to say about the unitary executive in the coming weeks. I am less interested in relitigating whether the Supreme Court’s view of the unitary executive, as most recently explained in Trump v. Slaughter, is the correct one, and more interested in figuring out what this decision means as a practical matter and how we go forward from here.

But I do have a quick comment on the exchange between the majority and the dissent regarding James Madison’s suggestion in 1789 that the comptroller of the Treasury, an officer in the Treasury Department, should be subject to special removal  provisions. Chief Justice Roberts, writing for the majority, dismisses this incident, contending that Madison never suggested that the comptroller be protected against presidential removal. See slip op. at 29 n.5. Moreover, whatever Madison intended to suggest, it was not well-received by his colleagues and did not become law. Various unitarians have struggled to explain what Madison meant regarding removal. Professor Saikrishna Prakash, for example, has variously suggested that Madison was misinterpreted, was confused, or was just wrong. See Bamzai & Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1821-23 (2023); Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1070-72 (2006).

Putting aside the controversy over the removal question, however, Madison was clear on why he thought that the comptroller was different than the secretary of the treasury or the secretary of foreign affairs. Madison explained that the comptroller was “not purely of an Executive nature,” but performed duties that were both judicial and executive in nature. 1 Annals of Cong. 611-12 (1789). As Justice Sotomayor noted in dissent, Madison thought that for executive officers “whose duties ‘partak[e] strongly of the judicial character . . . there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the Executive branch.” Sotomayor Dissent, slip op. at 6 (quoting 1 Annals of Cong. 612).

Whatever Madison’s views on the removal question and whether or not others agreed, it does not appear that anyone at the time or since has disputed his underlying point, which is that the comptroller’s functions by their nature were to be performed independently and without presidential interference. Indeed, more than a century later, none other than William Howard Taft, then a former president and the future author of the seminal unitarian decision in United States v. Myers, would make this exact point regarding the same office:

    Then consider the drawing of money from the Treasury Department under an appropriation act. The drawing of the warrant must be approved by the Comptroller of the Treasury. It is for him to say how the appropriation act shall be construed and whether the warrant is lawful and whether the money can be drawn. The Comptroller of the Treasury is an appointee of the President, and in a general sense is his subordinate. If the President does not like him as a Comptroller, he can remove him and with the consent of the Senate put in another one, but under the act of Congress creating the office, the President cannot control or revise the decisions of this officer. His work is like the work I have referred to, quasi-judicial.

William Howard Taft, Our Chief Magistrate and his Powers 81 (1916) (emphasis added).

The Court no longer likes the terminology of “quasi-judicial,” which it apparently views as conclusory. But the idea that the president cannot properly direct or control the performance of particular functions that Congress has delegated to executive officers is one that, as far as I can tell, was utterly uncontroversial until relatively recently. It would have been self-evident to Madison and Taft and, I think, pretty much everybody else that the president could not overrule a comptroller’s decision as to the lawfulness of a warrant and the propriety of drawing money from the treasury.

Are we now in a world where the president can personally issue regulations, decide patent applications, approve drug applications, conduct IRS audits, rule on contract disputes and other claims against the government, conduct immigration proceedings, and dispose of the countless other matters that Congress has delegated to some officer or agency in the vast federal bureaucracy? If so, we are in a brave new world, and we better figure out what we are going to do about it.

Fast.

 

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The Unitary Executive is Watching You

A few months ago a group of six Democratic members of Congress, including Senator Mark Kelly, released a video reminding members of the military that they have a duty to “refuse illegal orders.” The senators and representatives, each of whom has a military or intelligence background, did not identify any particular orders that should be disobeyed, but it was generally assumed that that they were referring to the Trump administration’s legally questionable Venezuelan boat strikes and possibly also the president’s actual or threatened deployment of regular military and National Guard forces in American cities.

The video was subject to reasonable criticism by non-insane people on the ground that it was pointless at best, as servicemembers are well-trained on their duty to disobey unlawful orders, and at worst disruptive to military cohesion and discipline. Among the less mentally balanced, however, the Democrats were labeled the “seditious six” and accused of a “direct attack on this republic.” The latter category included the commander in chief, who fired off the following social media post on November 20, 2025:

It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL. Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand – We won’t have a Country anymore!!! An example MUST BE SET.

In case this take was too nuanced, President Trump followed up with another post shortly thereafter: “SEDITIOUS BEHAVIOR, punishable by DEATH!”

