As most separation of powers/administrative law scholars know, the Roberts Court has consistently applied the unitary executive branch theory (UET) across Democratic and Republican administrations.  That theory maintains, at a minimum, that the President must have the power to remove at will the heads of any federal agencies or commissions that wield substantial executive power.   I think the Roberts Court is wrong about the UET. But if it’s wrong, it’s been consistently wrong, regardless of who the President is.

I bring this up only because a recent New York Times essay, to which I contributed, contains a flatly wrong claim about this issue from Stanford political scientist Adam Bonica.  I will first briefly describe the history of this issue, then address Bonica’s disturbingly incorrect claim.

The Supreme Court started on the path toward endorsing the unitary executive branch theory long before the first Trump administration.   President Obama was in office when the Roberts’ Court first endorsed this conception of strong presidential power in Free Enterprise Fund v. Public Company Oversight Board (2010) (full disclosure:  I filed an amicus brief in that case defending the Sarbanes-Oxley Act on behalf of all former Chairmen of the SEC).  That decision held the structure of the Public Company Accounting Oversight Board unconstitutional because Congress had left the President too little direct or indirect control over the Board’s members. 

During the first Trump administration, the Court then invalidated the structure of the Consumer Financial Protection Bureau because Congress had sought to limit the President’s power to remove the head of the CFPB only on certain limited grounds.   The next major decision in this line, United States v. Arthrex, further empowered the President during the Biden administration.  Indeed, that decision expanded the UET into new terrain by holding that the President also had to have effective control over administrative adjudications.  

President Biden then took a number of actions based on the UET.  Shortly after taking office Biden fired the head of the Social Security Administration, despite statutory protections that insulated his removal from direct presidential control.  He also fired a number of other officials who had long been thought to be independent because they served fixed terms of office.  Indeed, a legal commentator in Slate characterized Biden as “the first unitary executive.”  None of these firings reached the Supreme Court. 

Entering the second Trump administration, what remained against the UET was the 1935 case, Humphrey’s Executor v. United States, which held that Congress could create independent, multi-member agencies, such as the Federal Trade Commission, whose heads the President could not fire at will, but only for “good cause.” But it was widely expected that the Trump administration would challenge that decision and that the Roberts Court would take the next step in its commitment to the UTE by agreeing with the President and overturning Humphrey’s Executor.   

When President Trump put the issue squarely before the Court by firing the heads of various independent agencies, the lower courts held these firings illegal. Those courts are obligated to follow Humphrey’s Executor. In two cases on the emergency docket, the Court has stayed these lower court rulings on procedural grounds.  Technically, the Court has not yet overruled Humphrey’s Executor, but it’s widely recognized that these actions make it virtually inevitable that the Court, unsurprisingly, is going to overrule Humphrey’s Executor.  Indeed, Justice Kagan’s dissent for three Justices asserts that the Court has in effect already overruled Humphrey’s Executor, even before formally interring it.  One can argue about procedural aspects of these stays, but on the substance of the UTE, these are probably the least unexpected decisions on executive power of the current Court. 

Indeed, the most important brake the Court has suggested on the UET has come during Trump’s second term, in statements from individual Justices that the President does not have the power to fire at will the Chairman of the Federal Reserve.  Critics have questioned whether there’s a principled distinction between the Federal Reserve and other agencies, but the conservative Justices have made these statements in direct response to President Trump’s threats to remove Chairman Powell.

Bonica, however, asserts that the Court has been partisanly manipulative and opportunistic in how it applies the UTE.  He levels this charge in extremely strong terms: “If the unitary executive theory were a genuine constitutional principle, its adherents would apply it equally to all presidents, regardless of party. The evidence shows it is a principle of convenience, invoked to amass power and discarded when it might constrain allies.”

To back this up, he offers two pieces of evidence.  First: “This situational approach is most visible in the actions of the theory’s own advocates. When President Biden took office and fired a handful of Trump-appointed holdovers, he was met with a flurry of lawsuits from the very conservatives who champion UET. Suddenly, these activists argued for the sanctity of the statutory tenure protections they otherwise seek to destroy.”

