View source for Unitary executive theory

{{Short description|Interpretation of the US Constitution regarding presidential power}}
{{Use American English|date=September 2024}}
{{Use mdy dates|date=September 2024}}
{{United States constitutional law}}

In [[American law]], the '''unitary executive theory''' is a [[Constitutional law of the United States|constitutional law]] theory according to which the [[president of the United States]] has sole authority over the [[Executive branch of the United States government|executive branch]].<ref> Cornell Law School  ''Legal Information Institute Unitary Executive Theory (UET).'' [https://www.law.cornell.edu/wex/unitary_executive_theory_%28uet%29] (Web). Retrieved September 24, 2024. </ref> The theory often comes up in [[Jurisprudence|jurisprudential]] disagreements about the president's ability to remove employees within the executive branch; transparency and access to information; discretion over the implementation of new laws; and the ability to influence agencies' rule-making.<ref>{{cite book |last1=Dodds |first1=Graham G. |chapter=Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles |date=2024 |title=Leadership and Politics |page=541 |editor-last=Akande |editor-first=Adebowale |url=https://link.springer.com/10.1007/978-3-031-56415-4_22 |access-date=2024-07-18 |place=Cham |publisher=Springer Nature Switzerland |language=en |doi=10.1007/978-3-031-56415-4_22 |isbn=978-3-031-56414-7 |last2=Kelley |first2=Christopher S.}}</ref> There is disagreement about the doctrine's strength and scope. More expansive versions are controversial for both constitutional and practical reasons.<ref name="Dodds 2023 487–517">{{cite book |last=Dodds |first=Graham G. |chapter=Is the President a King? The Unitary Executive Theory and the Presidency of Donald J. Trump |date=2023 |title=U.S. Democracy in Danger: The American Political System Under Assault |pages=487–517 |editor-last=Akande |editor-first=Adebowale |chapter-url=https://doi.org/10.1007/978-3-031-36099-2_21 |access-date=2024-07-12 |series=Springer Studies on Populism, Identity Politics and Social Justice |place=Cham |publisher=Springer Nature Switzerland |language=en |doi=10.1007/978-3-031-36099-2_21 |isbn=978-3-031-36099-2}} </ref><ref name=":2" /><ref>{{cite book |last1=Dodds |first1=Graham G. |chapter=Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles |date=2024 |title=Leadership and Politics |pages=547 |editor-last=Akande |editor-first=Adebowale |chapter-url=https://link.springer.com/10.1007/978-3-031-56415-4_22 |access-date=2024-07-18 |place=Cham |publisher=Springer Nature Switzerland |language=en |doi=10.1007/978-3-031-56415-4_22 |isbn=978-3-031-56414-7 |last2=Kelley |first2=Christopher S. |quote=Constitutionally, the unitary executive theory is not some long-established doctrine that is widely accepted by courts and other political actors. Far from it, the constitutional status of the theory is rather controversial.}}</ref> Since the [[Reagan administration]], the [[Supreme Court of the United States|Supreme Court]] has embraced a stronger unitary executive, which has been championed primarily by its conservative justices, the [[Federalist Society]], and [[the Heritage Foundation]].<ref>{{Cite news |last=Khardori |first=Ankush |date=August 12, 2024 |title=JD Vance's 'Constitutional Crisis' in the Making |url=https://www.politico.com/news/magazine/2024/08/12/what-jd-vance-gets-wrong-about-the-supreme-court-00173445 |work=[[Politico]] |access-date=24 October 2024 }}</ref><ref>{{Cite web |date=2024-07-09 |title=A look at the Project 2025 plan to reshape government and Trump's links to its authors |first=Laura |last=Barrón-López  |url=https://www.pbs.org/newshour/show/a-look-at-the-project-2025-plan-to-reshape-government-and-trumps-links-to-its-authors |access-date=2024-08-15 |website=[[PBS News]] |language=en-us}}</ref><ref>{{Cite news |last=Savage |first=Charlie |date=2024-07-04 |title=Legal Conservatives' Long Game: Amp Up Presidential Power but Kneecap Federal Agencies |url=https://www.nytimes.com/2024/07/04/us/politics/conservative-legal-movement-supreme-court.html |access-date=2024-08-15 |work=[[The New York Times]] |language=en-US |issn=0362-4331}}</ref><ref>{{Cite web |last=Shapiro |first=Ari |date=July 2, 2024 |title=Immunity ruling continues a trend of expanding presidential power, scholar says |url=https://www.wfae.org/united-states-world/2024-07-02/immunity-ruling-continues-a-trend-of-expanding-presidential-power-scholar-says |access-date=2024-08-15 |website=WFAE 90.7 - Charlotte's NPR News Source |language=en |quote=When the Supreme Court dramatically expanded presidential power yesterday, it continued a trend that's been going in one direction for a long time.}}</ref>

The theory is largely based on the [[Vesting Clauses|Vesting Clause]], which vests<ref name=":24">{{cite web |last1=Prakash |first1=Saikrishna B. |author-link=Saikrishna Prakash |last2=Schroeder |first2=Christopher H. |author-link2=Christopher H. Schroeder |title=Interpretation and Debate: The Vesting Clause |url=https://constitutioncenter.org/the-constitution/articles/article-ii/clauses/347 |access-date=July 29, 2024 |website=[[National Constitution Center]] |language=en}}</ref><ref>{{cite book |last1=Dodds |first1=Graham G. |title=Leadership and Politics |last2=Kelley |first2=Christopher S. |date=2024 |publisher=Springer Nature Switzerland |isbn=978-3-031-56414-7 |editor-last=Akande |editor-first=Adebowale |place=Cham |pages=540 |language=en |chapter=Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles |doi=10.1007/978-3-031-56415-4_22 |quote=Unitarians fixate on the wording of Article II's 'Vesting' clause (versus the wording in Articles I and III), arguing that the president alone has all the executive power, which means any power that is executive in nature, even if it is not directly listed in the Constitution, belongs to the president |access-date=2024-07-18 |chapter-url=https://link.springer.com/10.1007/978-3-031-56415-4_22}}</ref> the president with the "executive Power" and places the office atop the [[Executive (government)|executive branch]].<ref>{{Cite journal |last=Sitaraman |first=Ganesh |date=2020 |title=The Political Economy of the Removal Power |url=https://harvardlawreview.org/print/vol-134/the-political-economy-of-the-removal-power/ |journal=Harvard Law Review|volume=134|pages=380}}</ref><ref name=":24" /> Critics debate over how much power and discretion the Vesting Clause gives a president,<ref>{{Cite journal |last=Strauss |first=Peter L. |year=1984 |title=The Place of Agencies in Government |url=https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1211&context=faculty_scholarship |journal=[[Columbia Law Review]] |publisher=[[Columbia School of Law]] |location=New York City |volume=84 |pages=598 |doi=10.2307/1122501 |jstor=1122501 |quote=Article II speaks directly only about elected officials, chiefly the President and his powers; it describes those powers in the most summary of terms. He is vested generally with 'the executive Power,'  but what that is in the domestic context does not readily appear. Putting aside foreign relations and military authority-a very large part of the Presidency, but not the focus of this essay 89-he has the following powers and/or responsibilities.}}</ref><ref name=":25">{{Cite journal |last=Shugerman |first=Jed Handelsman |date=June 2022 |title=Vesting |url=https://review.law.stanford.edu/wp-content/uploads/sites/3/2022/06/Shugerman-74-Stan.-L.-Rev.-1479.pdf |journal=[[Stanford Law Review]] |publisher=[[Stanford Law School]] |location=Stanford, California |volume=74 |quote=This Article offers a close textual reading of the word 'vesting' and an examination of its eighteenth-century usage and context, with the first survey of available dictionaries (from 1637 to 1846), colonial charters and state constitutions, the Constitutional Convention, and Ratification debates. Dictionaries defined 'vest' in terms of basic landed property rights, without reference to exclusivity or indefeasibility, and rarely with any reference to offices or powers. Other legal documents and digital collections of the Founders' papers indicate a range of usage, from 'fully vested' to 'simply vested' to 'partly vested,' so that the word 'vesting' by itself would signify less completeness. Meanwhile, words used in the Constitution or by the Framers to convey exclusivity or indefeasibility (for example, 'all,' 'exclusive,' 'sole,' 'alone,' or 'indefeasible') are missing from the Executive Vesting Clause. The ordinary meaning of 'vesting' was most likely a simple grant of powers without signifying the impermissibility of legislative conditions such as good-cause requirements for removals, undermining the unitary theory's originalist basis. On the other hand, the 'all' in the Legislative Vesting Clause may be more legally meaningful for nondelegation.}}</ref> and emphasize other countermeasures in the Constitution that provide [[checks and balances]] on [[Powers of the president of the United States|executive power]]. In the 2020s, the Supreme Court held that, regarding the powers granted by the Vesting Clause, "the entire 'executive Power' belongs to the President alone".<ref name="auto1">{{cite court|litigants=Seila Law LLC v. Consumer Fin. Prot. Bureau|vol=591|reporter=U.S.|opinion=197|pinpoint=2197|court=|year=2021|url=https://supreme.justia.com/cases/federal/us/591/19-7/}}</ref><ref name="auto">{{Cite journal|last=Sitaraman|first=Ganesh|date=2020|title=The Political Economy of the Removal Power|journal=Harvard Law Review|volume=134|pages=380}}</ref>

Since its inception, the president of the United States has exercised significant authority over the executive branch, but presidents have often sought to expand their reach. This has led to conflicts with [[United States Congress|Congress]] and its legislative powers, in addition to its powers to delegate under the [[Necessary and Proper Clause]]. The Reagan administration was the first presidential administration to cite unitary executive theory.<ref>{{Cite news |last1=Swan |first1=Jonathan |last2=Savage |first2=Charlie |last3=Haberman |first3=Maggie |authorlink3=Maggie Haberman |date=July 17, 2023 |title=Trump and Allies Forge Plans to Increase Presidential Power in 2025 |url=https://www.nytimes.com/2023/07/17/us/politics/trump-plans-2025.html |access-date=August 15, 2024 |work=[[The New York Times]] |language=en-US |issn=0362-4331 |quote=The Supreme Court in 1935 and 1988 upheld the power of Congress to shield some executive branch officials from being fired without cause. But after justices appointed by Republicans since Reagan took control, it has started to erode those precedents.}}</ref> It then entered public discourse with the [[George W. Bush administration]] and found a strong advocate in President [[Donald Trump]].<ref name=":22" /> Presidents of both parties tend to view the idea that they should have increased power more favorably when in office.<ref name=":22" />

