DFA, Patricia Shoap
If you’re like me, you probably haven’t given much thought to the unitary executive theory. It sounds like an obscure intellectual think-tank idea. But hear me out. This seemingly opaque theory helps explain some important developments in our country. Like the willingness of the Republicans in Congress to surrender powers to the President. Like the Supreme Court’s willingness to give expansive immunity to the President. Like President Trump thinking that he has the right to remove civil servants at-will. The unitary executive theory supports, simply put, a restructuring of the balance of powers between our three branches of government. Supporters of the theory have permeated our government at the highest levels, including the Supreme Court.
The unitary executive theory supports an expansive reading of Article II of the Constitution, which vests power over the executive branch in the President. Taken to its extreme, this means that Congress cannot limit the President’s political power over any executive branch employees, including independent agencies, which were designed by Congress to limit Presidential political influence and promote expertise in government. A prime example is the Federal Reserve. It also means that the President can direct prosecutions by the Department of Justice. Sound familiar? Until recently, this has been a decidedly minority view.
President Trump takes the position that he can fire any executive branch employee for any reason. He refers to these civil servants as the “deep state.” This explains the actions by DOGE (the Department of Government Efficiency) to fire civil servants without cause. It also explains Trump’s firing of Inspectors General without cause or notice to Congress.
The President’s powers, however, also include a duty to faithfully execute the laws enacted by Congress. Congress has enacted laws protecting civil servants from the political whims of a President, intending that they represent an apolitical merit-based workforce. In the tension between the President’s power over the Executive Branch and his duty to faithfully execute laws, the unitary executive theory sides with expanded Presidential powers seemingly at every turn.
The modern unitary executive theory has its roots in the Reagan era, when young attorneys, including now Chief Justice Roberts and Justice Alito, promoted the theory. It was thought that post-Watergate statutory limits to rein in a corrupt president took too much power away from the executive. In 2024, the Supreme Court, led by Chief Justice Roberts, ruled that the President has broad immunity from criminal liability for official acts. In her dissent, Justice Sotomayor stated that “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.” What types of criminal official acts are at issue? Can the President order the extrajudicial killing of alleged drug runners in the Caribbean with impunity? Or the abduction of the Venezuelan President? Most likely.
The unitary executive theory also has supporters in Congress. This helps explain the extraordinary abdication of power by Congressional Republicans in support of the President. For example, the President has declined to spend funds appropriated by Congress – essentially vetoing Congressional action after the fact. President Trump has also gutted Congressionally-established agencies, such as the Department of Education and USAID. He has also avoided the Senate confirmation process for multiple U.S. Attorneys. Congress has held no oversight hearings on any of those matters.
Does the unitary executive theory help explain the hesitancy by the current Congress to require that the President execute the laws it has passed? Does it also explain the Supreme Court’s recent decisions to expand the powers of the Presidency? I think it does. It can give some perspective to those of us who are trying to analyze how and why President Trump is able to exercise more power than we think should be allowed under the Constitution. The theory certainly provides fuel to a President bent on accruing power at the expense of the other branches of government.
Support for the unitary executive theory should require a President acting in good faith and with a sound moral compass. I would submit that the Founders recognized that such a President was not guaranteed. A robust balance of powers, with real checks on executive power, was intended to help the country survive a less than scrupulous executive. It also guards against a President using retribution, favoritism and politics to run our government. Those are guardrails I think we continue to need. In fact, I would submit that President Trump’s abuses of power demonstrate the inherent dangers of the unitary executive theory.
Patricia Shoap is a retired attorney who specialized in Workers’ Compensation and Social Security disability law. She is current Chair of the People’s Town Hall Committee of Gettysburg, which supports direct civic engagement with candidates through public forums, a member of Gettysburg for Gun Sense, and an Op-ed writer for Gettysburg Democracy for America (DFA).