But the positions lawyers take in litigation obviously tells us nothing about whether the Court is applying the UET consistently.  On top of that, Bonica doesn’t tell us (or link to) who the lawyers are he has in mind behind this alleged “flurry of lawsuits” from conservatives.  In poking around a bit, the only suit I’ve come across that fits Bonica’s description is one that Russell Vought brought, in which Stephen Miller’s law firm represented him, when Biden fired Vought from the Naval Academy Board of Visitors.  But it doesn’t take a lot of strategic sense to recognize that Vought brought that suit hoping to lose it as a way of more deeply entrenching the UET.  Vought surely cares more about solidifying that doctrine than he cares about being on the Naval Board of Visitors.  In any event, whatever the motivation for this one suit, it has nothing to do with whether the Roberts Court has applied UET consistently.

Bonica’s second and only other piece of evidence, which he calls “the most telling evidence,” is that Justice Thomas voted against the UET in the Arthrex case, during Biden’s presidency.  But Bonica doesn’t tell readers that Thomas was in dissent, along with the three more liberal Justices.  Nor does Bonica tell readers that the Court upheld the UET claim in that case, during Biden’s presidency, in a particularly expansive opinion endorsing the UET. 

After that, Bonica leaves the UTE behind and shifts to brief discussion of other issues concerning executive power.  He criticizes the Court for not overturning universal injunctions during the Biden administration and presents data on how often the Court has used the emergency docket to uphold or reverse lower courts during the Biden and Trump years.  Jack Goldsmith recently took issue with Bonica’s use of data.  I don’t want to prolong this piece with my own views about the extent to which the Court has or has not been consistent on other executive power issues.  One big test will come with how the Court applies “the major questions doctrine” during the Trump administration.  But the Roberts Court has had a clear commitment to the unitary executive branch theory for many years and it’s been consistent about that – for better or worse.

From the WSJ, which is paywalled:

Five years ago, Georgia’s Republican Secretary of State Brad Raffensperger was banished to the political wilderness. 

Donald Trump blamed the mild-mannered election chief for his narrow 2020 Georgia defeat, branding him a RINO (Republican in Name Only), “incompetent and strange.” Death threats poured in. GOP senators demanded he resign for reaffirming, after recounts and audits, that Trump lost the battleground state.

The attacks stunned Raffensperger, a businessman and devout Christian who came late to public life. One consultant dubbed him “Dead Brad Walking.” 

Yet something unexpected happened on the way to his demise: He not only survived, winning re-election in 2022, but has become a serious contender in Georgia politics.

Now Raffensperger, 70 years old, a multimillionaire construction magnate, is considering a run for higher office next year, likely for governor to replace term-limited GOP Gov. Brian Kemp, or U.S. Senate to challenge Democrat John Ossoff. A May Cygnal poll found Raffensperger slightly ahead of Ossoff in a theoretical matchup, with other declared or potential GOP candidates trailing Ossoff.

https://x.com/RickPildes/status/1954187436021432390

Fix the Court posts an audio recording of Justice Sotomayor speaking at an interview at the University of Zurich in July of 2024. Apparently, Fix the Court just obtained this recording recently. A Justice’s talk at a university is usually a public event, but sometimes these events are done under Chatham House rules, meaning that the remarks are not supposed to be repeated. I don’t know what the context was in this respect for this interview or why the audio has just now become available.

According to the transcript, her comments about term limits for the Court included these remarks:

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can’t be taken away constitutionally — I don’t believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you’ve earned.

So that means that a current court at the moment these term limits exist, those justices will be there for as long as they want, so you might not get the value of term limits in the United States because of that inherent difficulty.

I do not agree that it would be unconstitutional to adopt term limits via a constitutional amendment that would apply to the sitting Justices. But for those who think the Supreme Court would uphold the constitutionality of a statute imposing term limits on the sitting Justices, these remarks should certainly be sobering.

In Common Cause v. Rucho, Chief Justice Roberts pointed to the significant reforms to redistricting that had been taking place in the states, as a way of asserting that the federal courts and constitutional doctrine were not the only avenues to address the issue. As we are now seeing with the prospect of mid-decade redistricting, a state-by-state approach might turn out to be an unstable equilibrium.