Beyond disputing its constitutionality,<ref name=":42" /><ref name=":14" /><ref name="Manheim Ides" /><ref name=":15" /> common criticisms include the ideas that the theory could lead to more corruption and less qualified employees.<ref name=":19">{{Cite web |last=Somin |first=Ilya |date=May 3, 2018 |title=Rethinking the Unitary Executive |url=https://reason.com/volokh/2018/05/03/rethinking-the-unitary-executive/ |access-date=July 20, 2024 |website=[[Reason (magazine)|Reason.com]] |language=en-US |quote=UPDATE: I perhaps should have mentioned the oft-made argument that maintaining a unitary executive—even when it comes to powers beyond the scope of the original meaning of the Constitution—is desirable because it enhances political accountability. Even if true, this claim is about what is pragmatically desirable, not about the text and original meaning of the Constitution. But the claim is dubious even on its own terms. The greater the scope of executive power, the harder it is for rationally ignorant voters to keep track of more than a small fraction of it. Moreover, it becomes difficult to figure out how to weigh the president's performance in one area against what he does in others (assuming there is variation in quality, as will often be the case). It is therefore unlikely that concentrating a vast range of power in the hands of one person does much to enhance accountability.}}</ref><ref>{{Cite news |last=Pilkington |first=Ed |date=June 7, 2024 |title=Trump plots capture of DoJ in renewed assault on US justice system |url=https://www.theguardian.com/us-news/article/2024/jun/07/trump-justice-department |access-date=2024-07-19 |work=[[The Guardian]] |language=en-GB |issn=0261-3077 |quote='That's what happens in authoritarian states – there is a semblance of a legal system, but it becomes useless,' she said. 'If that happens here it would be extremely troubling. We're not there yet. But I do think a second term could cause significant damage that may or may not be permanent.'}}</ref><ref name=":20">{{Cite magazine |date=July 13, 2023 |title=How MAGA Republicans plan to make Donald Trump's second term count |url=https://www.economist.com/leaders/2023/07/13/how-maga-republicans-plan-to-make-donald-trumps-second-term-count |access-date=July 19, 2024 |magazine=[[The Economist]] |issn=0013-0613 |quote=One reason for the professionalisation of the bureaucracy in the 19th century was to provide the ship of state with enough ballast to keep sailing from one administration to the next&nbsp;... The vain and tyrannical whims of an emperor-president would emerge from the rubble.}}</ref> Some critics point to countries where similar changes to a more unitary executive have resulted in [[democratic backsliding]],<ref name=":17">{{cite book |last1=Dodds |first1=Graham G. |chapter=Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles |date=2024 |title=Leadership and Politics |pages=548, 550–551 |editor-last=Akande |editor-first=Adebowale |chapter-url=https://link.springer.com/10.1007/978-3-031-56415-4_22 |access-date=2024-07-18 |place=Cham |publisher=[[Springer Nature Switzerland]] |language=en |doi=10.1007/978-3-031-56415-4_22 |isbn=978-3-031-56414-7 |last2=Kelley |first2=Christopher S. |quote=Turning devoted public servants into mere servants of their master and by privileging presidential desires over institutional expertise and independence, the theory risks turning the chief executive into an absolute monarch. Moreover, by enlarging the already considerable powers of the presidency, it threatens to upset the country's delicate inter-branch balance by relegating Congress and the judiciary to inferior status&nbsp;... Trump showed us what happens when you support the use of such power with a person who appears to care little about the institution, the Constitution, or America's democracy. ... Thus the United States could see the unitary executive theory employed to significantly erode basic democratic principles.}}</ref><ref>{{Cite news |last1=Howell |first1=William |author-link=William G. Howell |last2=Moe |first2=Terry |author-link2=Terry M. Moe |date=November 1, 2021 |title=Analysis {{!}} Big government vastly expanded presidential power. Republicans use it to sabotage the administrative state |url=https://www.washingtonpost.com/politics/2021/11/01/big-government-vastly-expanded-presidential-power-republicans-use-it-sabotage-administrative-state/ |access-date=July 20, 2024 |newspaper=[[The Washington Post]] |language=en-US |issn=0190-8286 |quote=The unitary executive theory provides a veneer of legal authority for an authoritarian-inclined president to engage in a range of anti-democratic behaviors. By the time George W. Bush had shown what the unitary executive could justify – torturing prisoners, surveilling ordinary citizens, ignoring congressional statutes – constitutional scholars were already pointing to presidents as the chief threat to American democracy. With the rise of right-wing populism and the election of Trump in 2016, this threat was magnified by the accompanying transformation of the Republican Party itself, with its elites in Washington and around the country abetting Trump's authoritarian behavior in office&nbsp;... The Republican Party is now an anti-democracy party, and its future presidents – empowered by the unitary executive theory – threaten the fundamentals of the U.S. democratic system&nbsp;... Democrats have been complicit, but Republicans have pushed the trajectory beyond democratic bounds.}}</ref><ref name=":13">{{Cite journal |last=Driesen |first=David |date=November 1, 2020 |title=The Unitary Executive Theory in Comparative Context |url=https://repository.uclawsf.edu/hastings_law_journal/vol72/iss1/1 |journal=[[UC Law Journal]] |publisher=[[UC Berkeley School of Law]] |location=Berkeley, California |volume=72 |issue=1 |pages=1 |issn=0017-8322}}</ref><ref name=":16">{{Cite web |last=Greenhut |first=Steven |date=June 28, 2024 |title=Project 2025: The Heritage Foundation's plan to embrace bigger government during Trump's second term |url=https://reason.com/2024/06/28/project-2025-the-conservative-agenda-to-embrace-bigger-government-during-trumps-second-term/ |access-date=July 11, 2024 |website=[[Reason (magazine)|Reason]] |language=en-US |quote=But implementing what critics call 'unitary executive theory'—i.e., putting all aspects of the federal government under the control of the president—is a prescription for authoritarianism and abuse.}}</ref> or to the vast majority of democracies (including U.S. state and local governments) that give their executive leader less power.<ref name=":13" /><ref name=":183">{{Cite web |last1=Hennessey |first1=Susan |last2=Wittes |first2=Benjamin |date=January 21, 2020 |title=The Disintegration of the American Presidency |url=https://www.theatlantic.com/ideas/archive/2020/01/trump-myth-unitary-executive/605062/ |access-date=July 20, 2024 |website=[[The Atlantic]] |language=en |quote=The American presidency, in its unity, is profoundly dissimilar from nearly all other executives in democratic systems that have persisted over time. The founders of other democracies have, quite intentionally, decided differently from the founders of this one.}}</ref><ref name=":9">{{Cite journal |last1=Berry |first1=Christopher R. |last2=Gersen |first2=Jacob E. |date=2008 |title=The Unbundled Executive |url=https://www.jstor.org/stable/27653959 |journal=[[The University of Chicago Law Review]] |publisher=[[University of Chicago School of Law]] |location=Chicago, Illinois |volume=75 |issue=4 |pages=1399–1400 |issn=0041-9494 |jstor=27653959 |quote=Indeed, partial unbundling of executive authority is the norm rather than an exception in virtually all levels of non-national government units in the United States, of which there are more than 80,000. Authority that the governor or mayor would otherwise exercise is frequently given to a specific state or local officer. Often these officers are directly elected by the public. Other times they are elected by the legislature; other times still, they are appointed by another state official... The average number of elected executive offices per state was 6.7 in 2002&nbsp;...}}</ref>

==Terminology==
The term "unitary executive" dates back to the [[Reagan administration]],<ref name=":10">{{Cite news |date=September 15, 2023 |title=The 2024 Executive Power Survey – Unitary Executive |url=https://www.nytimes.com/interactive/2023/us/politics/unitary-executive-executive-power.html |access-date=July 19, 2024 |work=[[The New York Times]] |language=en-US |issn=0362-4331 |quote=Lawyers in the Reagan-era Justice Department developed the so-called unitary executive theory, an expansive interpretation of presidential power that aims to centralize greater control over the government in the White House. Under stronger versions of this vision, Congress cannot fracture the president's control of federal executive power, such as by vesting the power to make certain decisions in an agency head even if the president orders the agency to make a different decision, or by limiting a president's ability to enforce his desires by removing any executive branch official – including the heads of 'independent' agencies – at will.}}</ref><ref name=":11" /><ref name=":7" /><ref name=":12" /> but supporters of the unitary executive theory, sometimes referred to as "unitarians", contend the principle dates to the [[founding of the United States]].<ref>{{cite book |last1=Dodds |first1=Graham G. |chapter=Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles |date=2024 |title=Leadership and Politics |pages=540 |editor-last=Akande |editor-first=Adebowale |chapter-url=https://link.springer.com/10.1007/978-3-031-56415-4_22 |access-date=2024-07-18 |place=Cham |publisher=[[Springer Nature Switzerland]] |language=en |doi=10.1007/978-3-031-56415-4_22 |isbn=978-3-031-56414-7 |last2=Kelley |first2=Christopher S. |quote=The term 'unitary executive' dates to the 1980s, but unitarians contend that the idea goes back to the founding era.}}</ref> There is no single canonical interpretation of the theory, with different sources defining it differently.<ref>{{cite book |last1=Dodds |first1=Graham G. |chapter=Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles |date=2024 |title=Leadership and Politics |pages=539 |editor-last=Akande |editor-first=Adebowale |chapter-url=https://link.springer.com/10.1007/978-3-031-56415-4_22 |access-date=2024-07-29 |place=Cham |publisher=[[Springer Nature Switzerland]] |language=en |doi=10.1007/978-3-031-56415-4_22 |isbn=978-3-031-56414-7 |quote=There is no one canonical account of the unitary executive theory, though various academics have provided their own characterizations of it. (See Calabresi and Yoo (2008), Barilleaux and Kelley (2010), Dodds (2019), Crouch et al. (2020), and Skowronek et al. (2021).) |last2=Kelley |first2=Christopher S.}}</ref> Some distinguish between stronger and weaker versions; most contemporary definitions focus on one of the theory's stronger versions. Broadly speaking, strong versions of the theory hold that the President has control over all officials in the executive branch; a weak version holds that Congress can significantly limit the President's authority, despite residing in a separate branch of government.<ref>{{cite journal | url=https://www.journals.uchicago.edu/doi/10.1086/714860 | doi=10.1086/714860 | title=The Unitary Executive: Past, Present, Future | date=2021 | last1=Sunstein | first1=Cass R. | authorlink1=Cass R. Sunstein |last2=Vermeule | first2=Adrian | journal=[[The Supreme Court Review]] | publisher=[[University of Chicago Press]] |location=Chicago, Illinois |volume=2020 | pages=83–117 | url-access=subscription }}</ref>

==Theory==
The unitary executive theory has sparked significant debate as to what the Constitution says about presidential power.<ref>{{Cite book |last1=Skowronek |first1=Stephen |url=https://www.worldcat.org/title/on1163936736 |title=Phantoms of a beleaguered republic: the deep state and the unitary executive |last2=Dearborn |first2=John A. |last3=King |first3=Desmond S. |date=2021 |publisher=[[Oxford University Press]] |isbn=978-0-19-754308-5 |edition=new |location=New York City |pages=29 |oclc=on1163936736}}</ref> Proponents often advance the theory when arguing for more presidential power in hiring and firing members of the executive branch, including historically independent [[Administrative law judge|administrative law judges]],<ref>{{Cite web |date=December 10, 2024 |title=Presidential Adjudication - Virginia Law Review |url=https://virginialawreview.org/articles/presidential-adjudication/ |access-date=February 26, 2025 |website=virginialawreview.org |language=en-US}}</ref><ref>{{Cite journal |last=Bremer |first=Emily S. |date=December 10, 2024 |title=Presidential Adjudication |url=https://virginialawreview.org/articles/presidential-adjudication/ |journal=[[Virginia Law Review]] |publisher=[[University of Virginia School of Law]] |location=Charlottesville, Virginia |volume=110 |issue=8}}</ref> prosecutors (like special counsels),<ref>{{Cite journal |last=Kaufman |first=Emma |date=2024-01-01 |title=The Past and Persistence of Private Prosecution |url=https://scholarship.law.upenn.edu/penn_law_review/vol173/iss1/2/ |journal=[[University of Pennsylvania Law Review]] |publisher=[[University of Pennsylvania School of Law]] |location=Philadelphia, Pennsylvania |volume=173 |issue=1 |pages=89 |doi=10.58112/uplr.173-1.2}}</ref><ref name=":26" /> [[Office of the Inspector General of the United States Army|inspectors general]],<ref name=":26">{{Cite web |last=Millhiser |first=Ian |date=2025-02-03 |title=The legal theory that would make Trump the most powerful president in US history |url=https://www.vox.com/scotus/397729/supreme-court-unitary-executive-donald-trump |access-date=February 13, 2025 |website=[[Vox.com|Vox]] |language=en-US |quote=So Scalia's idea that protection is exclusive to the executive is a fairly new idea.}}</ref> the [[civil service]],<ref>{{Cite journal |last=Perez |first=Alejandro |date=December 2024 |title=Note: THE RETURN OF SCHEDULE F AND THE PERILS OF MANDATING LOYALTY IN THE CIVIL SERVICE |url=https://www.bu.edu/bulawreview/files/2025/02/PEREZ.pdf |journal=[[Boston University Law Review]] |publisher=[[Boston University Law School]] |location=Boston, Massachusetts |volume=104 |issue=7}}</ref> and commissions that cover topics like elections and communications that could tilt the playing field in favor of the president's party if under the president's control.<ref name=":27" />

