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Question #1: What is the history of the unitary executive theory?
The unitary executive theory is a constitutional theory about the scope of presidential power in the United States. It argues that the President has the power to control the entire executive branch absolutely, without interference from Congress or the courts in areas where the Constitution gives the executive authority.
Founding Era (Late 18th Century)
The theory is rooted in Article II of the U.S. Constitution, which vests "the executive Power" in a single President.
Alexander Hamilton was an early proponent, especially in Federalist No. 70, where he argued for a strong, energetic executive.
The early debates centered on removal power—whether the President could remove executive officials without Senate approval. This issue was hotly contested in 1789 during the "Decision of 1789," which many later interpreters took as affirming presidential control over executive officers.
19th Century
Practice was mixed. Some presidents (like Andrew Jackson) asserted strong executive control, while others deferred more to Congress.
The Tenure of Office Act (1867), passed over President Andrew Johnson’s veto, tried to limit presidential removal power, leading to Johnson’s impeachment—this highlighted tensions over executive control.
The Supreme Court was mostly quiet on the theory, but the seeds were planted for later disputes.
20th Century
In Myers v. United States (1926), the Supreme Court sided with a strong view of presidential removal power, invalidating a law requiring Senate approval to remove a postmaster.
But in Humphrey’s Executor v. United States (1935), the Court limited that power, distinguishing between purely executive officers and those in independent regulatory commissions (like the FTC).
The New Deal era saw Congress create many independent agencies, weakening the idea of a single, unitary executive.
Still, presidents like FDR and Reagan supported more centralized control over the executive branch.
Modern Developments (1980s–Present)
The theory gained prominence during the Reagan administration, when legal scholars like Steven Calabresi and Christopher Yoo gave it intellectual heft.
It became a centerpiece of conservative constitutional theory, especially through the Federalist Society.
In Morrison v. Olson (1988), the Supreme Court upheld the constitutionality of independent counsels, rejecting a strong unitary executive view. Justice Scalia’s lone dissent, however, became a landmark defense of the theory.
The theory resurfaced in:
George W. Bush’s administration, particularly in signing statements and national security matters post-9/11.
The Trump administration, which openly embraced broad executive powers, especially regarding the DOJ and removal of officials.
Recent Supreme Court Cases
Free Enterprise Fund v. PCAOB (2010): Court struck down dual layers of for-cause removal protections, bolstering the unitary executive theory.
Seila Law v. CFPB (2020): Invalidated restrictions on removing the CFPB director, affirming the President’s removal power over single-headed agencies.
Collins v. Yellen (2021): Reaffirmed the Seila Law ruling, continuing the trend toward a stronger executive.
Summary of Key Ideas
Strong View: President must have full control over executive officials, including firing them at will.
Moderate View: Some independence for agencies is okay, especially for quasi-legislative or quasi-judicial functions.
Weak View: The President's control can be limited by Congress creating independent agencies.
Question #2:
Does the president have full control over all executive decisions?
The short answer is: not exactly. While the President is the head of the executive branch and has a lot of power, there are constitutional, legal, and practical limits to that control.
Let’s break it down:
What the President can control:
Top-level executive officers: The President appoints (with Senate approval) and can often remove Cabinet secretaries and agency heads.
Executive orders and directives: The President can issue orders to federal agencies to implement policies (as long as they don’t violate existing law).
Military and foreign policy: As Commander-in-Chief, the President has wide discretion over military operations and diplomacy.
Prosecution priorities: Through the Attorney General and DOJ, the President can set enforcement priorities (though not specific cases).
What the President can’t fully control:
1. Independent agencies
Agencies like the Federal Reserve, FTC, or SEC have leaders who are often protected from at-will removal.
Their independence is meant to insulate them from political pressure.
Courts have sometimes upheld these protections (e.g., Humphrey’s Executor), though this is evolving (see Seila Law and Collins v. Yellen).
2. Civil service protections
Most federal employees are career civil servants, not political appointees.
They’re protected from firing without cause, which limits the President’s control over lower-level decisions.
3. Congressional statutes
Congress can delegate authority to agencies and limit how that power is used.
The President can’t override these laws unless they’re ruled unconstitutional or changed by Congress.
4. Judicial review
Courts can strike down executive actions that violate the Constitution or federal law.
Example: Trump’s attempt to add a citizenship question to the census was blocked by the Supreme Court (Dept. of Commerce v. New York).
5. Budgetary controls
Congress holds the power of the purse, so the President can't fund programs without congressional approval.
What it really comes down to:
The unitary executive theory argues for strong presidential control, but even under that view, the President's power is not unlimited. In practice, it’s a balancing act between:
The Constitution’s grant of executive power,
Congress’s ability to structure the bureaucracy, and
The courts’ interpretation of those powers and limits.