If red states like Texas go ahead with mid-decade redistricting, and blue states like CA and NY decide to adopt measures that respond in kind, there will now be questions about what will happen after the 2030 Census and round of redistricting. Will the states with commissions go back to using them or will they attempt to take measures, such as new voter initiatives, to repeal the reforms they had enacted?

This collective action dynamic is what led Congress to pass the Apportionment Act of 1842, which required all states to use single-member districts to elect members of Congress. Before that, some states wanted to use single-member districts, other states wanted to use at-large elections. But “state choice” was an unstable equilibrium. As a partisan matter, states that used single-member districts weakened themselves in Congress compared to those that used at-large elections. If a state using single-member districts had five representatives, it might end up with a 3-2 delegation in partisan terms (say a net of 1 seat for Party A). If a smaller state with only three representatives used at-large elections, it would be likely to have all three represent the same party (so at net of 3 for, say, Party B). So even the first state would be driven to using at-large elections, even if it preferred to use single-member districts.

That’s why Congress imposed a uniform, national requirement. In the redistricting context, such a uniform, national requirement to constrain partisan gerrymandering could have come from the Court or could come from Congress. And absent a nationally uniform requirement, it’s unclear how “free” states will be as a practical matter to choose to constrain partisan gerrymandering. Absent a national solution, we will see how much unraveling of prior state reforms takes place, both in the short term and in the run-up to the 2030 round of redistricting.

Disclosure: I represented Common Cause in Common Cause v. Rucho.

According to some of the most prominent scholars in the field, the answer is yes.

Earlier this year, Nick Stephanopoulos, Eric McGhee, and Chris Warshaw published an essay in the Washington Post which showed that after the 2020 round of redistricting, the net effect of state gerrymanders on the House was relatively low. Their study concluded that the House in 2024 had a 7 seat bias in favor of the Democrats.

This work is based on using the efficiency gap as a measure of partisan gerrymandering, which is also a principal basis that the widely-used Plan Score site uses to assess the degree of gerrymandering in a state map. My sense is that journalists rely heavily on Plan Score for information about gerrymandering.

My own view is that the efficiency gap, while convenient, is not the best measure of gerrymandering. But it is widely used and these authors are well-respected scholars of gerrymandering. I’m opposed to mid-decade redistricting; it’s extremely destabilizing and will only accelerate the redistricting wars. As I noted yesterday, I filed an amicus brief in the Supreme Court a number of years ago urging the Court to bar the practice except when done pursuant to judicial order or, possibly, extraordinary circumstances. I flagged this study when it first came out and in light of current issues, I thought it worth noting again.

The last time Texas engaged in mid-decade re-redistricting, back in 2006, I filed an amicus brief in the Supreme Court for myself, Burt Neuborne, and Sam Issacharoff. Our brief urged the Court to hold that states have no power under the Elections Clause to engage in mid-decade redistricting absent court order (or possibly extraordinary circumstances).

We argued that if states were permitted to do so, it would likely trigger a retaliatory set of responses in other states:

“Moreover, were mid-decade redistricting to be permitted, the political parties would inevitably engage in retaliatory re-redistricting — particularly when partisan control of the House is closely divided. In the dormant commerce clause context, this Court recognized long ago that the appropriate means to address discriminatory state commercial laws was not for states to enact retaliatory discriminatory laws of their own; instead, this Court declares such laws unconstitutional, lest a downward spiral of retaliation, in which national prosperity is drained, ensue. See C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390 (1994) (condemning “local economic protectionism, laws that would excite those jealousies and retaliatory measures that the Constitution was de- signed to prevent. See THE FEDERALIST NO. 22 143-145 (C. Rossiter ed. 1961) (A. Hamilton); James Madison, Vices of the Political System of the United States, in 2 WRITINGS OF JAMES MADISON 362-363 (G. Hunt ed. 1901).”). The Court should instead stop this cycle in its inception by recognizing that the Constitution does not authorize states to engage in mid-decade redistricting, at least absent judicial compulsion or extraordinary circumstance.”