=== Vesting Clause ===
The [[Executive Vesting Clause|Vesting Clause]] of [[Article Two of the United States Constitution|Article II of the Constitution]], perhaps the most cited clause in favor of a stronger executive, reads, "The executive Power [of the United States] shall be vested in a President of the United States of America." Because this language vests all executive power solely in the president, proponents of a unitary executive maintain that all government officials who wield executive power are thus subject to the president's direction and control, as no one else is granted those powers under the Constitution.<ref>and Debate: The Vesting Clause |url=https://constitutioncenter.org/the-constitution/articles/article-ii/clauses/347 |access-date=July 29, 2024 |website=[[National Constitution Center]] |language=en}}</ref> In 2020, the Supreme Court ruled 5–4 that, under the Vesting Clause, "the entire 'executive Power' belongs to the President alone".<ref name="auto1"/><ref>{{Cite journal |last=Sitaraman |first=Ganesh |date=2020 |title=The Political Economy of the Removal Power |journal=Harvard Law Review |volume=134 |pages=380}}</ref>

=== Take Care Clause ===
Proponents of unitary executive theory additionally argue that the [[Take Care Clause]] ("The President shall take care that the laws be faithfully executed") creates a "hierarchical, unified executive department under the direct control of the President".<ref name="plural">{{cite journal |last1=Calabresi |first1=Steven |last2=Rhodes |first2=Kevin |name-list-style=amp |year=1992 |title=The Structural Constitution: Unitary Executive, Plural Judiciary |journal=[[Harvard Law Review]] |volume=105 |issue=6 |page=1165 |doi=10.2307/1341727 |jstor=1341727}}</ref> Critics point out that the clause does not specify that the president should be the one to execute the laws, but to make sure that others are faithfully executing their responsibilities. In this regard, the Take Care Clause's primary historical function was to impose a duty on the president, not to expand his powers.<ref>{{Cite journal|last=Shugerman|first=Jed Handelsman|date=June 2022|title=Vesting |url=https://review.law.stanford.edu/wp-content/uploads/sites/3/2022/06/Shugerman-74-Stan.-L.-Rev.-1479.pdf |journal=Stanford Law Review|volume=74|pages=1499}}</ref> They point to "faithfully executed" as meaning to follow court rulings and legislative statutes regardless of whether a president agrees with them.<ref name=":23">{{Cite book |last1=Skowronek |first1=Stephen |title=Phantoms of a beleaguered republic: the deep state and the unitary executive |last2=Dearborn |first2=John A. |last3=King |first3=Desmond S. |date=2021 |publisher=Oxford University Press |isbn=978-0-19-754308-5 |location=New York City |pages=32 |quote=The conception of 'good government' is consistent with a reading of the 'take care' clause, in which presidents are charged to enforce court rulings and congressional statutes 'faithfully', regardless of their views of the substantive merits. It is reinforced by Congress's Article I authority to set rules and regulations 'necessary and proper' for the execution of its mandates.}}</ref>

=== Opinion Clause ===
Opponents of the theory point to the [[Opinion clause]], which says only that a president may ask for the opinion in writing of a department officer about any subject related to their department, which seems superfluous if the president was supposed to have extensive power.<ref>{{Cite web |last=Strauss |first=Peter L. |author-link=Peter L. Strauss |date=2024-03-05 |title=Overseer or 'The Decider'? The American President in Administrative Law |url=https://faculti.net/overseer-or-the-decider/ |access-date=2024-07-13 |website=[[Faculti]] |language=en-US |type=Video lecture}}</ref>

=== King of Great Britain ===
Proponents have made claims about the powers wielded by the [[King of Great Britain]] (often inaccurately referred to in this context as the "King of England") at the time of the founding of the United States and their relationship to the founding intent of the executive branch to justify the theory. The actual powers held by the Crown are disputed by legal historians as "conventional wisdoms", as Parliament held significant power over appointments and dismissals of some executive personnel, while others served for life and were independent of the king. Law professor Daniel Birk argues there was no evidence that the king had such powers outside specific areas like foreign policy and the military, saying the king could not direct most law enforcement, regulatory or administrative officials.<ref name=":6" /> Invoking the king as an argument for expanded executive power was first made by the Supreme Court in ''[[Myers v. United States]]'' (1926), a decision delivered by Chief Justice [[William Howard Taft]], a former president of the United States.<ref name=":6">{{Cite journal |last=Birk |first=Daniel D. |date=January 2021 |title=Interrogating the Historical Basis for a Unitary Executive |url=https://review.law.stanford.edu/wp-content/uploads/sites/3/2021/01/Birk-73-Stan.-L.-Rev.-175.pdf |journal=[[Stanford Law Review]] |publisher=[[Stanford University School of Law]] |location=Stanford, California |volume=45 |issue=6 |pages=2177 |doi= |issn=0038-9765 |quote=As this Article shows, however, the unitarians' claims about the original meaning of the executive power are largely unfounded. The ability to remove executive officials was not one of the prerogative powers of the British Crown. Moreover, the King neither appointed nor was able to remove all of his principal officers, many of whom held their offices for life or pursuant to other forms of tenure and who operated independently of the King's direction or control.}}</ref> Eric Nelson argued that some Founders wanted more checks on a president because, unlike a hereditary monarch, their well-being was not as intrinsically tied to the nation.<ref>{{Cite magazine |last=Nelson |first=Eric |date=July 9, 2024 |title=Justice Sotomayor was right for the wrong reasons |url=https://www.economist.com/by-invitation/2024/07/09/justice-sotomayor-was-right-for-the-wrong-reasons |access-date=July 11, 2024 |magazine=[[The Economist]] |issn=0013-0613}}</ref>

=== Discussion ===
{{Conservatism US}}
According to law professors [[Lawrence Lessig]] and [[Cass Sunstein]] in 1994, "No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version."<ref name="Lessig">{{cite journal |last1=Lessig |first1=Lawrence |authorlink1=Lawrence Lessig |last2=Sunstein |first2=Cass |authorlink2=Cass R. Sunstein |year=1994 |title=The President and the Administration |url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=11680&context=journal_articles |journal=[[Columbia Law Review]] |publisher=[[Columbia University Law School]] |location=New York City |volume=94 |issue=1 |pages=8-9 |doi=10.2307/1123119 |jstor=1123119|url-access=subscription }}</ref><sup>:8-9</sup> In either a stronger or a weaker form, the theory would limit Congress' power to divest the president of control of the executive branch. The hypothetical "strongly unitary" theory posits stricter limits on Congress than the "weakly unitary" theory.<ref name="Lessig" /> But parts of the Constitution grant Congress extensive powers. Article I of the Constitution gives it the exclusive power to make laws, which the president then must execute, provided that those laws are constitutional.<ref name=":23" /> Article I, Section 8, clause 18, known as the [[Necessary and Proper Clause]], grants Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution all Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof".<ref>{{Cite web |last=Strauss |first=Peter L. |author-link=Peter L. Strauss |date=2024-03-05 |title=Overseer or 'The Decider'? The American President in Administrative Law |url=https://faculti.net/overseer-or-the-decider/ |access-date=2024-07-13 |website=Faculti |language=en-US}}</ref> The Constitution also [[Article One of the United States Constitution#Enumerated powers|grants Congress power]] "To make Rules for the Government and Regulation of the land and naval Forces."

Some proponents of the theory think that, "at a minimum, the President should be able to remove all executive-branch officers, including the heads of [[Independent agencies of the United States government|independent regulatory agencies]], at any time and for any reason."<ref name=":62">{{Cite journal |last=Birk |first=Daniel D. |date=January 2021 |title=Interrogating the Historical Basis for a Unitary Executive |url=https://review.law.stanford.edu/wp-content/uploads/sites/3/2021/01/Birk-73-Stan.-L.-Rev.-175.pdf |journal=[[Stanford Law Review]] |publisher=[[Stanford University Law School]] |location=Stanford, California |volume=45 |issue=6 |pages=2177 |doi= |issn=0038-9765 |quote=See CALABRESI & YOO , supra note 1, at 3-4; see also, e.g., Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 A LA. L. Rev. 1205, 1225 (2014) (asserting that '[f]or adequate constitutional control of execution, the President must have the possibility of directing discretionary legal duties, even those assigned to other officers,' and thus must be able to remove all executive officers, including the heads of independent agencies); John Harrison, Addition by Subtraction, 92 VA. L. Rev. 1853, 1859–62 (2006) (characterizing executive-branch officers as 'agents' of the President whom the President must be able to remove if they do not retain his trust); cf. Morrison, 487 U.S. at 724 n.4 (Scalia, J., dissenting) (contending that the President must have 'plenary power to remove [all] principal officers,' but that inferior officers can be made 'removable for cause' so long as their appointing officers can dismiss them for 'the failure to accept supervision' (emphasis omitted))}}</ref> Proponents of a strong unitary theory argue that the president possesses ''all'' the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that Congress's power to remove executive agencies or officers from presidential control is limited. Thus, under the strongly unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power not controlled by the president.<ref name="plural" /> But independent regulatory commissions have existed since at least the early 20th century, and removal protections for their commissioners were unanimously upheld by the Supreme Court in ''[[Humphrey's Executor v. United States]]'' (1935).<ref>{{Cite web |last=Graham |first=David A. |date=2025-02-27 |title=Trump Tests the Courts |url=https://www.theatlantic.com/newsletters/archive/2025/02/trump-tests-the-courts/681861/ |access-date=2025-04-17 |website=The Atlantic |language=en}}</ref> Law professor Christine Chabot argues that the independence of the [[Federal Reserve]] and its [[Federal Open Market Committee|open market committee]] is constitutional. Chabot and Eliga Gould reference the founding-era [[Sinking Fund]] commission as an example of an independent executive agency with a similar structure, with some commissioners, namely the Vice President of the United States and Chief Justice of the Supreme Court, not subject to the president's removal power.<ref name=":0">{{Cite journal |last=Chabot |first=Christine Kexel |date=2020-11-13 |title=Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies |url=https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4925&context=ndlr |journal=[[Notre Dame Law Review]]}}</ref><ref>{{Cite web |last=Gould |first=Eliga |date=2025-03-10 |title=George Washington, a real estate investor and successful entrepreneur, knew the difference between running a business and running the government |url=https://theconversation.com/george-washington-a-real-estate-investor-and-successful-entrepreneur-knew-the-difference-between-running-a-business-and-running-the-government-250332 |access-date=2025-04-17 |website=The Conversation |language=en-US |quote=When it created a 'sinking fund' in 1790 to manage the national debt, Congress showed just how far it could constrain presidential power. Although the fund was part of the Treasury Department, whose secretary served at the president’s pleasure, the commission that oversaw it served for fixed terms set by Congress. The president could neither remove them nor tell them what to do.}}</ref> Other legal scholars have disputed the Sinking Fund's independence, referencing statutory provisions requiring presidential approval of the commission's decisions to purchase securities and the president's ability to remove a majority of its members, namely cabinet secretaries.<ref name=":0" /> Some interpret the unitary executive theory to mean that [[United States federal courts|federal courts]] cannot adjudicate disputes between [[List of United States federal agencies|agencies]], arguing it would violate the doctrine of [[separation of powers]].<ref>{{cite journal |last=Latham |first=Joshua |year=2000 |title=The Military Munitions Rule and Environmental Regulation of Munitions |url=http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bcealr/27_3/04_FMS.htm |journal=[[Boston College Environmental Affairs Law Review]] |location=Boston, Massachusetts |publisher=[[Boston College]] |volume=27 |page=467}}</ref> 

