Unitary Executive Theory

 

In a recent NYT article about the expansion of powers being bestowed upon the position of president resulting in a minimizing of congressional oversight, the term Unitary Executive Theory was used. This major shift in our understanding of the US Constitution and the intent of the founding fathers, is being justified by an originalist interpretation of that document. It is this originalist position upon which this new court has been relying in recent decisions. In many of these decisions they extensively quote a leading originalist law professor, Caleb Nelson, a former law clerk to Clarence Thomas.

An “originalist interpretation” of the constitution is one that holds the document should be viewed based on the original public meaning at the time it was adopted. This is contrary to the “living constitution” idea which holds that the founders intended the Constitution evolve over time. It would be like interpreting the modern Bible through the lens of the Old Testament.

The NYT article points out that the originalist Professor Nelson denies that originalism supports the unitary executive theory. Nelson’s opinion should carry weight as he has been cited by every one of the six conservative majority in over a dozen of their opinions.

In extending the powers of the president, Chief Justice Roberts referenced debates during the first Congress (two and a half centuries ago) saying they settled the matter. Professor Nelson disagrees and warned against “legalizing the full exertion of a tyrannical disposition.” He goes on that the first Congress did not come to a consensus as they realized that not all future presidents would have the sterling character of George Washington. It would take one Donald John Trump to prove them very right.

For those who would like to dive deeper into the Unitary Executive Theory, I decided to put that to ChatGPT for their analysis. You will find it below.

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Analysis of the Unitary Executive Theory in the United States

I. Introduction

The Unitary Executive Theory (UET) is a constitutional doctrine concerning the scope of presidential power within the American system of separation of powers. At its core, the theory posits that Article II of the U.S. Constitution vests all executive power in the President, granting the office broad authority over the entire executive branch. While the extent of that authority remains contested, UET has been a central point of debate in constitutional law, administrative governance, and presidential practice—especially since the late 20th century.

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II. Constitutional Foundation

The Unitary Executive Theory draws its textual basis primarily from Article II, Section 1 of the Constitution, which states that “the executive Power shall be vested in a President of the United States of America.” Proponents interpret this as granting the President direct control over all officials who execute federal law. They contrast this with Article I, which vests legislative powers in Congress collectively, suggesting that the President’s authority is singular, hierarchical, and indivisible.

Supporters of the theory often emphasize the Take Care Clause (“he shall take Care that the Laws be faithfully executed”) as evidence that the President must have the ability to direct, supervise, and, if necessary, remove executive officers to ensure faithful execution of the law.

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III. Historical and Judicial Development

Historically, the roots of UET can be traced to the debates of the First Congress in 1789, particularly the “Decision of 1789,” in which legislators appeared to affirm the President’s unilateral authority to remove executive officers. However, this precedent has been interpreted in varying ways over time.

The Supreme Court’s jurisprudence has oscillated between expansive and limited readings of presidential control:

• Myers v. United States (1926): The Court struck down congressional restrictions on the President’s ability to remove executive officers, embracing a strong version of UET.

• Humphrey’s Executor v. United States (1935): The Court limited Myers, upholding restrictions on removal for members of independent regulatory commissions, distinguishing between “purely executive” and “quasi-legislative/judicial” functions.

• Morrison v. Olson (1988): The Court further upheld limits on removal power in the context of independent counsels, rejecting a robust UET.

• Seila Law v. CFPB (2020): A modern partial revival of the theory, the Court struck down restrictions on the President’s ability to remove the single director of the Consumer Financial Protection Bureau, reaffirming the President’s constitutional control over executive officers.

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IV. Theoretical and Practical Implications

In theory, the Unitary Executive enhances accountability and efficiency, ensuring that the executive branch acts under a clear line of democratic responsibility. If all executive power flows from the President, voters can more easily attribute success or failure in governance to one elected individual.

Critics, however, argue that the theory risks concentrating excessive power in the presidency, undermining the system of checks and balances and threatening independent oversight institutions. They emphasize that the framers designed a system of divided powers to prevent tyranny, not to create an “imperial presidency.”

Practically, UET influences debates over:

• The independence of agencies like the FTC, SEC, and CFPB.

• Executive privilege and control over information.

• Presidential authority in national security and administrative rulemaking.

• The scope of executive orders and signing statements.

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V. Contemporary Relevance

In recent decades, UET has been associated with efforts to expand presidential power, particularly in national security and administrative governance. The George W. Bush administration invoked the theory to justify broad executive discretion in the War on Terror, while later administrations have cited it in debates over regulatory control and executive orders. The Supreme Court’s evolving approach suggests a partial return to a stronger executive model, especially regarding removal power and agency independence.

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VI. Conclusion

The Unitary Executive Theory remains a cornerstone of constitutional debate in the United States, reflecting the ongoing tension between energy in the executive—as Alexander Hamilton advocated in Federalist No. 70—and the principle of separated powers essential to republican government. Whether viewed as a necessary safeguard of effective governance or as a potential enabler of executive overreach, the theory continues to shape the structure and operation of the modern presidency.