THE EXECUTIVE AUTHORITY OF THE PRESIDENT—PART TWO—THE UNITARY EXECUTIVE
INTRODUCTION
The current Democrat chorus of “chaos” and the gnashing of teeth over the Administration’s goal of fiscal responsibility is setting the stage for a historic review of the structure of the Constitution and a restoration of the original constitutional design. In this brief review of the principles that underscore this important moment, I rely on and give attribution to “The Unitary Executive” by Steven Calabresi and Christopher Yoo, a 2008 publication by the Yale University Press, as well as liberal citation of Justice Scalia’s “for the ages” dissent in Morrison v. Olsen. President Trump’s Executive Orders and Proclamations are an attempt to reclaim executive authority that has been rendered, at times, almost vestigial since the Nixon era. Democrat-controlled Congresses in the 1970s passed unchecked, unconstitutional enactments designed to push back on what was seen as Nixon’s overreach. The Impoundment Control Act—now at the center of Trump’s examination and exposure of fraud and waste in Congress’ spending—limited a president’s ability to impound expenditures that result from Congressional self-interest. Nixon simply did not wish to spend funds on social programs that were at odds with his priorities. The Civil Service Act of 1978 purported to create significant due process protections for a federal workforce that now numbers in the millions and expanded by some 140,000 personnel in the Biden era to carry the water for unconstitutional and wasteful climate and DEI initiatives. Trump’s review of these policies and expenditures is consistent with his mandate and what he was voted into office to implement. The roadblocks will end. The expansion of a “Fourth Department” of government in the form of both independent agencies and the quasi-legislative actions taken by other Agencies such as the Environmental Protection Agency, has led to a slow but gradually strengthening march toward a return to proper executive authority. The deletion of Chevron deference from judicial review and the denial of the authority of embedded agency hacks to tie the hands of the judiciary to the vindication of the President’s authority to remove officers in the recent Seila Law decision discussed below means that this is the Court and the Congress that may finally interpret Article II of the Constitution as conferring significant executive control over the executive departments and their discretionary policymaking personnel. George Washington, James Madison, and Alexander Hamilton would be pleased.
THE MARCH TOWARD THE UNITARY EXECUTIVE POWER ENVISIONED AND WIELDED BY PRESIDENTS FROM WASHINGTON TO TRUMP
In Seila Law v. Consumer Financial Protection Bureau 591 U.S. 197 (2020), the Supreme Court, in a 5-4 decision, vindicated Presidential executive authority by holding that Congress may not enact a provision that states that the Director, who has significant executive authority, could only be removed for cause. This, the Court held, violated the separation of powers by constraining the President, who can generally remove officers at will. Importantly, in arriving at this holding, the Court interpreted Article II as urged by those who argue that sole executive authority within the Office of the President is the grant of the Clause and the Constitution. The Court stated:
“Article II of the federal Constitution vests the entire ‘Executive Power’ in the President alone, though lesser executive officers may assist the President in discharging his duties. The President retains the power to supervise and to remove these lesser executive officers, and Congress may not restrict the President’s power to remove such officers, except in two circumstances, neither of which was present in this case.”
Professor Calabresi, in his book The Unitary Executive cited earlier, frames this issue in a way that echoes in recent Supreme Court jurisprudence;
“…the theory of the unitary executive holds that the Vesting Clause of Article II, which provides that ‘the executive Power shall be vested in a President of the United States of America,’ is a grant to the president of all of the executive power, which includes the power to remove and direct all lower-level government officials. The President is not only the commander in chief of the military but also the chief law enforcement officer in chief of the federal government. The President’s powers go beyond those specifically enumerated in Article II, sections 2 and 3, and include at least some implied, residual powers, like the removal power as well…”
Although Congress may constrain some of these powers over “inferior officers with limited duties and no policymaking roles,” it met its limits in the Seila Law case. This return to real separation of powers issues by the Supreme Court and its interpretation of Article II will set the stage for the litigation to come. Discussion to follow later.
THE FRAMERS REJECTED A WEAK EXECUTIVE CONSTRAINED BY THE LEGISLATURE, AND THE LESSONS OF THE ARTICLES OF THE CONFEDERACY PROVIDE THE HISTORICAL PRECEDENT
One would think that a Revolution based upon the rejection of the tyranny of the English King would lead to the formation of the office of President during the Constitutional Convention as leaning toward a weak ceremonial President simply tasked with enforcing the laws of the all-supreme legislature. The practices of the post-Revolution state legislatures revealed the opposite. James Madison stated that “vicious legislation” enacted by the states had trampled individual rights in favor of the self-interest of the lawmakers and that they had advanced personal interest over public good. Their state constitutions at first created weak executives such that Jefferson observed that vesting all power in a legislature was “precisely the definition of despotic government.” The debates in Philadelphia had centered on whether, like the proposed Congress, split into two bodies, the Executive should be comprised of two or three designees. Madison and others prevailed, and the Executive would be of a unitary design with “energy and vigor” to steer the new Republic through the uncertainties of the then-existing world order. One President, one chief executive. France and Spain had interests here, and only a strong executive in a unified federal government would work within a framework of federalism to assert new power on the world stage. The commitment to a single vigorous chief executive was embodied in the first section of Article II, which provides not only that the executive power would be vested in a single President, but at Section 3 would provide that the president “shall take care that the laws be faithfully executed.” The Opinions Clause of Article II also provided that the presidents would be supported by other executive officials and could seek their counsel at his will. There has been little doubt that after the Convention and ultimate ratification that our Constitution established a unitary executive with independence from the other Branches subject to separation of powers principles. Congressional creation of agencies and laws that constrain this significant authority is unconstitutional.