Others have pointed to the indirect selection of the president as not designed to put a strong president into office. The framers expected measured analysis by specially chosen electors who would act to choose a safe presidential candidate, and if none could be found, rely on Congress to choose one, and potentially negotiate power.<ref>{{Cite book |last1=Skowronek |first1=Stephen |title=Phantoms of a beleaguered republic: the deep state and the unitary executive |last2=Dearborn |first2=John A. |last3=King |first3=Desmond S. |date=2021 |publisher=Oxford University Press |isbn=978-0-19-754308-5 |location=New York City |pages=37}}</ref> More extreme forms of the theory have developed according to which the president's wishes may supersede the law. Former [[White House Counsel]] [[John Dean]] said: "In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters."<ref name="Dean">{{cite book |last= Dean |first= John |authorlink=John Dean |url= https://archive.org/details/brokengovernment00dean |url-access= registration |title= Broken Government |page= [https://archive.org/details/brokengovernment00dean/page/102 102] |publisher= [[Viking Press]] |location=New York City |year= 2007|isbn= 9780670018208 }}</ref> In 2019, law professor [[Ilya Somin]] argued that "no serious advocate of the theory claims that anything the president does is legal"—just within the powers vested in the executive branch.<ref name=":5">{{Cite web |last=Greenberg |first=Jon |title=What Vice gets right and wrong about Dick Cheney |url=https://www.politifact.com/article/2019/feb/08/vice-what-movie-gets-right-and-wrong/ |date=8 February 2019 |access-date=July 11, 2024 |website=[[Politifact]] |language=en-US}}</ref> There is disagreement about the doctrine's strength and scope. In 2008, [[Steven Calabresi]] and [[Christopher Yoo]] said the unitary executive theory ensured that "the federal government will execute the law in a consistent manner and in accordance with the president's wishes".<ref>{{Cite book |last1=Calabresi |first1=Steven |authorlink1=Steven Calabresi |url=https://books.google.com/books?id=4sJhrLROSc8C |title=The Unitary Executive: Presidential Power from Washington to Bush |last2=Yoo |first2=Christopher S. |authorlink2=Christopher S. Yoo |year=2008 |pages=3|publisher=[[Yale University Press]] |location=New Haven, Connecticut |isbn=978-0-300-14538-0 }}</ref> This stands in contrast to other scholarly literature, such as MacKenzie in 2008<ref>{{Cite book |last=MacKenzie |first=John P. |url=https://archive.org/details/absolutepowerhow0000mack/mode/2up |title=Absolute power? how the unitary executive theory is undermining the constitution |date=2008 |publisher=Century Foundation Press |isbn=978-0-87078-511-5 |series=A century foundation report |location=New York}}</ref> and Crouch, Rozell, and Sollenberger in 2020,<ref>{{Cite book |last=Crouch |first=Jeffrey |title=The unitary executive theory: a danger to constitutional government |last2=Rozell |first2=Mark J. |last3=Sollenberger |first3=Mitchel A. |date=2020 |publisher=University Press of Kansas |isbn=978-0-7006-3003-5 |location=Lawrence, Kansas}}</ref> that stresses that federal employees must faithfully execute the laws enacted according to the process the Constitution prescribes.

== Background ==

=== Founding era ===
The phrase "unitary executive" was discussed as early as the [[Philadelphia Convention]] in 1787, and referred only to having a single individual fill the office of president, as proposed in the [[Virginia Plan]]. The alternative was to have several executives or an executive council, as proposed in the [[New Jersey Plan]] and as promoted by [[Elbridge Gerry]], [[Edmund Randolph]], and [[George Mason]].<ref>{{cite book |title=The Anti-Federalist Papers and the Constitutional Convention Debates |publisher=Signet Classic |year=1986 |editor-last=Ketchum |editor-first=Ralph |page=67 |quote=Mr. [James] Wilson entered into a contrast of the principal points of the two plans [i.e. the Virginia Plan and the New Jersey Plan] ... These were ... A single Executive Magistrate is at the head of the one—a plurality is held out in the other.}}</ref><ref>{{cite web |year=1787 |title=Records of the Federal Convention, Article 2, Section 1, Clause 1 |url=http://press-pubs.uchicago.edu/founders/documents/a2_1_1s4.html |work=The Founder's Constitution}}</ref> [[James Madison]] was a leading advocate of the unitary executive and successfully argued in favor of the president's power to remove administrative appointees under the Constitution in the [[Decision of 1789]]. Madison said in 1789, "if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws." He had reservations about removal power extending to the [[comptroller]] of the Treasury Department, as he believed that office would share both judicial and executive responsibilities. Other legislators, such as [[Theodore Sedgwick]], [[Michael Jenifer Stone]], and [[Egbert Benson]] argued that the role would primarily be executive and should fall under the president's power. Madison ultimately withdrew his proposal to exempt the comptroller from the president's removal power.<ref>{{Cite web |last=Millhiser |first=Ian |date=2020-02-14 |title=How Justice Scalia paved the way for Trump's assault on the rule of law |url=https://www.vox.com/2020/2/14/21135083/justice-scalia-bill-barr-trump-unitary-executive-no-rule-of-law-morrison-olson |access-date=2024-07-20 |website=Vox |language=en-US}}</ref><ref>{{Cite web |first1=Schmitt |last1=Gary |first2=John |last2=Roach |date=June 2022 |title=A Madisonian Footnote to the Unitary Executive |url=https://www.aei.org/wp-content/uploads/2022/06/A-Madisonian-Footnote-to-the-Unitary-Executive.pdf?x85095 |work=AEI |language=en-US |access-date=24 October 2024 }}</ref><ref>{{cite journal |date=January 24, 2017 |title= The Unitary Executive and the Scope of Executive Power |last=Harrison |first=John |url=https://www.yalelawjournal.org/forum/the-unitary-executive-and-the-scope-of-executive-power |journal=The Yale Law Journal |volume=126}}</ref>

In 1788, the pseudonymous letters of the [[Federal Farmer]] defended the proposed unitary executive, arguing that "a single man seems to be peculiarly well circumstanced to superintend the execution of laws with discernment and decision, with promptitude and uniformity."<ref>{{cite book |last=Ellis |first=Richard |url=https://books.google.com/books?id=ybmeEcpEvlsC&q=%22superintend+the+execution+of+laws+with+discernment+and+decision%22&pg=PA39 |title=Founding the American Presidency |publisher=[[Rowman & Littlefield]] |year=1999 |isbn=9780847694990 |location=Lanham, Maryland |page=39}}</ref> In [[Federalist No. 77]], [[Alexander Hamilton]] wrote with regard to the [[United States Senate|Senate]] and presidential appointments that "The consent of that body would be necessary to displace as well as to appoint". Hamilton's usage of "displace" has traditionally been thought to mean "removal", and thus a limit on presidential power. Other legal scholars have interpreted "displace" to mean replacement of an appointee with another, not removal itself.<ref>{{Cite web |last=Millhiser |first=Ian |date=2020-02-14 |title=How Justice Scalia paved the way for Trump's assault on the rule of law |url=https://www.vox.com/2020/2/14/21135083/justice-scalia-bill-barr-trump-unitary-executive-no-rule-of-law-morrison-olson |access-date=2024-07-20 |website=[[Vox.com]] |language=en-US}}</ref><ref>{{cite journal |last1= Tillman |first1= Seth |date= January 1, 2010 |title= The puzzle of Hamilton's Federalist No. 77.|url= https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2010/01/tillman.pdf |journal= 	Harvard Journal of Law & Public Policy}}</ref><ref>{{Cite web |first=Josh |last=Blackman |access-date=24 October 2024 |date=July 1, 2020 |title=Justice Kagan on Hamilton in Federalist No. 77 |url=https://reason.com/volokh/2020/07/01/justice-kagan-on-hamilton-in-federalist-no-77/ |website=[[Reason (magazine)|Reason]] |language=en-US}}</ref> Historically, as part of the campaign to support ratification, [[Alexander Hamilton]] contrasted the powers of the presidency and those of the [[Monarchy of the United Kingdom|King of Great Britain]]. Namely, the King exercised powers in military affairs that would be delegated to Congress.<ref name=":6" />

Chabot argues that the idea of a unitary executive was absent in the founding era. She points to 71 sets of statutory provisions from the [[1st United States Congress|1st Congress]] that are inconsistent with strong unitary executive theory.<ref>{{Cite journal |last=Chabot |first=Christine |date=2022-11-01 |title=Interring the Unitary Executive |url=https://scholarship.law.nd.edu/ndlr/vol98/iss1/3/ |journal=Notre Dame Law Review |volume=98 |issue=1 |pages=129–130 |issn=0745-3515 |quote=nonunitary, independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington...he First Congress repeatedly delegated control over executive officers, as well as significant executive discretion, to independent judges and lay persons whom the President could not remove or replace. This body also chose a nonunitary framework when it dispersed executive decisions amongst multiple officers and required these officers to check actions taken by the President and each other...Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.}}</ref>

=== Judicial decisions ===
{{See also|Marbury v. Madison}}
In the 1926 case of ''[[Myers v. United States]]'', the United States Supreme Court ruled that the president has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body.<ref>{{Cite web|url=https://www.oyez.org/cases/1900-1940/272us52|title=Myers ''v.'' United States |website=[[Oyez Project|Oyez]] |publisher=[[Chicago-Kent College of Law]]}}</ref> The court also wrote:

<blockquote>The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which article 2 of the Constitution evidently contemplated in vesting general executive power in the President alone.<ref>{{cite court|litigants=Myers v. United States|vol=272|reporter=U.S.|opinion=52|pinpoint=|court=|year=1926|url=http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=272&page=52}}</ref></blockquote>

Subsequent cases such as ''Humphrey's Executor v. United States'' (presidential removal of certain kinds of officers), and ''[[Bowsher v. Synar]]'' (control of executive functions) have flexed the doctrine's reach back and forth. [[Antonin Scalia|Justice Scalia]] in his solitary dissent in ''[[Morrison v. Olson]]'' argued for an unlimited presidential removal power of all persons exercising executive branch powers, which he argued included the [[independent counsel]]; the court disagreed, but later moved closer to Scalia's position in ''[[Edmond v. United States]]''.<ref>{{cite journal |last1=Calabresi |first1=Steven |last2=Lawson |first2=Gary |name-list-style=amp |year=2007 |title=The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia |url=http://www.columbialawreview.org/assets/pdfs/107/4/Calabresi-Lawson.pdf |url-status=dead |journal=[[Columbia Law Review]] |volume=107 |pages=1002–1047 |archive-url=https://web.archive.org/web/20090306120412/http://www.columbialawreview.org/assets/pdfs/107/4/Calabresi-Lawson.pdf |archive-date=6 March 2009}}</ref> Many of the proponents clerked for Justice Scalia.<ref name=":13" />

