The Unitary Executive Theory in All of Its Historical Perversity 

Among the many theories of constitutional interpretation that swirl through American politics, the Unitary Executive Theory (UET) is the most important one circulating today. It played a prominent role in Chief Justice John Roberts’s majority opinion in Trump v. United States, where the six conservative Justices endorsed a novel doctrine of presidential immunity from criminal prosecution. The Court applied the theory again in Trump v. Slaughter, which gave the president broad authority to dismiss subordinate officials, even when the statutes creating their offices permit removal only “for inefficiency, neglect of duty, or malfeasance in office.”  

Scholarly commentary on the historical origins of the UET is already extensive, nuanced, and often repetitive. A cynic could argue that the volume of this commentary is inversely proportional to the evidence on which it rests. The primary foundation of the UET is the single sentence of the Vesting Clause of Article II of the Constitution, which states that “The executive power shall be vested in a president of the United States.” What the executive power comprises remains open to question. One partial answer appears in Article II, Section 3, which says that the president “shall take Care that the Laws be faithfully executed.” But that in turn begs another question: faithful to what? Is he constitutionally bound to administer duly enacted laws conscientiously, even though the vast majority of them were adopted without his assent? Or is he free to impose his own preferences in their enforcement, treating the Take Care Clause as a source of authority empowering him to eviscerate policies that he opposes, in fidelity to his own convictions? 

That is the course of action President Donald Trump’s second administration has pursued. Feeling unconstrained by any fear of criminal prosecution, the president prefers to govern by issuing executive orders that have become the American equivalent of a tsarist ukase. Whole departments and agencies have been decimated, their funds left unexpended, their staffs gutted, and their direction left in the hands of incompetent satraps like Secretary of “War” Peter Hedgseth and Secretary of Health and Human Services Robert F. Kennedy, Jr. One technique of this reign of misgovernance lies in the vigorous use of the presidential power to remove subordinates, which is exactly what Trump v. Slaughter permits. In his opinion, Chief Justice Roberts evoked the Take Care Clause as a source of presidential license, not obligation.  

To be taken seriously—in an era when the original meaning of the Constitution is the ostensible lodestar of interpretation—a theory of executive power this robust should be strongly grounded in historical sources. In fact, the advocates of the UET presume what they need to prove: that the adopters of the Constitution held a coherent and consensual view of presidential power that could be stretched so far. The more closely one surveys this historical foundation, the more tenuous the theory becomes. 

There are three vantage points for assessing these initial views of executive power. The first concerns the debates at the Constitutional Convention. The second focuses on a famous congressional debate of 1789, now labeled The Decision of 1789, which specifically addressed the removal power of the president. The third involves asking broader questions about how the Framers and other leaders in this period thought about the creation of institutions of national governance. 

The Framers of the Constitution endorsed the principle of a unitary executive quite early in their deliberations, on June 1, 1787. Only two Virginia delegates dissented: Governor Edmund Randolph, who had presented the Virginia Plan to the Convention three days earlier, and George Mason. Both preferred a plural executive. But that was the position that nearly all the other Framers rejected, not least because it resembled the mixture of royal and ministerial rule that formed the basis of Britain’s constitutional monarchy. 

The ensuing debates in the Federal Convention justified a unitary executive on two distinct grounds. The first involved the strategic advantages of having a single individual acting as the final decision-maker. This would endow the executive with vigor, energy, dispatch and, when needed, secrecy. These were not constant duties the executive would exercise daily, but valuable properties of dynamic leadership that mattered when necessity warranted. They were also monarchical traits, precisely because they avoided the delays and complications that would arise from collective deliberations involving several institutions or diverse factions. 

A very different value underlay the other side of the equation: responsibility. Many Framers regarded this as being more essential because it was a duty that had to be exercised daily. John Dickinson stated the point plainly on June 6. “Secrecy, vigor & dispatch are not the principal properties required in the Executive,” he argued. “Important as these are, that of responsibility is more so, which can only be preserved, by leaving it singly to discharge its functions.” Other Framers echoed this thought.  

Responsibility, in turn, had two dimensions, one administrative, the other political. The concept of administrative responsibility better explains the presidential duty “to take care that the laws be faithfully executed.” That duty does not depend on the political preferences of the president. Laws, after all, can be enacted over a presidential veto. Nor do they lose their force when a political party that previously opposed their adoption regains the presidency. So, too, the unique presidential oath of office requires the president to “faithfully execute” his office and “to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Fidelity is an obligation, not a matter of discretion. 

The second form of executive responsibility is about political accountability. This is an avowedly republican value, because it enables a sovereign electorate to know whom to hold accountable for public acts. Members of Congress cannot be placed in the same position, simply because they cast only individual votes in a large institution. The decisions taken by an energetic executive are qualitatively different. Here the existence of a final decision maker was essential to knowing whom to praise and whom to fault—and to reach that judgment through the voice of the electorate. 

A commitment to these two forms of responsibility made the creation of a unitary executive a dominant factor in drafting the Constitution. But accepting those key principles hardly exhausted all the other issues relating to the executive that dogged the Framers until their final deliberations. 