By incredible coincidence, a few days after Trump declared these opposition lawmakers to be enemies of the state his administration announced that it was reviewing “serious allegations of misconduct” against Senator Kelly in his capacity as a retired naval captain. According to a social media post from the Department of “War” (not its actual name), “a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.” It then explained:

This matter will be handled in compliance with military law, ensuring due process and impartiality. Further official comments will be limited, to preserve the integrity of the proceedings.

At this point you might be thinking that an investigation launched by the executive branch after the president has already publicly declared the guilt of the target doesn’t exactly scream “due process and impartiality,” but at least we can rely upon the military to conduct the actual investigation in a serious and professional manner, as well as to avoid inflammatory public comment, just as it promised to do. Right?

You poor naive sap. TWENTY-SEVEN minutes after the announcement of the investigation, the secretary of “war” reposted the announcement with his own commentary:

The video made by the “Seditious Six” was despicable, reckless, and false. Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of “good order and discipline.” Their foolish screed sows doubt and confusion — which only puts our warriors in danger.

He went on to explain that the investigation was only of Kelly because he alone of the “seditious six” remained subject to the Uniform Code of Military Justice. He closed by vowing that “Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately.”

This doesn’t seem all that impartial, to be honest. But wait, you say. That post wasn’t from the official X account of the secretary of “war.” It was from the personal X account of some guy named “Pete Hegseth.”  So actually there was no violation of the promise to limit “official comments.” And the fact that Hegseth has a personal opinion about Kelly’s conduct should have no bearing on the “impartiality” and “due process” that Senator/Captain Kelly will receive. Right?

Good point!  I jumped the gun in equating Pete Hegseth in his official capacity and Pete Hegseth in his personal capacity. The fact that Hegseth has prejudged Kelly’s guilt in his personal capacity says nothing about whether he can be impartial in his official capacity! Also, war is peace, freedom is slavery, and sycophancy is due process. With thinking like that, you could be the next White House press secretary! (Assuming you meet the physical requirements, of course).

Anyway, the “investigation” was conducted and a few weeks later the secretary, in his official capacity, announced the results. You will be shocked to find out that it did not go well for Kelly. After all that impartiality and due process, Secretary Hegseth (not to be confused with Pete Hegseth the rando with personal opinions) issued a letter of censure to Kelly “for conduct that I have determined to be prejudicial to good order and discipline in the Armed Forces of the United States, conduct which brings discredit upon the same and conduct unbecoming an officer.” In addition to issuing this formal censure, Hegseth stated:

I believe good cause exists to reopen the determination of your retired grade under the provisions of 10 U.S.C. §1370. Accordingly, I will direct the Secretary of the Navy to recommend whether a reduction in grade is appropriate in your case.

After receiving the Secretary of the Navy’s recommendation, I will determine if a reduction is warranted. Any reduction in retired grade would result in a corresponding reduction in retired pay.

The censure letter closes with the observation that “[y]our status as a sitting United States Senator does not exempt you from accountability for conduct that undermines good order and discipline in our Armed Forces.”

Personally, I was on pins and needles waiting to see what the impartial recommendation from the secretary of the navy would be. And what Secretary Hegseth would decide to do about what he had already described on X as “the totality of Captain (for now) Kelly’s reckless misconduct.”

Unfortunately, Kelly short-circuited all this due process by bringing suit in federal court against Secretary Hegseth, as well as the Department of Defense (the actual name of the department Hegseth leads), the secretary of the navy (who I will not name since he has recently had all the publicity he needs), and the Department of the Navy. Kelly asked for a temporary restraining order and preliminary injunction with regard to the administrative proceedings against him, alleging that they, among other things, violated the First Amendment, the Speech or Debate Clause, the separation of powers and his due process rights. The case was assigned to Judge Richard Leon, who in a January 2026 hearing expressed some skepticism about the legal and constitutional basis for the proceedings against Kelly but declined to rule immediately.

The Trump administration then doubled down (another shock). Not content with administrative proceedings against Kelly based on the (highly debatable) legal theory that his status as a retired military officer restricts his First Amendment rights to criticize the government, it sought to criminally indict Kelly and the other Democratic senators and representatives on charges related to the making of the video. It has been reported that the proposed indictments, which have not been made public, charged the defendants with seditious conspiracy. In any event, notwithstanding the (mostly deserved) reputation of grand juries as rubber stamps for the prosecution, on Tuesday, February 10, the federal grand jury to which these charges were presented refused to issue any indictments. (It has been reported that this decision was unanimous).