In recent years, the Supreme Court has expressed more support for the theory.<ref>{{Cite web |last= |first= |date= |title=List of court cases relevant to executive appointment and removal power |url=https://ballotpedia.org/List_of_court_cases_relevant_to_executive_appointment_and_removal_power|access-date=2024-08-05 |website=Ballotpedia |language=en-US}}</ref><ref name="auto"/> In ''[[Seila Law LLC v. Consumer Financial Protection Bureau]]'' and ''[[Collins v. Yellen]]'', the Court held that some attempts to curtail presidential removal power of agencies with a single director violate the [[Separation of powers under the United States Constitution|separation of powers]]. Justice Samuel Alito went so far as to write, "The Constitution prohibits even 'modest restrictions' on the President's power to remove the head of an agency with a single top officer." The Court reiterated that the only exceptions to the president's removal power were those precedents found in ''Humphrey's Executor'' and ''Morrison''.<ref name="reason decision">{{cite web | url = https://reason.com/2020/06/29/with-chief-in-charge-scotus-strikes-down-louisiana-abortion-law-and-eliminates-cfpb-independence/ | title = With Chief in Charge, SCOTUS Strikes Down Louisiana Abortion Law and Eliminates CFPB Independence | first = Jonathan | last = Adler | date = June 29, 2020 | access-date = August 5, 2024 | work = [[Reason (magazine)|Reason]] | archive-date = June 29, 2020 | archive-url = https://web.archive.org/web/20200629232919/https://reason.com/2020/06/29/with-chief-in-charge-scotus-strikes-down-louisiana-abortion-law-and-eliminates-cfpb-independence/ | url-status = live }}</ref> The four justices appointed by a Democratic president dissented in ''Seila'', arguing that the constitution makes no such claims.<ref name=":252">{{Cite journal |last=Sitaraman |first=Ganesh |author-link=Ganesh Sitaraman |date=2020 |title=The Political Economy of the Removal Power |url=https://harvardlawreview.org/wp-content/uploads/2020/11/134-Harv.-L.-Rev.-352.pdf |journal=Harvard Law Review |volume=134 |pages=380 |quote=Justice Kagan dissented from the constitutional analysis, along with the three other liberal Justices. In an opinion filled with sharp, cutting language, Justice Kagan protested that there was nothing neutral about the majority’s reasoning or its unitary executive theory of the separation of powers. She systematically argued that 'constitutional text, history, and precedent invalidate the majority’s thesis.' Justice Kagan even accused the majority of 'gerrymander[ing]' their 'made up' rule to strike down the CFPB’s independent structure. For a separation of powers case, this was about as bloody a fight as it gets.}}</ref><ref>{{Cite web |last=Millhiser |first=Ian |date=2020-06-29 |title=The Supreme Court's big decision on the CFPB and the "unitary executive," explained |url=https://www.vox.com/2020/6/29/21307083/supreme-court-cfpb-seila-law-chief-justice-john-roberts-unitary-executive |access-date=2024-08-05 |website=Vox |language=en-US}}</ref> ''Collins'' was a very similar case taken up the next year, and the precedent of ''Seila'' was applied to ''Collins'' in a 7−2 ruling.<ref>{{cite web |date=June 23, 2021 |title=U.S. Supreme Court bolsters presidential power over housing finance agency |url=https://www.cnbc.com/2021/06/23/us-supreme-court-bolsters-presidential-power-over-housing-finance-agency.html |agency=[[Reuters]] |accessdate=June 23, 2021 |work=[[CNBC]]}}</ref><ref>{{cite court|litigants=Collins v. Yellen |vol=594|reporter=U.S.|opinion=220|pinpoint=|court=|year=2021|url=https://www.oyez.org/cases/2020/19-422}}</ref><ref>{{Cite web |last=Millhiser |first=Ian |date=2020-06-29 |title=The Supreme Court's big decision on the CFPB and the "unitary executive," explained |url=https://www.vox.com/2020/6/29/21307083/supreme-court-cfpb-seila-law-chief-justice-john-roberts-unitary-executive |access-date=2024-08-06 |website=Vox |language=en-US}}</ref> Five of the nine justices on the Supreme Court, as of early 2025, were executive branch lawyers in the Reagan and George W. Bush administrations, whose legal teams focused on ways to expand presidential power.<ref>{{Cite news |last=Savage |first=Charlie |date=2025-01-29 |title=Defying Legal Limits, Trump Firings Set Up Tests That Could Expand His Power |url=https://www.nytimes.com/2025/01/29/us/politics/trump-firings-officials-legal-test.html |access-date=2025-02-24 |work=The New York Times |language=en-US |issn=0362-4331}}</ref> These two rulings lend support to Trump's firing of [[Hampton Dellinger]] as head of the [[United States Office of Special Counsel|U.S. Office of Special Counsel]] in 2025.<ref>{{Cite news |last=Hawkins |first=Derek |date=March 6, 2025 |title=Appeals court allows Trump to remove watchdog Hampton Dellinger for now |url=https://www.washingtonpost.com/national-security/2025/03/05/court-decision-trump-administration-hampton-dellinger/ |access-date=March 6, 2025 |newspaper=[[Washington Post]]}}</ref>

In March 2025, the D.C. Circuit Court of Appeals ruled that the president could legally remove members of the [[National Labor Relations Board]] as well as the [[United States Merit Systems Protection Board|Merit Systems Protection Board]] because both wield executive power. The court found that restrictions on the president's power to remove officers of the executive branch are unconstitutional. The ruling was seen as a likely precursor to the Supreme Court reviewing its ''Humphrey's Executor'' precedent.<ref>{{Cite news |last=Hsu |first=Andrea |date=March 28, 2025 |title=Appeals court rules Trump can fire board members of independent agencies |url=https://www.npr.org/2025/03/28/nx-s1-5343963/trump-firings-board-members-appeals-court |access-date=April 1, 2025 |newspaper=[[NPR]]}}</ref>

=== Growth of presidential powers ===
The power of the presidency has grown since the 1970s due to key events and to Congress or the Courts not being willing or able to rein in presidential power.<ref>{{Cite book |last1=Skowronek |first1=Stephen |url=https://www.worldcat.org/title/on1163936736 |title=Phantoms of a beleaguered republic: the deep state and the unitary executive |last2=Dearborn |first2=John A. |last3=King |first3=Desmond S. |date=2021 |publisher=Oxford University Press |isbn=978-0-19-754308-5 |edition=New |location=New York, NY |pages=200 |oclc=on1163936736}}</ref> With strong incentives to grow their own power, presidents of both parties became natural advocates for the theory<ref name=":22">{{Cite book |last1=Skowronek |first1=Stephen |url=https://www.worldcat.org/title/on1163936736 |title=Phantoms of a beleaguered republic: the deep state and the unitary executive |last2=Dearborn |first2=John A. |last3=King |first3=Desmond S. |date=2021 |publisher=Oxford University Press |isbn=978-0-19-754308-5 |edition=New |location=New York, NY |pages=34 |oclc=on1163936736}}</ref> and rarely gave up powers exercised by their predecessors.<ref name=":7">{{Cite journal |last=Thunberg |first=Michael E. |date=2021-12-01 |title=The Unitary Executive Theory: A Danger to Constitutional Government |url=https://academic.oup.com/psq/article/136/4/770/6835193 |journal=Political Science Quarterly |language=en |volume=136 |issue=4 |pages=770–771 |doi=10.1002/polq.13274 |issn=0032-3195|url-access=subscription }}</ref> Republican presidents, including Trump, did not follow through on promises to use unitary executive power to shrink government, instead opting to use the administration to advance their policies.<ref name=":22" /> 

The theory originated in conservative legal circles, most notably in the Federalist Society.<ref name=":22" /> The Reagan administration took the advice in the ''[[Mandate for Leadership]]'' published by the Heritage Foundation to hire 5000 enthusiastic supporters of the Reagan-Bush campaign to fill the 5000 new political appointee positions created by the [[Civil Service Reform Act of 1978|1978 Civil Service Reform Act]].<ref name=":4">{{cite book |last1=Dodds |first1=Graham G. |chapter=Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles |date=2024 |title=Leadership and Politics |pages=542 |editor-last=Akande |editor-first=Adebowale |url=https://link.springer.com/10.1007/978-3-031-56415-4_22 |access-date=July 18, 2024 |place=Cham |publisher=[[Springer Nature Switzerland]] |language=en |doi=10.1007/978-3-031-56415-4_22 |isbn=978-3-031-56414-7 |last2=Kelley |first2=Christopher S.}}</ref> The administration also made use the [[Office of Information and Regulatory Affairs]], signed into law by [[Jimmy Carter]] in 1980, to short-circuit any regulations the administration did not agree with.<ref name=":4" /> The Reagan era is cited as a major catalyst in growing presidential power,<ref name=":7" /><ref name=":12">{{Cite news |last=Mosley |first=Tonya |date=December 14, 2023 |title=Why a second Trump administration may be more radical than the first |url=https://www.npr.org/2023/12/14/1219313919/why-a-second-trump-administration-may-be-more-radical-than-the-first |work=Fresh Air on NPR}}</ref> with significant growth post-9/11 as conservatives have most readily embraced the idea of a unitary executive.<ref name=":11">{{Cite news |last=Rosen |first=Jeffrey |date=July 2, 2024 |title=Immunity ruling continues a trend of expanding presidential power, scholar says |url=https://www.npr.org/2024/07/02/nx-s1-5026545/new-presidential-immunity-ruling-supreme-court-constitutional-scholar |work=[[All Things Considered]] |publisher=NPR |access-date=24 October 2024 }}</ref><ref>{{Cite news |last=Krotoszynski |first=Ronald |date=December 10, 2020 |title=The Conservative Idea That Would Let Biden Seize Control of Washington |url=https://www.politico.com/news/magazine/2020/12/10/nathan-simington-christopher-waller-fcc-federal-reserve-appointments-unitary-executive-authority-444136 |work=Politico}}</ref>

[[Dick Cheney]] and the George W. Bush administration supported the theory.<ref name="Johnsen">{{cite journal |last=Johnsen |first=Dawn |author-link=Dawn Johnsen |date=April 2008 |title=What's a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses |url=http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/JOHNSEN.pdf |journal=[[Boston University Law Review]] |volume=88 |page=395 |quote=On 363 occasions, President Bush objected to provisions that he found might conflict with the president's constitutional authority 'to supervise the unitary executive branch.'}}</ref> For example, Bush wrote in a statement while signing the [[Detainee Treatment Act]] that he would "construe Title X in Division A of the Act in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."<ref>{{cite news |last=Lazarus |first=Edward |date=January 5, 2006 |title=How Much Authority Does the President Possess When He Is Acting as 'Commander in Chief'? Evaluating President Bush's Claims Against a Key Supreme Court Executive Power Precedent |url=http://writ.news.findlaw.com/lazarus/20060105.html |archive-url=https://archive.today/20120728174333/http://writ.news.findlaw.com/lazarus/20060105.html |url-status=dead |archive-date=July 28, 2012 |work=FindLaw |quote=That signed statement shows, in microcosm, how the President sees the separation of powers: The President, in his view of the world, can interpret away constraints on his power, such as those in the McCain Amendment, or FISA before it. And the courts can hardly question his dubious 'interpretations' even if they gut the very statutes they construe: After all, there are 'constitutional limitations on the judicial power'—though not, apparently, on the power of the executive.}}</ref> Critics acknowledge that part of the president's duty is to "interpret what is, and is not constitutional, at least when overseeing the actions of executive agencies"; at the same time, they accused Bush of overstepping that duty by his perceived willingness to overrule U.S. courts.<ref>{{cite news |last=Van Bergen |first=Jennifer |date=January 9, 2006 |title=The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? |url=http://writ.news.findlaw.com/commentary/20060109_bergen.html |work=[[Findlaw]] |quote=In his view, and the view of his Administration, that doctrine gives him license to overrule and bypass Congress or the courts, based on his own interpretations of the Constitution. ...}}</ref> During his confirmation hearing to become an associate justice on the [[United States Supreme Court]], [[Samuel Alito]] seemed to endorse a weaker version of the unitary executive theory.<ref>{{cite news |last1=Liptak |first1=Adam |date=2006 |title=Few Glimmers of How Conservative Judge Alito Is |url=https://www.nytimes.com/2006/01/13/politics/politicsspecial1/few-glimmers-of-how-conservative-judge-alito-is.html |access-date=2 November 2017 |work=[[The New York Times]] |page=A1 |authorlink=Adam Liptak}}</ref> [[Barack Obama]] campaigned against the theory but embraced some aspects of it after the [[2010 midterm elections]].<ref>{{Citation |last1=Dodds |first1=Graham G. |title=Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles |date=2024 |work=Leadership and Politics |pages=545 |editor-last=Akande |editor-first=Adebowale |url=https://link.springer.com/10.1007/978-3-031-56415-4_22 |access-date=2024-07-18 |place=Cham |publisher=Springer Nature Switzerland |language=en |doi=10.1007/978-3-031-56415-4_22 |isbn=978-3-031-56414-7 |last2=Kelley |first2=Christopher S.|url-access=subscription }}</ref>

