Trump is claiming total executive power that would eclipse the legislative “co-equal” branch of government.
In the weeks since the presidential election, president-elect Donald Trump and his allies have made a series of moves that indicate their intent to dangerously consolidate executive power under the controversial “unitary executive” theory of the Constitution.
During the presidential campaign, Trump posted a video on Truth Social that referred to his second administration as a “unified Reich,” invoking Adolph Hitler’s Third Reich in Nazi Germany. As president-elect, Trump’s cabinet selections have corroborated his campaign pledge to be a dictator on day one.
With the backdrop of the Supreme Court’s decision granting him absolute immunity from criminal prosecution for his core “official” functions, and the 920-page “Project 2025” right-wing blueprint for an autocratic government, Trump is positioning himself to change the balance of power by increasing the president’s authority over all aspects of the executive branch — and thereby becoming a “unitary executive.”
The framers of the Constitution created a tripartite system of government with three overlapping and co-equal branches to check and balance each other. But the unitary executive paradigm would elevate the executive above the legislative branch. It says that the executive branch is “unitary” — that is, the president has complete command and control over it.
The Roots of the “Unitary Executive” Theory
The unitary executive theory has its roots in the “imperial presidency” during the Civil War and reached its zenith during the Nixon administration. In 1862, President Abraham Lincoln suspended the writ of habeas corpus without congressional authorization. President Richard Nixon, who ultimately resigned for his lawbreaking during the Watergate scandal, famously declared, “When the president does it … that means that it is not illegal.”
In 1988, in Morrison v. Olson, the Supreme Court upheld a provision of the 1978 Ethics in Government Act — passed in the wake of Watergate — that said a special prosecutor could be removed by the president only for good cause. This was an implicit rejection of the unitary executive theory. Antonin Scalia wrote a solitary dissent in which he maintained that the Constitution’s Article II Vesting Clause (which says, “The executive power shall be vested in a President of the United States”) “does not mean some of the executive power, but all of the executive power.”
During the George W. Bush administration, John Yoo, one of the primary authors of the “torture memos,” elevated the unitary executive model to a central tenet of the Bush presidency. Yoo told New Yorker writer Jane Mayer that Congress couldn’t prevent the president from ordering torture. When asked if any law prohibited the president from crushing the testicles of a child during interrogation of their parent, Yoo responded, “I think it depends on why the president thinks he needs to do that.” But torture is absolutely prohibited by U.S. and international law.
Seeking to empower the president to override the will of Congress, Yoo inserted the phrase “unitary executive” into Bush’s signing statements attached to legislation, in which the president reserved the right to disobey any parts of congressional statutes with which he disagreed.
Samuel Alito, while serving as Deputy Assistant Attorney General in the Reagan administration, supported the unitary executive theory. He stated at his Supreme Court confirmation hearing in 2006: “The concept of unitary Executive doesn’t have to do with the scope of Executive power. It has to do with who within the Executive branch controls the exercise of Executive power, and the theory is the Constitution says the Executive power is conferred on the President.”
William Barr, Trump’s attorney general in his first administration, subscribed to the unitary executive theory. In 2018, before Trump appointed him, Barr wrote a memo criticizing special counsel Robert Mueller’s investigation of Trump. In it, Barr maintained that the president has total control over the executive branch. “Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch: As such, he is the sole repository of all executive powers conferred by the Constitution.”
Supreme Court members Neil Gorsuch and Brett Kavanaugh both favor the unitary executive model. “The regrettable fact is that the judiciary at the moment seems inclined to recognize that the president does have this kind of authority,” Peter L. Strauss, emeritus professor of law at Columbia University, told The New York Times. “They are clawing away agency independence in ways that I find quite unfortunate and disrespectful of congressional choice.”
Proponents of the unitary executive say that Article II establishes a “hierarchical, unified executive department under the direct control of the President” who “alone possesses all of the executive power and … therefore can direct, control, and supervise inferior officers or agencies who seek to exercise discretionary executive power.”
Project 2025 Is Anchored in the Unitary Executive Scheme
Project 2025, the right wing’s roadmap to an imperial presidency, is anchored in the unitary executive scheme. “This radical governing philosophy, which contravenes the traditional separation of powers, vests presidents with almost complete control over the federal bureaucracy, including congressionally designated independent agencies or the DOJ and the FBI,” according to a report issued in October by Center for American Progress. “The unitary executive theory is designed to sharply diminish Congress’ imperative role to act as a check and balance on the executive branch with tools such as setting up independent agencies to make expert decisions and by limiting presidents’ ability to fire career civil servants for purely political purposes.”