Two days later (i.e., yesterday) Judge Leon ruled that Kelly was likely to succeed on the merits of his First Amendment claim (therefore rendering it unnecessary to consider the remaining claims) and issued a preliminary injunction in his favor. In a Leonesque opinion filled with too many exclamation marks, the court blasted the government’s actions as textbook retaliation for protected political speech. The court rejected the government’s argument that retired military officers were entitled to reduced First Amendment rights, and it found that argument particularly troubling in the case of a sitting senator. As Leon puts it, “if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the Executive, our representative system of Government cannot function!” Slip op. at 22 (emphasis in original). The judge closed with the (forlorn) hope that his opinion will enable Secretary Hegseth and his fellow defendants to “more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!” Slip op. at 29 (emphasis in original) (warned you about the exclamation marks).

One point made by the court is noteworthy. It states that “Defendants rest their entire First Amendment defense on the argument that the more limited First Amendment protection for active-duty members of the military extends to a retired naval captain.” Slip op. at 19 (emphasis in original). If this accurately characterizes the government’s position, it suggests that even under the government’s own theory there could not possibly be a constitutional basis for indicting the lawmakers who were not retired military officers. And even as to Kelly himself, the government’s position would not seem to provide a basis for criminal, as opposed to administrative, action. See Slip op. at 23 n.5 (noting that the government does not press an argument that Kelly’s speech falls into an unprotected category like incitement). Continue reading “The Unitary Executive is Watching You”

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Justice Barrett, Liquidation, and the Obiter Dicta of the Myers Case

During the December 8, 2025 oral argument in Trump v. Slaughter (involving the constitutionality of for cause limitations on the removal of FTC commissioners), Justice Barrett asked Slaughter’s counsel (Amit Agarwal) a question that is worth further exploration:

JUSTICE BARRETT:  Counsel, let me say –let –let’s say, just assume, that I disagree with you about the history. Let’s assume that I think –I’ll –I’ll grant you for this purpose that the Decision of 1789, if you just took it in isolation, may be not as conclusive as Myers thought it was.  I’ll just grant that you for purposes of this question. But let’s say that I think the liquidation argument throughout the 19th century shows that by the time of the end of the 19th century up until we get to the ICC and the emergence of what starts to look like the more modern independent agency, that the government has the better of the argument. But let’s say that in 1887, after the ICC and then after the FTC and then after Humphrey’s, when there was more the explosion of independent agencies, that –let’s just assume, again, for this purpose, that at that point, yes, you do have precedents like Humphrey’s.  Humphrey’s clearly is –is, you know, a good case for you. Do you still lose if I think as of 1887 it was liquidated, it was settled, but then we did have cases and congressional practices that veered from that unbroken law?

Transcript, at 158-59.

The precise question Barrett is asking is whether a constitutional issue that has been “liquidated” (i.e., resolved by not by original meaning or judicial decision, but by a course of government practice and general acquiescence) at one point in time can ever become “unliquidated” such that the original settlement is no longer binding. Or, presumably, whether it can be “reliquidated” such that there is a new legal settlement that itself becomes binding.

I have no particularly strong views on this question, but the analysis in Professor Baude’s 2019 law review article on this topic is persuasive. See William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 53-59 (2019) (discussing whether liquidation is necessarily permanent). Baude argues that liquidations should be analogized to judicial precedent, which “suggest that in practice, liquidated provisions can be unliquidated or reliquidated.” Id. at 56. Moreover, even scholars who support stricter adherence to liquidations do not claim that they enjoy absolute permanence. Compare id. at 53 (quoting Professor Caleb Nelson as arguing that liquidations were expected to be permanent in the absence of “extraordinary and peculiar circumstances”).

In the context of the Slaughter case, the Court would be setting aside a practice of establishing independent multimember agencies, which has existed at least since the creation of the Interstate Commerce Commission (ICC) in 1887, and overruling a judicial precedent, Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which affirmed the constitutionality of that practice, in favor of a liquidation which occurred over the years between 1789 and 1887. Even if pre-1887 liquidation would have prohibited the establishment of such independent agencies (which we will get to in a minute), this seems rather inconsistent, to put it mildly, with “liquidation’s goal of providing stability by matching meaning to publicly accepted practice.” Baude, 71 Stan. L. Rev. at 56. One might well conclude that such a situation would constitute “extraordinary and peculiar circumstances” to justify disregarding the earlier liquidation. Indeed, Professor Nelson himself seems to think so.

What Was Actually Liquidated?

In my view, however, even more important than Barrett’s explicit question are those raised by her set up. Was there a liquidation of the removal question prior to 1887? If so, when did that liquidation occur? And what was the scope of that liquidation? Continue reading “Justice Barrett, Liquidation, and the Obiter Dicta of the Myers Case”