THE LATE JUSTICE ANTONIN SCALIA STILL HAS A VOICE, AND IT WILL BE HEARD
One of the provisions enacted in the post-Nixon era created significant controversy as Congress passed the Ethics in Government Act of 1978, which created a special court that could receive an appointment from the Attorney General of an “independent counsel” to prosecute government officials for certain violations of federal law. In the 1988 case of Morrison v. Olson, 487 U.S. 654, this law was challenged head-on as a violation of the separation of powers. The Court upheld the law, which ultimately was allowed to expire during Bill Clinton’s last year in Office ( He was the subject of one of its most widely known uses, appointing Ken Starr, and resulted in an unsuccessful impeachment of him). Both parties ultimately saw it as a partisan tool and came to realize that the lone dissenter, Justice Antonin Scalia, was right. It intruded upon the authority of the President as the sole executive power. It could be used for purely partisan purposes. His dissent has become more widely cited than the poorly reasoned cop-out that the decision really was. He spared no words:
“to repeat, Article II, Section 1, Clause 1 of the Constitution provides:
The executive Power shall be vested in a President of the United States.
…this does not mean SOME of the executive power but ALL of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation of powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States, it is void…”
Years later, in Seila Law and other cases, such as the presidential immunity case of last year, this Court has perhaps returned to the view that Congress has created agencies and regulations that have outsourced both legislative functions and an inevitable return to a Madisonian view expressed in Federalist 51:
“…In republican government the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit… as the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it be fortified…”
TRUMP REALIZES THIS IS THE MOMENT AS THE BIDEN ADMINISTRATION CLEARLY DESTROYED THE PUBLIC TRUST
The foregoing has set the stage for what the Supreme Court may ultimately vindicate—the structural interpretation of the Constitution that fully and finally sets the guardrails of presidential authority. The Take Care Clause, The Vesting Clause, and the Opinions Clause all provide, along with historical precedent, the cover for many of the President’s currently challenged actions now challenged in carefully shopped courts. Let’s examine a few.
- The Civil Service Act provides due process for many non-policymaking federal employees; however, a buy-out waives these, and the reclassification of many into policymaking roles would allow for summary dismissal. There is a provision that also allows terminations to preserve the “efficiency of the service.” These actions to reduce an ever-growing federal workforce at great cost and, in some cases, limited benefit will be seen as executive action with authoritative cover.
- Immigration enforcement is a well-settled function of the Executive Branch. In fact, the current Administration is enforcing well-stated and long-standing law, and any due process afforded to those here illegally will be extended to them. Public opinion favors such enforcement overwhelmingly.
- The impoundment issues are more complex. Those appropriations with open-ended disbursements may well be redirected. Many Administrations have done this. For those expenditures that are directed, Congress can grant deferrals or recissions. There are Republican majorities in both chambers. No doubt the questionable constitutionality of the Impoundment Control Act may ultimately be litigated. It is time.
- USAID was spawned as the result of an Executive Order signed by John F. Kennedy and authorized by the Foreign Assistance Act of 1961. It has significant connections to the Department of State, and the proposed structural changes all involve the foreign relations power of the Executive. Realigning questionable taxpayer outlays to real foreign policy objectives is within the Executive’s power, and the shadowy “independence” of USAID and its lack of oversight also speak to the function of the President and the Executive to see that the laws are faithfully executed. These actions will stand, and what we find out will be unsettling to the hardworking taxpayer. Secretary Rubio has already instituted waivers for those programs that truly benefit our foreign relations and save lives;
- The Executive “pause” and review of budget outlays is entirely consistent with an initiative to uncover fraud and waste in a runaway federal government. This is a law enforcement function as well as a function to see that there is no unconstitutionality in expenditure decisions that are based upon race or political alignment. DEI is unconstitutional. Period. This is within the purview of a strong Executive.
CONCLUSION
Congress and the Executive will be, in this Republic, often in a state of tension as each department seeks to concentrate power and reduce the power of the other branch. The Republic has survived due to the balances and checks discussed herein and elsewhere. The accountability of the public vote, impeachment, and the final say of the judiciary all combine to create some uneasy stasis. To his credit, and he will certainly see the limits of his authority in this term, Trump has set in motion another test of the Framers’ vision. The removal of illegal aliens who are criminal agents, the protection of the Treasury, the deletion of unconstitutional regulations and programs from the landscape, and the detection of what appears to be widespread fraud and waste will define this, his final term. No, he cannot unilaterally remove birthright citizenship, but he can tee up the issue of “subject to the jurisdiction thereof.” His cabinet can restart our economy using our natural resources while protecting the environment. Congress has its role, and we will see our Republic survive. This is the Supreme Court that will rule for the ages. It already has.
Mike Imprevento
February 17, 2025
