The Unitary Executive Is About to Get Turbo-Charged
The Supreme Court appears headed toward a ruling that goes most of the way to a full-blown unitary-executive regime.
Harry Litman, a former U.S. attorney, hosts the Talking Feds podcast and writes on Substack at Talking Feds.
By the time the justices rose from the U.S. Supreme Court bench on Monday, the widespread assumption — one I share — had hardened into near-certainty: The court is going to overrule its 90-year-old Humphrey’s Executor decision. For people who don’t live in the weeds of administrative law, that might sound technical or remote. It’s not. Overruling Humphrey’s is a constitutional and practical earthquake, softened only because the court has sent out foreshocks — warning jolts — in decisions for the past several years.
The result might seem the apotheosis of the court’s embrace of the unitary-executive theory — the crisp syllogism that if a power resides in the executive branch, the president must have the authority to remove the officials who exercise it.
Critically, the Supreme Court conservatives’ embrace of the theory looks as if it will be faint-hearted — and thus incomplete. Such a faint-hearted embrace will leave the whole area of law internally contradictory.
To be sure, the likely decision in Trump v. Slaughter will rewrite both constitutional and administrative law and hand the president dramatically greater political control over regulatory functions that touch every aspect of Americans’ daily lives.
Think of the alphabet-soup agencies whose decisions shape everything from your cellphone bill to the chemicals in your drinking water to the fees your bank can charge: the FTC, FCC, CFPB, NLRB, FERC and SEC. For nearly a century, these bodies have carried out their critical work with a modicum of political insulation: The president could fire their leaders only for cause. The basic idea was to ensure that foundational judgments about fair markets, consumer protection, labor and environmental safety rested on professional determinations rather than partisan directives.
But the court now stands ready to detonate that balanced arrangement. If — or rather when — Humphrey’s Executor falls, the constitutionally permissible model becomes one in which the president can fire agency heads at will, for any reason at all, including because he dislikes their politics or, as in the case of former Federal Trade Commission member Rebecca Slaughter, the party they belong to.
On Monday, Justice Elena Kagan advanced a line of questioning that went straight to the heart of the matter: She reminded the solicitor general, arguing on behalf of the president, that Congress’s decision to create independent agencies was part of an explicit structural bargain: Congress delegated substantial policymaking authority precisely because it also imposed modest restraints on presidential removal. The insulation was not a historical accident but the very mechanism that made the delegation tolerable. If Humphrey’s Executor is discarded, the rationale for allowing these agencies to wield sweeping authority evaporates. The executive gains new leverage; the public loses the protections Congress believed essential.
Several justices, beginning with Chief Justice John Roberts, were clearly casting about for a “middle ground” that would allow them to overrule Humphrey’s Executor yet still preserve a measure of political independence for certain agencies — most notably the Federal Reserve. The reason is obvious: Giving President Donald Trump in particular the power to fire the chair of the Federal Reserve on a whim could ignite economic bedlam here and around the world.
But that search for a limiting principle is simply another way of saying that they want to travel 90 percent down a road that is, in truth, all or nothing. There is no principled basis to exempt the Fed from at-will removal while stripping other expert agencies of insulation. The only justification is the very one the court is otherwise rejecting everywhere else — the need for political independence grounded in technical expertise.
Is there a way to repair the damage that is coming to the balance of our constitutional system of shared power? It’s worth considering what a genuinely big-picture solution might look like — one that would take the court’s own logic seriously and meet it on its own terms.
In theory, Congress could dissolve the independent agencies altogether and rebuild them within the legislative branch, vesting the quasi-legislative (rulemaking) and quasi-judicial (adjudicatory) functions squarely in congressional entities. The executive would retain unfettered control only over tasks that are purely executive in nature: investigation, enforcement, and prosecution. Such a reconstruction would restore formal constitutional clarity: the executive executes, the legislature legislates, and expert policy development and adjudication reside in the branch politically accountable for making law.
This would be a coherent response to the court’s emerging theory. It would preserve the expert regulatory apparatus modern life requires while eliminating the tension the justices now deem constitutionally intolerable. But politically, at least for now, it is impossible. Any such reconstruction would require veto-proof majorities in both Houses of Congress — an unimaginable prospect in the current environment. It is reminiscent of Shelby County, where the court announced that the Voting Rights Act’s coverage formula was no longer justified; Congress could, in theory, have enacted a new one, but everyone understood it would not.
And so we are headed toward a result that goes about seven-eighths of the way toward a full-blown unitary-executive regime.
