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Over President’s Day weekend, Donald Trump posted, “He who saves his Country does not violate any Law.” This is a quote attributed to Napoleon — you know, the guy who crowned himself emperor. For a long time, the trope went that people who were delusional thought they were Napoleon. No one’s laughing now.
Less incendiary but perhaps more consequential, yesterday Trump signed an executive order that purports to seize control of independent agencies such as the Federal Trade Commission, the Federal Communications Commission, and the Federal Deposit Insurance Corporation. These expert bodies fight monopolies, police bank safety, organize the broadcast industry, and more. They are central to the entire edifice of modern government, built up over the past 140 years, which ensures that the free market does not devolve into an abusive free-for-all.
The new president’s power grab may get clothed in legalistic garb by the highest court in the land, and some academics and advocates will applaud the decision. Very soon, we will be hearing a lot about the “unitary executive theory.”
The framers of the Constitution were vague about what the president could and could not do. They knew that George Washington would be the first, but beyond that, things were a bit fuzzy. Supreme Court Justice Robert Jackson wrote in 1952 that what they intended “must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”
But the framers were clear about one thing: They did not want a monarch. They gave Congress the power of the purse, for example, and spending bills had to start in the House of Representatives — at the time the only federal officials chosen by popular vote. Even though the Constitutional Convention’s proceedings were secret, an official leak informed a local newspaper that “tho’ we cannot, affirmatively tell you what we are doing; we can negatively tell you what we are not doing — we never once thought of a king.”
Over the two centuries since, as we developed into a modern country, the government grew in complexity and importance. Industrial abuses drove political leaders, including Theodore Roosevelt, Woodrow Wilson, and Franklin Roosevelt, to develop the modern state to protect the public interest. Often, Congress created independent bodies whose members would be nominated by the president and confirmed by the Senate, but with fixed terms and other kinds of independence. Presidents and Congress tussled about their roles as the presidency grew in power, especially during wartime, and Congress at times pushed back.
And always, presidents and officials of the executive branch were subject to the rule of law.
After FDR expanded power during the New Deal and World War II, the Republican Congress responded with laws such as the Administrative Procedure Act to ensure that government agency actions would follow rules, be transparent, and have a basis beyond whim.
Some legal theorists argued that this was all a big mistake. They claimed that the Constitution placed all the power of the executive branch in the hands of one person, rule of law be damned. They called this the unitary executive theory, which is a fancy way of saying that a chief executive can rule over the executive branch like a monarch. In other words, every one of its millions of employees serves at the president’s beck and call as though they were caddies at Mar-a-Lago.
This idea draws from the Constitution’s language that “the executive Power shall be vested in a President” who should “take care that the laws [passed by Congress] be faithfully executed.” Many of the cases already steaming toward the Supreme Court will test what this means.
The first, considered this week, will assess whether the White House can fire the independent head of a watchdog agency charged with protecting federal workers. It probably won’t make constitutional news. The justices likely will rule on procedure and avoid the big questions.
But in the cases after that, there will be no avoiding the audacious claim. Trump has tried to fire commissioners with fixed terms from the National Labor Relations Board and other independent bodies. Doing so violates a 1935 case, Humphrey’s Executor v. United States, in which FDR dismissed a reactionary official who insisted on showing up at work even after he had been fired. The Court ruled that experts in independent agencies, whom Congress said should be appointed for a term of years, are protected from the whims of a president.
Yesterday’s executive order goes further than FDR did. It requires independent agencies not just to serve at the pleasure of the president but to submit their work for his approval as well. They would lose budgetary protections, too.
Trump’s power grab extends throughout the executive branch. He has fired inspectors general without informing Congress as required by law, he claims the right to personally direct prosecutions, and more.
Outlandish? Maybe. But this push is the culmination of decades of pressure from conservative organizations and lawyers who have sought a way to dismantle government and curb its power to intervene in markets. Dozens upon dozens of law review articles, Federalist Society panel discussions, and quiet grants from conservative donors have pressed in this direction since at least the 1970s. When the Supreme Court upheld the constitutionality of the independent counsel law in Morrison v. Olson, Justice Antonin Scalia was the sole dissenter — but his views are now so widely accepted on the right that many assume his was the majority opinion.
What will the Supreme Court do? Ominous signs came from the notorious ruling last summer granting ex-presidents wide immunity from accountability to criminal law. That case did not rely on the unitary executive theory, but Chief Justice John Roberts could not help but sing the tune. The president is “the only person who alone composes a branch of government,” he wrote.
Justice Sonia Sotomayor saw the chilling implications of that line of thinking. “In every use of official power,” she warned, “the President is now a king above the law.”
