By John Kruzel
WASHINGTON (Reuters) – Donald Trump’s broad assertions of power appear to be advancing an aggressive version of a legal doctrine called the “unitary executive” theory that envisions vast executive authority for a president, setting up potential U.S. Supreme Court showdowns.
The conservative theory’s advocates argue that Article II of the U.S. Constitution, which delineates presidential powers, gives the president sole authority over the federal government’s executive branch. It envisions robust powers even when Congress has sought to impose certain limits, such as restricting a president’s ability to fire the heads of some independent agencies.
The Supreme Court is expected to be called upon to review at least one key legal dispute over the Republican president’s contentious actions implicating this doctrine, with numerous legal challenges already moving through lower courts.
Trump’s firing of a member of the National Labor Relations Board, an independent executive branch agency created by Congress, may test the willingness of the nation’s top judicial body to embrace the robust view of the theory that Trump’s administration is expected to present. And the nine justices could be asked to overturn a 90-year-old Supreme Court precedent that limits a president’s ability to dismiss certain agency heads.
Under the Constitution, the U.S. government is divided into the executive, legislative and judicial branches – set up in the 18th century to ensure checks and balances within the American system. Advocates of the unitary executive theory argue that presidents legally can remove any executive branch official, including heads of independent agencies, even if such action would violate job protections enshrined in laws passed by Congress.
The doctrine was first popularized four decades ago by lawyers in Republican former President Ronald Reagan’s administration and may be pushed further during the Trump era.
The theory’s view of the president’s removal power has been embraced gradually in recent decades by the Supreme Court, whose current 6-3 conservative majority includes three justices appointed by Trump. But it has yet to endorse actions like some of Trump’s sweeping assertions of executive power since returning to office on January 20.
“Trump has claimed the power to dismiss the heads of independent agencies, though Congress has restricted such authority,” University of North Carolina School of Law professor Michael Gerhardt said. “If the court allows Trump to do that, or does not interfere with Trump’s doing that, it will help to cement the unitary theory of the executive into American constitutional law.”
Some scholars said Trump’s more contentious actions in recent weeks were reminiscent of a view he expressed in 2019 during his first term in office when he said: “I have an Article II, where I have the right to do whatever I want as president.”
“It does seem to me like Trump has gone beyond that classic understanding of unitary executive theory toward something even more extreme,” New York University School of Law professor Noah Rosenblum said. “Witness, for example, his rejection of Congress’ power of the purse, or his attempt to dissolve an agency that exists as a matter of law.”
Various plaintiffs have challenged Trump’s actions to oust agency leaders, undermine federal workforce protections and dismantle congressionally established agencies including the U.S. Agency for International Development, as well as the legality of an entity he created that is led by Elon Musk dedicated to downsizing the government.
THEORY GAINS TRACTION
Steven Calabresi, a prominent champion of the doctrine, was working as an assistant to the Reagan administration’s Attorney General Ed Meese when he became interested in the subject. The theory arose from the widely shared view among Justice Department officials at the time that a law passed establishing a special prosecutor to investigate what was called the Iran-contra scandal was an unconstitutional intrusion by Congress on presidential powers.
“The idea of there being a prosecutor in the executive branch who’s independent of the president was contrary to the unitary executive, because we thought the Constitution gave all of the executive power to the president,” Calabresi said.
His interest in the theory was reinforced by his frustrations with civil servants ignoring orders from Meese to grant asylum to people who fled the Soviet Union or China and faced execution if deported – the sort of bureaucratic resistance, Calabresi said, that Trump “now calls the ‘deep state.’”
“I remain very much of the view that Article II does give the president all of the executive power, and I think the president has the ability to control subordinates in the executive branch who are exercising executive power,” said Calabresi, now a law professor at Northwestern University in Illinois.
Calabresi added that “the core of the unitary executive theory is that the president can fire subordinates in the executive branch.”
But how far does the doctrine go?
“The core of the theory was that the president could fire officers in the executive branch at will, without any restraint from Congress,” University of Illinois Chicago law professor Steve Schwinn said. “But some advocates picked up that idea, drew on the logic, and used it to argue for more expansive presidential power in general.”
A 1935 PRECEDENT
Trump’s firing of Gwynne Wilcox, a Democratic member of the National Labor Relations Board, paralyzed an agency that safeguards the rights of American workers.
Andrea Katz, a professor at Washington University School of Law in St. Louis, said that “by firing a commissioner whose tenure was protected by a term limit, Trump was essentially breaking a law to trigger a constitutional confrontation.”
Wilcox has argued in a lawsuit that her removal violated a federal law that allows a president to oust a board member only for neglect of duty or malfeasance in office. Wilcox’s lawsuit cited the Supreme Court’s 1935 ruling in a case called Humphrey’s Executor v. United States.
That ruling involved a conservative-majority Supreme Court restraining the actions of a Democratic president, Franklin Roosevelt. It decided that a president does not have unfettered power to remove commissioners of the U.S. Federal Trade Commission after Roosevelt fired an FTC commissioner over policy differences.
The Trump administration has a deadline this month to file a brief laying out its legal arguments in the Wilcox case.
“The Trump administration will almost surely defend its removals by asking the Supreme Court to adopt a more muscular version of the unitary executive theory,” said Christine Chabot, a professor at Marquette University Law School in Wisconsin.
The Wilcox dispute, Chabot said, is “a perfect test case for the Supreme Court to overrule Humphrey’s Executor.”
Trump’s actions may push beyond the limits of what the doctrine would allow, according to some scholars.
Schwinn, a critic of the doctrine, said that “the Trump administration’s efforts to close entire agencies are the clearest example of a robust unitary executive theory in practice.”
“Congress has the authority to create those agencies, to grant them power and to fund them,” Schwinn said. “The president has no authority to dismantle them without explicit authorization from Congress.”
Peter Margulies, a professor at Roger Williams University School of Law in Rhode Island, said that Trump’s executive orders “double down on the most extreme versions of the unitary executive theory.”
Margulies pointed to Trump’s efforts to fire civil service employees in a manner that seems designed to hollow out the federal workforce.
“He’s going further than most scholars who endorse the unitary executive, and much further than the Supreme Court,” Margulies said.
Rosenblum said Trump also seems to believe he has “dispensation power,” the power unilaterally to suspend a law.
“Not even the most aggressive theorist of the unitary executive believes that,” Rosenblum said. “The dispensation power was a royal power that the founders (of the country) believed had no place in a republic like the United States.”
(Reporting by John Kruzel; Editing by Will Dunham)