The court appears poised to constitutionalize the harms — the sweeping expansion of presidential control, the loss of expert insulation, the politicization of core regulatory judgments — while shrinking from the implications of arriving at its doctrinal destination. We will be left with agencies that still wield enormous policymaking authority but are now vulnerable to political purge.
It’s a constitutional restructure erected on a flawed foundation that cannot bear its full weight. The instability will plague the law and the administrative state for years to come.
Thanks to Harry for this fantastic Renovator guest piece! If you liked it, go watch Harry discuss this issue in more depth on Talking Feds Live with Georgetown Law professor Steve Vladeck:
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The people who founded our nation and those who wrote or ratified the original Constitution (and very promptly thereafter amended it to include the Bill of Rights) repeatedly sought to emphasize a particular governing principle. As Chief Justice Marshall (speaking for SCOTUS) plainly put it in Marbury v. Madison in 1803, "The government of the United States has been emphatically termed a government of laws, and not of men."
SCOTUS in Youngstown Sheet & Tube Co. v. Sawyer in 1952 emphasized that Article II emphasized that the president "shall take Care that the Laws be faithfully executed," and that "authority" is emphatically limited by the "words of the Fifth Amendment that 'No person shall be . . . deprived of life, liberty or property, without due process of law . . . .' One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules."
As Justice Frankfurter put it in his concurring opinion in Cooper v. Aaron in 1958 (quoting the concurring opinion of Justices Frankfurter, Black and Douglas in United States v. United Mine Workers in 1947):
"The historic phrase 'a government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. 'A government of laws and not of men' was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.
"But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. 'Civilization involves subjection of force to reason, and the agency of this subjection is law.' (Pound, The Future of Law (1937) 47 Yale L. J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be 'as free, impartial, and independent as the lot of humanity will admit.' So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are [meant to be] for."
The "limiting principle" that Chief Justice Roberts seems to be pretending not to see is stated directly and unambiguously in our Constitution.
Our Constitution (our first and most important words as a nation) started by emphasizing the sovereignty of the People (not the President). “We the People” did “ordain and establish [our] Constitution” to “secure the Blessings of Liberty to ourselves.” The People expressly acted as the supreme legislative body in the U.S. to establish “the supreme Law of the Land.” Article VI and the oaths of office of all legislators and “all executive and judicial Officers, both of the United States and of [all] States” (including the President) emphasized that the foremost and constant duty of every such public servant is “to support [our] Constitution” in all official conduct.
Article II further emphasized that the first, foremost and constant duty of every president is to "preserve, protect and defend [our] Constitution." Every power of any president is limited by the president's overriding duty to "preserve, protect and defend [our] Constitution."
Article VI emphasized that the People vested (limited) power in Congress to enact “Laws” that were “made in Pursuance” of our “Constitution.” More specifically, Article I emphasizes that the People “vested in a Congress” “All legislative Powers," i.e., the power (and the duty) to make “all Laws” that are “necessary and proper for carrying into Execution” the “Powers” of Congress “and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Very clearly and irrefutably, Articles I, II and VI established that the People vested in Congress the power (and assigned the duty) to make laws that limit the powers of the president in Article II. Article II expressly emphasizes that the People “vested in a President” the “executive Power,” meaning the power (and the duty) to “take Care that the Laws be faithfully executed” and otherwise to “preserve, protect and defend” our “Constitution.”
In Federalist No. 51, James Madison (echoing John Locke’s Second Treatise of Government) emphasized, “In republican government, the legislative authority necessarily predominates.” In Federalist No. 48, Madison elaborated regarding the powers of national and state legislatures: “The legislative department derives a superiority in our governments from other circumstances,” including that “[i]ts constitutional powers” are “more extensive, and less susceptible of precise limits” than the executive or judicial departments. In addition, “the legislative department alone has access to the pockets of the people” to fund the operations of our public servants. Madison also emphasized that “[i]n a democracy,” the “people exercise in person the legislative functions,” but in our “representative republic,” the people in “the constitution of the government” (our Constitution) established “the boundaries” of “the legislative, executive, and judiciary departments” as “barriers against the encroaching spirit of power” of any employee or employees of any such department.
The People never vested any power in any public servant (or any combination of public servants) to violate any law (or commit any crime), much less violate or undermine our Constitution. That necessarily was a primary principle emphasized by our Constitution, above, and by Chief Justice Marshal (and SCOTUS) in Marbury v. Madison.