We also pointed out that there was no history and practice of mid-decade redistricting in the 20th century and that absent any judicial constraints, but was emerging in this era for specific reasons:

“No constitutional compulsion — indeed, no legal compulsion of any sort — exists for state legislatures to engage in redistricting during the decade as partisan political prospects wax and wane in particular states. Indeed, nothing in our historical experience compels this extraordinary assumption of power by the state legislatures. In the 20th century, there had been no practice of mid-decade congressional redistricting of which we are aware before mid-decade redistricting efforts suddenly erupted this decade. Rather, the emergence of this practice results from a combination of (1) closely balanced partisan control of the House and (2) technological breakthroughs in election data bases and computer technology that enable “perfecting” the self-interested creation of overwhelmingly safe districts. The partisan margin of power in the House has hung in the balance for a more sustained period than at any time over the past 100 years; when partisan control was last divided as closely, numerous state legislative schemes sprung up to manipulate congressional elections.²⁰ National legislation and constitutional law now prohibit most of the offending historical practices, such as legislative manipulations of suffrage rules and vote fraud. But given the allure of political power, efforts to invent new practices not yet prohibited — such as mid-decade redistricting — will inevitably arise again when partisan control of the House is at stake.”
 

Rather than arguing for this position under the Equal Protection Clause, we argued the Court should recognize the Elections Clause as an enumerated power. Just as the Court had been enforcing limits on Congress’ enumerated powers since the 1990s, we argued the Court should enforce limits on the enumerated power state legislatures have to draw congressional districts.

Interesting new study here. Abstract:

In seven studies, we investigated how reporting partial vote counts influences perceptions of election legitimacy. Beliefs in election fraud, as in the 2020 U.S. presidential election, may be fueled by the cumulative redundancy bias (CRB), which skews perceptions toward early leaders in partial vote counts. In line with this prediction, participants (Prolific adult participants from the United States and the United Kingdom) consistently rated early leaders more favorably and were more likely to suspect fraud when the eventual winner gained a late lead. This effect persisted across simulated elections (Studies 1–3) and real-world vote counts from the 2020 election in Georgia (Study 4). It is important to note that fraud suspicions already arose before the count was completed (Study 5) and persisted despite explanatory interventions (Study 6). Partisanship did not eliminate the CRB’s influence on fraud beliefs (Study 7). Our findings suggest that the sequential reporting of vote counts may amplify false perceptions of election fraud and could be mitigated by revising how results are communicated.

The ACLU, the League of Women Voters, and other groups have filed an amicus brief in support of the standing claim raised by candidate for Congress Michael Bost in Bost v. Illinois State Bd of Elections. Bost is seeking to argue that Illinois is violating federal law by permitting absentee ballots to be counted in federal elections if postmarked by Election Day, even if they are received some number of days after Election Day. In an earlier blog post, I said the Court had been right to take this case, given the importance of the standing issue.

The ACLU argues that Bost should have standing, even though it strongly disagrees with his position on the merits. Interestingly, the ACLU argues that a candidate like Bost should have standing based on the “diversion-of-resources” theory of standing, which organizations (like the ACLU and LWV) frequently rely on for standing. The ACLU does not rest its standing argument on the idea that candidates have “competitive standing” to challenge state election laws.

Here’s an excerpt from the amicus brief explaining why candidates, like Bost, should have standing in contexts like this challenge to Illinois election law:

Equally to the point, it is not merely
Representative Bost’s choice to monitor incoming mail
ballots during the post-Election Day period, as the
court of appeals wrongly suggested. It would be
political malpractice not to do so. Candidates and civic
groups working on elections have to conduct their
work in response to the legal framework governing the
election in question. Electoral regulations, no less
than business regulations, “‘may be likely’ to cause
injuries” to parties other than those who are directly
compelled to action by forcing them to spend resources
and thus incur potential economic harms. Diamond
Alt. Energy, 145 S. Ct. at 2136 (citing AHM, 602 U.S.
at 384). Here, Illinois’s regulation of the mail ballot
process, predictably and as a matter of “commonsense
economic realit[y],” “may cause downstream or
upstream economic injuries” to candidates, voters,
voter registration groups, or political parties. Id.
Allowing mail ballots to arrive up to fourteen days
after Election Day necessarily means those who must
build their efforts around the operative election rules,
like campaigns and nonpartisan civic groups whose
core activities include election-related work, will
continue their election-monitoring, ballot-chase, and
other operations, with all the economic effort that
entails….

