Tag: Unitary Executive

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“Reining In” Trump, and the “Unitary Executive” Theory Versus a Century of Constitutional Interpretation

This post follows up on the one immediately below, which, among other things, addresses George Will’s magisterial thoughts on the unitary executive legal theory of constitutional interpretation. Several thoughts here. 

Why Do We Have Independent Regulatory Agencies?

Beginning with the Interstate Commerce Commission, established in 1887, Congress has created more than 25 independent agencies, chiefly to foster the development of regulatory specialization and expertise, and to provide some degree of insulation from political pressures—including the kinds of political pressures resulting from generous campaign contributions by affected interests. 

Does Legal Precedent Support the Constitutionality of the Independent Regulatory Agencies?

Yes, it does. The leading case is Humphrey’s Executor v. United States, decided by the Supreme Court in 1935. The issue there was essentially identical to the current case, Trump v. Slaughter, argued before the Supreme Court in December, 2025. In each case, the President fired one of the five FTC commissioners, not “for cause,” as required by the Federal Trade Commission Act, but rather because he or she different with the President on political and policy grounds. 

To amplify a little, Mr. Humphrey was a loud-mouthed, obnoxious anti-New Dealer. There was little doubt that President Roosevelt’s decision to fire him violated the FTC Act. Rather, the question was whether the statutory provision that Roosevelt violated was constitutional. The Court ruled nine to zero that yes, the pertinent FTC Act provision was in fact constitutional—and that it was OK to have independent regulatory agencies. 

In the current Trump v. Slaughter case, both sides have elected to rely in general legal issues rather than whatever differences on policy may exist between Commissioner Slaughter and Orange Mussolini. 

On the Face of Things, Should the Court Apply the Stare Decisis Doctrine and Reaffirm the 1935 Humphrey’s Executor Precedent?

Yes. The precedent is long standing and has enjoyed bipartisan support. There is no new or compelling reason to overturn it. 

So, Does That Mean a Supreme Court Decision Favoring Trump Would be Clearly Unlawful?

No, it does not. If you want to know more, I recommend the succinct but helpful discussion in Wikipedia. 

Which Way is the Court Likely to Rule?

For Trump, and against Humphrey’s Executor. 

Is the Court’s Likely Ruling Likely to Lead to Despotism?

No, no more than a ruling for Roosevelt back in 1935 would have led to despotism. 

Is the Court’s Likely Ruling Likely, in the Current Environment, to Facilitate Kleptocracy?

Did God make little green apples? And does it rain in Indianapolis in the summertime?

A point of personal privilege here: Much of my 35 years of practice involved merger work before the Federal Trade Commission and the Antitrust Division. The staff was consistently conscientious, though they sometimes made unwise decisions, mostly because of ideological blinders. But the President was not taking bribes to dictate outcomes to the FTC or the Justice Department. And attempts by the parties or their counsel to use political influence, let alone bribery, in particular cases would have been highly counterproductive. 

Now, it’s going to be Katie bar the door. 

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Cass Sunstein Explains the Unitary Executive Theory of Presidential Power

Cass R. Sunstein, This Theory Is Behind Trump’s Power Grab

Professor Sunstein, a distinguished public intellectual, teaches law at Harvard. As I often remark: you can always tell a Harvard man, but you can’t tell him much. 

In this guest essay in the New York Times, Sunstein brilliantly covers a whole lot of ground and explains a whole lot of political theory and history, in a way that an ordinary educated person can readily understand. 

Bottom line: full presidential control over all aspects of the federal executive is not, contrary to claims of some, mandated by the text of the Constitution or by our history. Such massive control poses many, many dangers.

Professor Sunstein is a polite person, so he did not say, in so many words, that presidential dictatorial powers given to a crazed monomaniac would likely produce disastrous results. 

Bad as the unitary executive theory, read broadly, would be, Trump is also pursuing other ideas that are even worse. Sunstein writes,

[C]onsider the claim that the president gets to impound congressionally appropriated funds and choose which ones to spend. That claim would render Congress subordinate to the executive in what might be its most fundamental power: the purse. Impoundment authority, on the part of the president, would go well beyond the idea of a unitary executive. It would be a devastating blow to the separation of powers.

He did not add—but might well have added—that the notion that the president gets to pick and choose which court orders he obeys would likewise end the constitutional republic, and that right soon.