Donald Trump exerted the greatest control over the executive during [[First presidency of Donald Trump|his presidency]] than any other modern president, often citing Article II of the Constitution. In 2019, he said, "I have an Article II, where I have the right to do whatever I want as president."<ref name="NYT Presidential Power">{{cite news |last1=Swan |first1=Jonathan |last2=Savage |first2=Charlie |last3=Maggie |first3=Haberman |date=July 17, 2023 |title=Trump and Allies Forge Plans to Increase Presidential Power in 2025 |url=https://www.nytimes.com/2023/07/17/us/politics/trump-plans-2025.html |access-date=December 6, 2023 |work=[[The New York Times]]}}</ref><ref name=":7" /><ref name="Dodds 2023 487–517" /><ref name=":1">{{Cite book |last1=Crouch |first1=Jeffrey |url=https://www.jstor.org/stable/j.ctv1ft83xf |title=The Unitary Executive Theory: A Danger to Constitutional Government |last2=Rozell |first2=Mark J. |last3=Sollenberger |first3=Mitchel A. |date=2020 |publisher=University Press of Kansas |isbn=978-0-7006-3004-2 |pages=19, 23 |doi=10.2307/j.ctv1ft83xf |jstor=j.ctv1ft83xf |quote=We believe that this theory is based on a flawed understanding of the nation's governing structure and does not conform to the text of the constitution, the founders' intent, or much historical practice.}}</ref> [[William Barr|Bill Barr]] notably supported unitary executive theory before his confirmation as attorney general in a 2018 memo criticizing the [[Mueller special counsel investigation|Russia probe]].<ref>{{Cite news |last=McCarthy |first=Tom |date=January 13, 2019 |title=Trump's attorney general pick raises fears of a president above the law |url=https://www.theguardian.com/us-news/2019/jan/13/donald-trump-william-barr-attorney-general-senate-confirmation-robert-mueller |access-date=July 11, 2024 |work=[[The Guardian]] |language=en-GB |issn=0261-3077}}</ref><ref>{{Cite web |date=May 21, 2020 |title=Deconstructed Podcast: Is Bill Barr the Most Dangerous Trump Official? |url=https://theintercept.com/2020/05/21/is-bill-barr-the-most-dangerous-member-of-the-trump-administration/ |access-date=July 11, 2024 |website=[[The Intercept]] |language=en-US}}</ref> [[Project 2025#Expansion of presidential powers|Project 2025 proposes]] using the theory to justify giving Trump or another president maximum control over the executive branch.<ref>{{Cite web |last1=Wrona |first1=Aleksandra |last2=Nur |first2=Ibrahim |date=July 11, 2024 |title=The Facts About Project 2025: The Pro-Trump Proposal To 'Reshape America' |url=https://www.snopes.com//news/2024/07/11/project-2025-explained/ |access-date=July 19, 2024 |website=[[Snopes]] |language=en |quote=Project 2025 authors built their proposals on an idea popular during former President Ronald Reagan's time: the 'unitary executive theory.'...Overall, critics including legal experts and former government employees have zeroed in on Project 2025's goal to give the executive branch more power, describing it as a precursor to authoritarianism.}}</ref> The [[Donald Trump 2024 presidential campaign#Expansion of executive and presidential power|Trump 2024 campaign platform includes an expansion of executive power]] grounded in this theory.<ref name="NYT Presidential Power"/> The 2024 Supreme Court ruling in [[Trump v. United States (2024)|''Trump v. United States'']] could make the president even more powerful, with some interpreting it as an endorsement of unitary executive theory.<ref>{{Cite AV media |url=https://www.pbs.org/video/trump-agenda-1720559568/ |title=The Project 2025 plan and Trump's links to its authors |date=July 9, 2024 |language=en |website=[[PBS News Hour]] |access-date=July 11, 2024 |via=}}</ref><ref>{{Cite news |last=Tucker |first=Eric |date=July 2, 2024 |title=Supreme Court opinion conferring broad immunity could embolden Trump as he seeks to return to power |url=https://abcnews.go.com/US/wireStory/supreme-court-opinion-conferring-broad-immunity-embolden-trump-111632671 |agency=[[Associated Press]] |quote='This is a full-throated endorsement of the unitary executive theory' in a dramatic way, said Cornell University law professor Michael Dorf, referring to the theory that the U.S. Constitution gives the president expansive control over the government’s executive branch.}}</ref> Trump and his subordinates have embraced (or gone beyond) some of the theory's most extreme or fringe versions.<ref>{{Cite news |last=Kruzel |first=John |date=February 14, 2025 |title='Unitary executive' theory may reach Supreme Court as Trump wields sweeping power |url=https://www.reuters.com/legal/unitary-executive-theory-may-reach-supreme-court-trump-wields-sweeping-power-2025-02-14/ |agency=[[Reuters]]}}</ref><ref>{{Cite web |last=Glenza |first=Jessica |date=February 19, 2025 |title=Trump signs order making independent regulators answerable to White House |url=https://www.theguardian.com/us-news/2025/feb/19/trump-independent-regulators-sec-ftc |access-date=February 23, 2025 |website=[[The Guardian]] |language=en}}</ref>

==Criticism==
{{See also|Schedule F appointment#Response|Project 2025#Reactions and responses}}Some critics, such as Yale Law Professor Christina Rodríguez,<ref>{{Cite web |date=2025-04-16 |title=OIRA: The tiny office that's about to remake the federal government : Planet Money |url=https://www.npr.org/transcripts/1245044458 |access-date=2025-04-17 |website=NPR |language=en |quote=Both the history and the theory on which the unitary executive theory are based are unconvincing...If you have a system where, from top to bottom, from the officers of the United States to the independent commissioners who are independent no more to the civil servants made up of people who are hired because of their loyalty to the president, you have a corrupt and malfunctioning government...I do think that we are approaching autocracy. We are approaching a world in which the government, especially the executive branch and the president, are unaccountable either to the people or to the law.}}</ref> [[Ian Millhiser]],<ref name=":21">{{Cite web |last=Millhiser |first=Ian |date=2023-11-21 |title=A Supreme Court case about stocks could help make Trump's authoritarian dreams reality |url=https://www.vox.com/scotus/2023/11/21/23964561/supreme-court-sec-jarkesy-donald-trump-authoritarian-unitary-executive |access-date=2024-07-20 |website=Vox |language=en-US |quote=There are weaker versions of the unitary executive theory that wouldn’t allow the president to fire every FBI agent who refuses to swear personal fealty. But even these weaker versions could potentially give presidents power to manipulate elections, and to interfere with technocratic aspects of government that historically have been removed from partisan politics, such as the Federal Reserve...And, of course, looming over all of this is Trump, with his plan to replace much of the civil service with people personally loyal to him. In the worst-case scenario for liberal democracy, the Supreme Court could use the Jarkesy case to greenlight many of Trump’s most authoritarian aspirations.}}</ref><ref>{{Cite web |last=Millhiser |first=Ian |date=2025-04-15 |title=A major Trump power grab just reached the Supreme Court |url=https://www.vox.com/scotus/408848/supreme-court-donald-trump-unitary-executive-wilcox |access-date=2025-04-17 |website=Vox |language=en-US |quote=Relying on this authority, Congress has created multiple similar agencies — the most important of which is the Federal Reserve, which, like the central banks in other successful nations, is supposed to set interest rates based on expert economic judgment and not based on what will benefit the sitting president. The consequences of stripping the Fed of this independence would be severe.}}</ref> and [[Jan-Werner Müller]],<ref>{{Cite news |last=Müller |first=Jan-Werner |date=2025-03-07 |title=Trump is concentrating power. A key faction of judges supports the idea |url=https://www.theguardian.com/commentisfree/2025/mar/07/trump-power-judges-democracy |access-date=2025-04-17 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref> disagree with the Unitary Executive Theory on constitutional grounds, democratic theory and practical grounds. Others focus their critiques more narrowly on one or two of these objections. Crouch et al. (2020) find the theory does not fit with the constitution or historical practice and is not one of the most commonly recognized models of presidential power.<ref name=":1" /> They also criticize proponents of the weaker versions for providing the framework for an aggressive consolidation of executive power.<ref>{{Cite book |last=Crouch |first=Jeffrey |title=The unitary executive theory: a danger to constitutional government |last2=Rozell |first2=Mark J. |last3=Sollenberger |first3=Mitchel A. |date=2020 |publisher=University Press of Kansas |isbn=978-0-7006-3003-5 |location=Lawrence, Kansas |pages=10}}</ref> 

=== Constitutional ===
[[Stephen Skowronek]], John A. Dearborn, and [[Desmond King (professor)|Desmond King]] argue that the unitary executive theory would cause disruption, creating a "constitutional nightmare" by concentrating executive power in a way the founders hoped to avoid.<ref>{{Cite book |last1=Skowronek |first1=Stephen |url=https://www.worldcat.org/title/on1163936736 |title=Phantoms of a beleaguered republic: the deep state and the unitary executive |last2=Dearborn |first2=John A. |last3=King |first3=Desmond S. |date=2021 |publisher=[[Oxford University Press]] |isbn=978-0-19-754308-5 |edition=New |location=New York City |pages=38 |oclc=on1163936736 |quote=...the unitary executive becomes exactly what the founders most feared, a formula for maximum disruption. It is prone to imposing decisions at will, marginalizing dissent, and to radicalizing opposition...Power hierarchically controlled, thoroughly politicized and concentrated in the executive, is a constitutional nightmare, and a bitter denouement for a beleaguered republic.}}</ref><ref>{{Cite web |date=2025-02-25 |title=Are we headed for a constitutional crisis? Kennedy School scholars on the Trump administration and the rule of law |url=https://www.hks.harvard.edu/faculty-research/policy-topics/democracy-governance/are-we-headed-constitutional-crisis-kennedy |access-date=2025-04-17 |website=www.hks.harvard.edu |language=en |quote=The Trump administration’s first month included a slew of actions and statements that have postulated new legal theories and challenged existing norms. Through a flurry of executive orders, the White House seems to be assuming powers that have historically been vested in Congress, including around spending and the control of federal agencies...The administration appears to be guided by a legal doctrine, known as unitary executive theory, that contends the president’s authority has few legal limits...Below, several faculty members at Harvard Kennedy School analyze the administration’s actions, the role of courts and Congress, and whether we are approaching a constitutional crisis.}}</ref> [[Loyola Law School]] professors Karl Manheim and [[Allan Ides]] write, "the separation among the branches is not and never was intended to be airtight" and point to the president's [[veto power]] as an example of the executive exercising legislative power. They also cite other examples of quasi-legislative and quasi-judicial power exercised by the executive branch as necessary elements of the administrative state, but contend that ultimately all administrative power belongs to Congress, not the President, and the only true "executive" powers are those explicitly described in the Constitution.<ref name="Manheim Ides">{{cite journal |last1=Manheim |first1=Karl |last2=Ides |first2=Allan |date=September 2006 |title=The Unitary Executive |journal=[[Los Angeles Lawyer]] |ssrn=943046 |id=Loyola-LA Legal Studies Paper No. 2006-39}}</ref> Lessig and Sunstein agree that Congress was given discretion to structure the government as it saw fit,<ref>{{Cite journal |last1=Lessig |first1=Lawrence |last2=Sunstein |first2=Cass R. |date=1994 |title=The President and the Administration |url=https://www.jstor.org/stable/1123119 |journal=Columbia Law Review |volume=94 |issue=1 |page=118 |doi=10.2307/1123119 |jstor=1123119 |issn=0010-1958|url-access=subscription }}</ref> calling the idea that the framers wanted a completely strong unitary executive "just plain myth".<ref name="Lessig"/><ref>{{Cite news |last=Sunstein |first=Cass R. |date=2025-02-26 |title=Opinion {{!}} This Theory Is Behind Trump's Power Grab |url=https://www.nytimes.com/2025/02/26/opinion/trump-roberts-unitary-executive-theory.html |access-date=2025-03-04 |work=The New York Times |language=en-US |issn=0362-4331 |quote=...the broadest current claims about executive authority are a creation of the 21st century, not the 18th.}}</ref>