As detailed in Project 2025, Trump would circumvent Congress by taking complete control of all administrative agencies that protect our health, safety, food, water, climate and labor rights. The Supreme Court ruled in June that a federal agency doesn’t have the last word on protecting these rights. When a statute is ambiguous, an agency must now defer to courts (many of which are staffed by judges appointed by Trump) instead of following interpretations of agency experts.
A plan set forth in Project 2025 calls for Trump’s second administration to reinstitute one of his previous executive orders, known as Schedule F, which Joe Biden had eliminated. This would reclassify 50,000 of the 2 million merit-based civil service employees as political appointees who serve at the pleasure of the president with no civil service protections.
Project 2025 contains several ways in which Trump could undermine the constitutional checks and balances. They include:
– Curtailing the independence of independent agencies;
– Weaponizing the Department of Justice to serve Trump’s political agenda;
– Replacing civil servants with political supporters;
– Impounding funds Congress has appropriated and using them for other purposes;
– Neutralizing the press and independent media;
– Misapplying the Insurrection Act to suppress protests and deport undocumented immigrants;
– Misusing the recess appointment process to confirm executive branch nominees without Senate approval; and
– Deconstructing the administrative state to help corporations maximize profits.
Trump’s Cabinet Nominees Will Be Loyal Foot Soldiers in His Imperial Presidency
When Project 2025 became politically unpopular during the presidential campaign, Trump tried to disassociate himself from it. In a July 5 post on Truth Social, he wrote, “I know nothing about Project 2025.” But now that he is president-elect, Trump’s denials ring hollow. Several of his cabinet nominees are authors and influencers of Project 2025.
Trump has once again tapped Russell Vought, president of the Center for Renewing America, as director of the Office of Management and Budget. Vought oversaw Project 2025’s section on expanding executive power.
Brendan Carr, who wrote Project 2025’s chapter on the Federal Communications Commission, is Trump’s pick to chair the FCC. Carr has pledged to retaliate against media organizations that criticized Trump during the election campaign.
Tom Homan will be Trump’s new “border czar.” Immigration hawk Stephen Miller will serve as deputy chief of policy. John Ratcliffe is Trump’s choice for CIA Director. And Peter Hoekstra will be ambassador to Canada. All are associated with Project 2025.
The Supreme Court’s Presidential Immunity Decision Effectively Places Trump Above the Law
In July, a six-member reactionary supermajority of the Supreme Court held in Trump v. United States that presidents have absolute immunity from criminal prosecution for core official acts, and presumptive immunity for all other official acts. “Unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties,” Chief Justice John Roberts wrote for the majority.
“In every use of official power, the President is now a king above the law,” Sonia Sotomayor wrote in dissent. “The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.” The immunity the court established now “lies about like a loaded weapon” for any president to use for his own political gain or financial interests, with the knowledge that he is inoculated from criminal liability.
Ketanji Brown Jackson, in her separate dissent, also warned that presidents would become kings under the court’s ruling. “The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm,” she wrote. “I fear that they are wrong.” The court has declared for the first time that “the most powerful official in the United States can . . . become a law unto himself.”
As a result of Trump v. U.S., Trump’s election victory, and the Justice Department’s policy against prosecuting sitting presidents, Trump’s criminal cases — comprising 91 charges — are evaporating.
Congress Is Poised to Pass a Bill to Allow Trump to Punish His Political Opponents
Congress is poised to pass legislation that would give Trump broad authority to punish his political opponents. Dubbed the “nonprofit killer” bill, it would empower the Secretary of the Treasury to designate any nonprofit group as a “terrorist supporting organization” and revoke its tax-exempt status, which would effectively shut it down with no due process.
The House of Representatives has already passed H.R. 9495 — the Stop Terror-Financing and Tax Penalties on American Hostages Act — and it will likely be re-introduced and passed by that chamber again in the next congressional term. When the GOP takes control of the Senate, it will probably pass the bill as well.
Aimed primarily at organizations that support the Palestinian struggle, the legislation could be utilized to shutter any group that opposes Trump’s policies. “This bill is not about terrorism — it’s about giving Donald Trump unlimited authority to label his opponents as terrorists,” Rep. Lloyd Doggett, D-Texas, said on MSNBC.
If enacted, the legislation would dovetail with Trump’s Project 2025-inspired plan to remake the U.S. government in his authoritarian image. If this comes to pass, Trump will be the unitary executive on steroids.
Copyright Truthout.