One cannot understand the complexity of these deliberations without grasping one basic fact. Among all the institutions the Framers created, the presidency was by far the most difficult to design. The Framers had no example of a national republican executive to imitate. Nor was there any obvious mode for its selection. In late July 1787 and again in mid-August, the Framers cycled through the three basic modes of election—by the national legislature, by the people at large, or by some novel scheme of presidential electors—before reaching an impasse that led them to defer a decision on the whole subject to the so-called Committee on Postponed Parts. 

Although little is known about its discussions, the Committee’s recommendations were certainly momentous. Beyond endorsing what we now call the Electoral College, the Committee shifted the power to make treaties and key executive and judicial appointments from the Senate to the president, with senatorial “advice and consent.” It took the authority to try impeachments away from the Supreme Court and gave it to the Senate, with the Chief Justice merely presiding.  

But some things the committee left unsolved. Failing to decide how presidential electors would be appointed, it defaulted that task to the state legislatures. That only created another problem. What would happen if a president died in office? To elect a new president, state legislatures would have to enact laws for their appointment, which would be time-consuming. A replacement had to be available on standby, which was how the vice presidency was created. While the vice president was monitoring the president’s health, he needed some other way to pass the time, so the Framers made him the presiding officer of the Senate. From 1789 well into the 20th century, that was his constitutional function. No vice president during this period was regarded as part of the executive branch (a point Chief Justice Roberts botched in Trump v. U.S.). 

Another source of disagreement arose over whether the president should be formally linked to an advisory or “privy” council. Proposals to this effect would not diminish the president’s status as sole holder of the executive power and its true decision maker. But they did indicate that many of the Framers—including such advocates of a strong executive as James Wilson and Gouverneur Morris—were still puzzling over its proper composition. In the end, although these proposals went nowhere, they illustrate how many questions and qualms about the presidency remained open as the Convention moved close to adjourning. 

That openness is also a measure of a residual uncertainty that should leave all of us skeptical about a doctrine as robust in its simplicity as the UET. It is impossible to reconcile the claims made in its behalf with the historical evidence that the Framers understood that the construction of the executive would remain a continuing project. And the Necessary and Proper Clause of Article I provided all the authority Congress needed to pursue it, to decide whether newly designed institutions—composed, say, of individuals qualified based on their expertise—would better serve the public interest 

Nor did the final editing of the Vesting Clause of Article II do anything to alter this situation. Until the final days of the Federal Convention, the clause had two sentences. The first vested the executive power “in a single person.” The second said, somewhat trivially, that “His stile shall be, ‘The President of the United States;’ and his title shall be, ‘His Excellency.’” Gouverneur Morris was the final editor of this wording, and it is evident that Morris merely wanted to compress two sentences into one and eliminate the needless references to “stile” and “title.” 

The guiding principle—the constitutional mantra—of the Vesting Clause thus inhered in the republican principle of responsibility. That is no longer a Republican principle that covers the second Trump administration. No American official has ever been less capable of accepting it than the current occupant of the destruction site known as the White House. In Trumpworld, someone else is always responsible when things go awry—preferably Barack Obama and Joe Biden, but almost any scapegoat will do. The most irresponsible act in American presidential history occurred when Trump spent the afternoon of January 6, 2021, blithely watching the televised chaos from the Capitol he did so much to generate. For someone my age who recalls John Kennedy’s avowal of responsibility after the Bay of Pigs debacle of 1961, this contrast not only compounds the disgraceful farce over the Kennedy Center; it also demonstrates how we can distinguish genuine leadership from feckless irresponsibility. 

One could level a similar set of criticisms against expansive readings of the ballyhooed Decision of 1789. As the first congressional exercise in constitutional interpretation, this was certainly a noteworthy deliberation. But precisely because it was the first such discussion, at the very beginning of the process of creating executive departments, the Decision of 1789 could hardly be conclusive.  

The initial solution adopted in the House of Representatives, largely driven by James Madison, depended on an awkwardly worded motion that simply presumed the power of removal existed without clearly identifying its source. The Senate was unconvinced. Many senators believed removing high officials required the same Senate assent as their appointment. That was the position Alexander Hamilton took in Federalist 77, which he reversed only after a South Carolina representative read his analysis in the House. Ultimately, Vice President John Adams’ tie-breaking vote in the Senate resolved the question. 

Thus, neither the Constitutional Convention nor the First Congress presented a view of executive power as coherent or expansive as the apologists for the UET have been proclaiming. How could they possibly have anticipated the kind of administrative state that later generations created or the ways in which the development of modern societies would place a premium on creating institutions where expertise would be the first criterion of employment? 

There is one final irony to the UET. Given the pervasive “maladministration” that characterizes the Trump presidency, one can argue that the UET has either attained its apotheosis, with the Nazi führerprinzip superceding the norms of republican government, or its reductio ad absurdum, where most presidential decisions are best described as evidence that Americans are living under our first mad king since George III (which is unfair to our last king because his madness arose well after the Revolution). You make the call. 

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