[[David J. Barron]] (now a federal judge) and [[Marty Lederman]] have criticized the unitary executive theory. They acknowledge that there is a compelling case for some form of a unitary executive within the armed forces,<ref name="Barron-Lederman">{{cite journal |last1=Barron |first1=David |last2=Lederman |first2=Martin |url=http://www.harvardlawreview.org/issues/121/jan08/barron_lederman.shtml |title=The Commander in Chief at the Lowest Ebb: Framing The Problem, Doctrine, And Original Understanding |journal=[[Harvard Law Review]] |publisher=[[Harvard University]]|location=Cambridge, Massachusetts|volume=121 |page=689 |year=2008 |quote=we think the text, as reinforced by historical practice, makes a strong case for at least some form of a 'unitary executive' within the armed forces, particularly as to traditional functions during armed conflicts. |url-status=dead |archive-url=https://web.archive.org/web/20090125114946/http://harvardlawreview.org/issues/121/jan08/barron_lederman.shtml |archive-date=January 25, 2009  }}</ref> but argue that the Constitution does not provide for an equally strong unitary executive outside the military context, and that the [[Article Two of the United States Constitution#Clause 1: Command of military; Opinions of cabinet secretaries; Pardons|Commander in Chief Clause]] would be superfluous if the same kind of unitary presidential authority resulted from the general constitutional provision vesting executive power in the president.<ref name=":15">{{cite journal |last1=Barron |first1=David |last2=Lederman |first2=Martin|url=http://www.harvardlawreview.org/issues/121/feb08/barron_lederman2.shtml |title=The Commander in Chief at the Lowest Ebb: A Constitutional History |journal=[[Harvard Law Review]] |publisher=[[Harvard University]]|location=Cambridge, Massachusetts|volume=121 |page=941 |year=2008 |quote=there are those who would argue that the 'unitary executive' must have effective control over all Article II functions, in which case the superintendence guaranteed by the Commander in Chief Clause would not appear to do any additional work with respect to superintendence. |url-status=dead |archive-url=https://web.archive.org/web/20090124223310/http://harvardlawreview.org/issues/121/feb08/barron_lederman2.shtml |archive-date=January 24, 2009  }}</ref> Crouch et al. argue that most scholars think the Declare War Clause makes clear that presidents do not have the power to declare war, in contrast to what some unitarians believe.<ref>{{Cite book |last=Crouch |first=Jeffrey |title=The unitary executive theory: a danger to constitutional government |last2=Rozell |first2=Mark J. |last3=Sollenberger |first3=Mitchel A. |date=2020 |publisher=University Press of Kansas |isbn=978-0-7006-3003-5 |location=Lawrence, Kansas |pages=139-142 |chapter=}}</ref> The [[BBC]] has called unitary executive theory "controversial",<ref name=":2">{{cite news |last1=Wendling |first1=Mike |date=July 7, 2024 |title=Project 2025: A wish list for a Trump presidency, explained |url=https://www.bbc.com/news/articles/c977njnvq2do |publisher=BBC |quote=...a controversial idea known as 'unitary executive theory'}}</ref> and ''[[The Guardian]]'' called it "contested"<ref name=":3">{{Cite news |last=Pengelly |first=Martin |date=2023-09-15 |title=US hard-right policy group condemned for 'dehumanising' anti-LGBTQ+ rhetoric |url=https://www.theguardian.com/world/2023/sep/15/project-2025-policy-manifesto-lgbtq-rights |access-date=2024-07-11 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref> and a "quasi legal doctrine".<ref name=":42">{{Cite news |last=Pilkington |first=Ed |date=2024-06-07 |title=Trump plots capture of DoJ in renewed assault on US justice system |url=https://www.theguardian.com/us-news/article/2024/jun/07/trump-justice-department |access-date=2024-07-11 |work=The Guardian |language=en-GB |issn=0261-3077}}</ref> In 2007, [[Norman Ornstein]] wrote in ''[[The Economist]]'' that an overwhelming majority of constitutional scholars and historians find unitary executive theory "laughable".<ref name=":14">{{Cite news |last=Ornstein |first=Norman |date=June 26, 2007 |title=Blog: Cheney's chutzpah |url=https://www.economist.com/democracy-in-america/2007/06/25/cheneys-chutzpah |access-date=2024-07-11 |newspaper=The Economist |issn=0013-0613}}</ref> Law Professor [[Jeffrey Rosen (legal academic)|Jeffrey Rosen]] called the version Trump embraces "radical" because it would require reversing the Supreme Court's understanding of the relationship between Congress and the president.<ref>{{Cite news |date=November 2, 2024 |title=The election offers Americans 2 different ideas of presidential powers |url=https://www.npr.org/2024/11/01/nx-s1-5168903/the-election-offers-americans-2-different-ideas-of-presidential-powers |access-date=2025-02-25 |work=NPR |language=en}}</ref> Law professor [[Julian E. Zelizer]] cites conservative thinker [[James Burnham]], who argued that Congress was clearly intended to have primacy over the president in the Constitution.<ref name=":18">{{Cite web |last=Zelizer |first=Julian E. |date=2025-02-27 |title=Why Republicans Love Strong Presidents |url=https://foreignpolicy.com/2025/02/24/us-republicans-presidential-power-trump/ |access-date=2025-02-25 |website=Foreign Policy |language=en-US}}</ref> Deborah Pearlstein described the theory as always having had a weak constitutional basis.<ref>{{Cite web |date=2025-02-17 |title=Deborah Pearlstein: I'm a constitutional law expert. Here's what concerns me most about Trump's EOs. |url=https://www.msnbc.com/top-stories/latest/constitutional-law-trump-executive-orders-rcna192227 |access-date=2025-02-25 |website=MSNBC.com |language=en}}</ref>

=== Democracy ===
{{See also|Democratic backsliding in the United States#Unitary executive theory}}

Graham Dodds and Christopher Kelley worry about the constitutional implications of relegating the legislative branch to secondary status as well as the implications of the theory for democracy, especially under a Trump presidency.<ref name=":17" /> Steven Greenhut argues the theory is a prescription for abuse and authoritarianism.<ref name=":16" /> David Driesen argues that unitary control over the executive is a defining characteristic of autocracy<ref name=":13" /> and that the courts should, through their rulings, show as much concern about avoiding autocracy as the Founders.<ref>{{Cite news |last=Driesen |first=David |date=2021 |title=The Specter of Dictatorship |url=https://www.sup.org/books/law/specter-dictatorship/excerpt/table-contents |work=Stanford University Press |quote=This chapter establishes that the Founders of this nation shared a goal of avoiding a future drive to autocracy and suggests that this intention should guide the Supreme Court's treatment of presidential power. It explains the controversy over whether the Founders embraced the unitary executive theory and shows that they did not expressly grant emergency powers to the President in the Constitution.}}</ref> ''[[The Economist]]'' wrote that "the vain and tyrannical whims of an emperor-president would emerge from the rubble."<ref name=":20" /> [[Martin Redish]] believes unitary executive theory's strongest versions lead to tyranny.<ref>{{Cite journal |last=Redish |first=Martin H. |date=2024 |title=The Unitary Executive in the Age of American Authoritarianism |url=https://www.wakeforestlawreview.com/wp-content/uploads/2024/10/w05_Redish.pdf |journal=[[Wake Forest Law Review]] |publisher=[[Wake Forest University School of Law]] |location=Winston-Salem, North Carolina |doi= |issn=}}</ref>

Unlike many other countries' modern constitutions, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution includes no comprehensive separate regime for emergencies. Some legal scholars believe the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined "executive power."<ref name="Atlantic201901&201902">{{cite news |last1=Goitein |first1=Elizabeth |date=January–February 2019 |title=The Alarming Scope of the President's Emergency Powers |url=https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/ |archive-url=https://web.archive.org/web/20200401071344/https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/ |archive-date=April 1, 2020 |access-date=1 April 2020 |work=[[The Atlantic]]}}</ref> Congress has delegated at least 136 distinct statutory emergency powers to the president, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress; the rest are assumed by an executive declaration with no further congressional input.<ref>{{cite web |title=A Guide to Emergency Powers and Their Use |url=https://www.brennancenter.org/analysis/emergency-powers |archive-url=https://web.archive.org/web/20200401070744/https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use |archive-date=April 1, 2020 |access-date=January 7, 2019 |website=Brennan Center for Justice at New York University School of Law |language=en}}</ref> Congressionally authorized emergency presidential powers could be sweeping and dramatic, ranging from seizing control of the internet to declaring martial law.<ref name="Atlantic201901&201902" /> This led Elizabeth Goitein to write in ''[[The Atlantic]]'' that "the misuse of emergency powers is a standard gambit among leaders attempting to consolidate power",<ref name="Atlantic201901&201902" /> because, in the words of Justice [[Robert H. Jackson]]'s dissent in ''[[Korematsu v. United States]]'', the 1944 Supreme Court decision that upheld the [[internment of Japanese-Americans]], each emergency power "lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need."<ref name="Atlantic201901&201902" />

=== Practical ===
Writing in ''[[Reason (magazine)|Reason]]'', [[Ilya Somin]] argued that the executive branch's growth in the modern day through its accumulation of powers runs contrary to the spirit of the founders, who were concerned about concentration of power. Somin wrote that the unitary executive was suitable for the more limited federal government in the founding era, but less practical with the government's expansive modern scope of authority.<ref name=":19" /> Concern about the effects on the Justice Department's investigatorial independence and anti-corruption efforts is a recurring theme in criticism of the unitary executive theory.<ref>{{Cite web |last=Millhiser |first=Ian |author-link=Ian Millhiser |date=2020-02-14 |title=How Justice Scalia paved the way for Trump's assault on the rule of law |url=https://www.vox.com/2020/2/14/21135083/justice-scalia-bill-barr-trump-unitary-executive-no-rule-of-law-morrison-olson |access-date=2024-07-20 |website=Vox |language=en-US |quote=The facts of Morrison also highlight why prosecutorial independence is sometimes desirable. That case involved an investigation into one of the seniormost officials within the Justice Department. A rank-and-file prosecutor would understandably fear the professional consequences of leading such an investigation — for the same reason that I would be reluctant to conduct an investigation into one of Vox Media's top executives.}}</ref><ref>{{Cite web |last=Shugerman |first=Jed Handelsman |date=July 6, 2020 |title=The Imaginary Unitary Executive |url=https://www.lawfaremedia.org/article/imaginary-unitary-executive |access-date=2024-07-18 |website=[[Lawfare]] |language=en}}</ref><ref>{{Cite web |last=Dorf |first=Michael C. |author-link=Michael C. Dorf |date=2023-06-19 |title=Opinion: The Misguided Unitary Executive Theory Gains Ground |url=https://verdict.justia.com/2023/06/19/the-misguided-unitary-executive-theory-gains-ground |access-date=2024-07-18 |website=[[Justia]] |language=en |quote=Not only is the unitary executive theory writ large ahistorical...}}</ref><ref name=":20" />

Another concern revolves around the more practical implications of a brain drain of expertise in the federal government.<ref name=":20" /> Some scholars oppose weaker versions, arguing that power is still too centralized and that a more decentralized executive would be more effective.<ref name="Berry">{{cite journal |last1=Berry |first1=Christopher |last2=Gersen |first2=Jacob |name-list-style=amp |year=2008 |title=The Unbundled Executive |url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?httpsredir=1&article=1349&context=public_law_and_legal_theory |journal=[[University of Chicago Law Review]] |location=Chicago, Illinois |publisher=[[University of Chicago]] |ssrn=1113543 |quote=We certainly do not claim that the most sensible or even any plausible interpretation of the US Constitution establishes a plural unbundled executive; but perhaps it should. And to the extent the current constitutional structure would allow for modest adjustments toward the unbundled executive ideal, our work suggests such reforms would produce a government structure more in keeping with the democratic ideals most commonly said to justify the single unitary executive. |df=mdy-all |page=32}}</ref> They reference the relatively pluralized and specialized ("unbundled") distribution of executive power in most U.S. state governments, where attorneys general and other officials are separately and directly elected, suggesting this may represent a more effective and accountable model.<ref>{{cite journal |last1=Berry |first1=Christopher |last2=Gersen |first2=Jacob |name-list-style=amp |year=2008 |title=The Unbundled Executive |url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?httpsredir=1&article=1349&context=public_law_and_legal_theory |journal=[[University of Chicago Law Review]] |location=Chicago, Illinois |publisher=[[University of Chicago]] |ssrn=1113543 |page=2, 6–7, 10–13}}</ref>

== Executive power in other democracies ==
=== Governors and the states ===
{{anchor|Plural executive}}Unitary executive theory does not exist at the state or local level in the United States. In contrast to a single elected executive officer such as the president, '''plural executives''' exist in virtually all non-national governments, with states where executive officers such as [[Lieutenant governor (United States)|lieutenant governor]], [[State attorney general|attorney general]], [[comptroller#United States|comptroller]], [[Secretary of State (U.S. state government)|secretary of state]], and others, are elected independently of the [[Governor (United States)|state's governor]].<ref name=":9" /><ref name=":8">{{Cite web |last1=Gersen |first1=Jacob |last2=Berry |first2=Christopher R. |date=March 2008 |title=The Unbundled Executive |url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?httpsredir=1&article=1349&context=public_law_and_legal_theory |publisher=University of Chicago |pages=10–11 |type=none |ssrn=1113543 |id=University of Chicago Public Law & Legal Theory Working Paper No. 214 |quote=Indeed, partial unbundling of executive authority is the norm rather than an exception in virtually all levels of non-national government units in the United States, of which there are more than 80,000. Authority that the governor or mayor would otherwise exercise is frequently given to a specific state or local officer. Often these officers are directly elected by the public. Other times they are elected by the legislature; other times still, they are appointed by another state official... The average number of elected executive offices per state was 6.7 in 2002&nbsp;...}}</ref> The executive branches of [[Government of Texas|Texas]] and [[North Carolina]], for example, maintain a plural executive whereby other elected executive officers can curb the chief executive's actions. The group of North Carolina executive officers, the [[North Carolina Council of State]], wields considerable statutory power when approving the state government's monetary and property transactions.<ref>{{Cite web|title=North Carolina State Government - The Executive Branch - Council of State|url=https://www.carolana.com/NC/Executive_Branch/nc_council_of_state.html|access-date=2021-04-30|website=carolana.com}}</ref> The [[Constitution of New York|New York Constitution]] contained Take Care and Vesting Clauses "precisely mirroring the U.S. Constitution's clauses, but did not allow the Governor to either appoint or remove officers, vesting those functions in a council."<ref name=":13" />

=== Outside the United States ===
David Driesen argues that similar reforms led to significant [[democratic backsliding]] in [[Turkey]], [[Poland]], and [[Hungary]].<ref name=":13" /><ref name=":27">{{Cite news |last=Jouvenal |first=Justin |date=February 4, 2025 |title=Why the Supreme Court may be open to Trump's push for expanded power |url=https://www.washingtonpost.com/politics/2025/02/04/supreme-court-donald-trump-test-cases-presidential-authority/ |newspaper=Washington Post}}</ref> Susan Hennessey and [[Benjamin Wittes]] argue that the U.S. is very different from other democracies, which purposely chose not to concentrate as much power in their presidents.<ref name=":183"/>

== In film ==
In the 2018 biographical film [[Vice (2018 film)|''Vice'']], directed by [[Adam McKay]], the unitary executive theory is explored in some detail and dramatized.<ref name=":5" /> Vice President [[Dick Cheney]], the film's subject, his lawyer [[David Addington]], deputy assistant attorney general in the [[Office of Legal Counsel]] [[John Yoo]], and Supreme Court justice [[Antonin Scalia]] figure prominently in the theory's development and promotion.<ref name=":5" /> They brought it to the foreground of modern discussions on the topic of executive power beginning in 2001, continuing throughout the [[Presidency of George W. Bush|Bush administration]] and beyond. The application of this legal doctrine has implications for the prosecution of the [[war on terror|War on Terror]], the subsequent [[Invasion of Iraq|2003 U.S. invasion of Iraq]], the use of [[enhanced interrogation techniques]] at sites such as [[Guantanamo Bay detention camp|Guantanamo Bay]] and [[Abu Ghraib torture and prisoner abuse|Abu Ghraib]], and [[Mass surveillance in the United States|mass surveillance]].<ref name=":5" />

==See also==
* [[Executive aggrandizement]]
* [[Imperial presidency]]
* [[Independent state legislature theory]]
* [[Presidential system#Presidentialism metrics | Presidentialism metrics]]
* [[Schedule F appointment]]
* [[Spoils system]]

== References ==
{{reflist}}

==Further reading==

* {{cite book |editor-last1=Barilleaux |editor-first1=Ryan J. |editor-first2=Christopher S. |editor-last2=Kelley |name-list-style=amp |url=https://books.google.com/books?id=Se-0yISldacC&dq=Barilleaux,+Ryan+J.+%26+Kelley,+Christopher+S.,+eds.+(2010).+The+Unitary+Executive+and+the+Modern+Presidency.+Texas+A%26M+University+Press.+Essays+by+presidential+scholars+on+the+origins,+history,+use,+and+future+of+the+unitary+executive+theory,+with+particular+attention+to+the+presidency+of+George+W.+Bush.&pg=PR7 |title=The Unitary Executive and the Modern Presidency |publisher=Texas A&M University Press |year=2010|isbn=978-1-60344-190-2 }} Essays by presidential scholars on the origins, history, use, and future of the unitary executive theory, with particular attention to the presidency of George W. Bush.
* <!-- {{wikicite|ref={{harvid|Dodds|2020}}|reference= -->Dodds, Graham G. 2020. ''The Unitary Presidency''. Presidential Briefings Series, gen. ed. Robert J. Spitzer. New York and London: Routledge. {{ISBN|978-1-351-05278-8}} (ebk). {{ISBN|978-1-138-48417-7}} (hbk). {{ISBN|978-1-138-48418-4}} (pbk).<!-- }} -->
*{{cite book |author-last1=Ginsburg |author-first1=Tom |author-last2=Huq |author-first2=Aziz |author-link=Tom Ginsburg |author-link2=Aziz Huq |chapter=How We Lost Constitutional Democracy |editor-last=Sunstein |editor-first=Cass |title=Can It Happen Here?: Authoritarianism in America |edition=First |publication-place=New York |publisher=HarperCollins |publication-date=2018 |pages=135–156 |isbn=978-0-06-269619-9}}
*{{cite book |author-last=Healy |author-first=Gene |author-link=Gene Healy |title=The Cult of the Presidency: America's Dangerous Devotion to Executive Power |edition=First |publication-place=Washington D.C. |publisher=Cato Institute |publication-date=2008 |isbn=978-1-933995-15-1}}
* <!-- {{wikicite|ref={{harvid|Kitrosser|2020}}|reference= -->Kitrosser, Heidi. 2015. ''Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution''. Chicago and London: The University of Chicago Press. {{ISBN|978-0-226-19177-5}} (ebk). {{ISBN|978-0-226-19163-8}} (hbk).<!-- }} -->
* <!-- {{wikicite|ref={{harvid|Kovacs|2021}}|reference= -->Kovacs, Kathryn. 2021. [https://harvardlawreview.org/forum/vol-135/from-presidential-administration-to-bureaucratic-dictatorship/ "Response: From Presidential Administration to Bureaucratic Dictatorship"]. ''[[Harvard Law Review|Harvard Law Review Forum]]''. 135(2):104–132.
* <!-- {{wikicite|ref={{harvid|Ku|2010}}|reference= -->Ku, Julian G. 2010. [https://scholarship.law.upenn.edu/jcl/vol12/iss2/14/ "Unitary Executive Theory and Exclusive Presidential Powers"]. [https://scholarship.law.upenn.edu/jcl/vol12/iss2/ (Symposium Report: Presidential Power in Historical Perspective: Reflections on Calabresi and Yoo's ''The Unitary Executive'')]. ''[[University of Pennsylvania Journal of Constitutional Law]]'' 12(2):615–621.
*{{cite book |author-last=Moynihan |author-first=Donald |author-link=Donald Moynihan |chapter=Populism and the Deep State: The Attack on Public Service Under Trump |editor-last1=Bauer |editor-first1=Michael W. |editor-last2=Peters |editor-first2=B. Guy |editor-last3=Pierre |editor-first3=Jon |editor-last4=Yesilkagit |editor-first4=Kutsal |editor-last5=Becker |editor-first5=Stefan |title=Democratic Backsliding and Public Administration: How Populists in Government Transform State Bureaucracies |publication-place=Cambridge |publisher=Cambridge University Press |publication-date=2021 |pages=151–177 |isbn=978-1-316-51938-7 |doi=10.1017/9781009023504.008}}
*{{cite book |author-last=Nelson |author-first=Dana D. |author-link=Dana D. Nelson |title=[[Bad for Democracy: How the Presidency Undermines the Power of the People]] |publication-place=Minneapolis |publisher=University of Minneapolis Press |publication-date=2008 |isbn=978-0-8166-5677-6}}
* {{cite journal |last=Percival |first=Robert V. |title=Presidential Management of the Administrative State: The Not-So-Unitary Executive |journal=Duke Law Journal |year=2001 |volume=51 |issue=3 |pages=963–1013 |url=http://www.law.duke.edu/shell/cite.pl?51+Duke+L.+J.+963 |doi=10.2307/1373182 |jstor=1373182|url-access=subscription }}
*{{cite book |author-last=Savage |author-first=Charlie |author-link=Charlie Savage (journalist) |title=Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy |edition=First |publication-place=New York |publisher=Hachette |publication-date=2007 |isbn=978-0-316-01958-3}}
*{{cite book |author-last=Shane |author-first=Peter M. |author-link=Peter M. Shane |title=Madison's Nightmare: How Executive Power Threatens American Democracy |edition=First |publication-place=Chicago |publisher=The University of Chicago Press |publication-date=2009 |isbn=978-0-226-38070-4}}
* {{cite book |last1=Skowronek |first1=Stephen |author-link=Stephen Skowronek |last2=Dearborn |first2=John A. |last3=King |first3=Desmond |author-link3=Desmond King (professor) |name-list-style=amp |url=https://books.google.com/books?id=068gEAAAQBAJ&q=phantoms+of+a+beleaguered+republic |title=Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive |publisher=Oxford University Press |year=2021 |isbn=978-0-19-754308-5}}
*{{cite book |author-last=Sunstein |author-first=Cass |chapter=Lessons from the American Founding |editor-last=Sunstein |editor-first=Cass |title=Can It Happen Here?: Authoritarianism in America |edition=First |publication-place=New York |publisher=HarperCollins |publication-date=2018 |pages=57–80 |isbn=978-0-06-269619-9}}

== External links ==

* [https://faculti.net/overseer-or-the-decider/ Overseer or "The Decider"? An American President In Administrative Law] by [[Peter L. Strauss]], lecture on the history of the unitary executive theory
{{US Constitution}}

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