Candidate standing to challenge election rules
that effectively force their campaigns to incur
expenditures, draining resources from other
campaign functions, fits comfortably within this
Court’s long line of cases recognizing standing based
on economic injuries, including by resource diversion.
If a challenged electoral rule tangibly affects the way
a candidate campaigns, by altering in specific,
articulable ways how they spend their limited staff or
volunteer time, money, and resources, it can result in
a concrete injury.

I’ve been reading Lawless Republic: The Rise of Cicero and the Decline of Rome, by Josiah Osgood. I came across this striking passage on campaign finance issues in elections in 66 BCE, which shows that some of the same issues that affect campaign finance issues today have been around for more than 2,000 years.

As you can see, the Romans struggled over how to define the law between legitimate campaign finance activity and bribery. They also worried that defining bribery too expansively would lead to the weaponization of campaign finance laws. Plus ça change…:

This is from the WSJ, which is paywalled. To put this in a broader perspective, the combined “favorability” of both parties is -41% (Rs at -11%, Ds at -30%), which is the worst combined ratings for the two parties since this poll began in 1990.

This is consistent with the general, precipitous decline in support for the traditionally dominant center-right and center-left parties throughout Europe. I have a good deal to say about that in the 2025 John S. Sullivan Lecture I delivered at Capital University, titled The Decline of Political Authority:  Legal and Political Challenges in Western Democracies, 2015-2025. I’ll be posting that soon.

From the WSJ article:

The Democratic Party’s image has eroded to its lowest point in more than three decades, according to a new Wall Street Journal poll, with voters seeing Republicans as better at handling most issues that decide elections.

The new survey finds that 63% of voters hold an unfavorable view of the Democratic Party—the highest share in Journal polls dating to 1990 and 30 percentage points higher than the 33% who hold a favorable view.

Democrats have been hoping that a voter backlash against the president will be powerful enough to restore their majority in the House in next year’s midterm elections, much as it did during Trump’s first term. But the Journal poll shows that the party hasn’t yet accomplished a needed first step in that plan: persuading voters they can do a better job than Trump’s party….

“The Democratic brand is so bad that they don’t have the credibility to be a critic of Trump or the Republican Party,” said John Anzalone, a Democratic pollster who worked on the Journal survey with Republican Tony Fabrizio. “Until they reconnect with real voters and working people on who they’re for and what their economic message is, they’re going to have problems.”

The only issues on which voters prefer congressional Democrats to Republicans, among the 10 tested in the Journal survey, are healthcare and vaccine policy.

“The Democratic brand is so bad that they don’t have the credibility to be a critic of Trump or the Republican Party,” said John Anzalone, a Democratic pollster who worked on the Journal survey with Republican Tony Fabrizio. “Until they reconnect with real voters and working people on who they’re for and what their economic message is, they’re going to have problems.”…

Because anger is a stronger motivator to vote than satisfaction, the angry town-hall gatherings suggested to many Democrats that the next election could look something like Trump’s first midterm, in 2018, when Republicans lost at least 40 House seats and their majority in the chamber, restoring Democratic Rep. Nancy Pelosi to the speaker’s office. …

But the new Journal survey shows that the political environment today looks different now than in Trump’s first term.

At about this point in 2017, more voters called themselves Democrats than Republicans by 6 percentage points in Journal polling. The Democratic tilt meant that many Republicans, in a sense, were running uphill even before they started, depending on the makeup of their House district….

Now, more voters identify as Republicans than as Democrats, a significant change in the structure of the electorate—and a rarity in politics. Republicans last year built their first durable lead in more than three decades in party identification, and they have maintained that lead today. In the new Journal survey, more voters identify as Republicans than as Democrats by 1 percentage point, and the GOP led by 4 points in the April poll.

It’s been nearly a month since the Court announced it would hear re-argument in this case and would issue a supplemental order with additional questions to be briefed. That’s a surprisingly long delay.

The Court rarely orders cases to be re-argued, particularly outside the context in which the Court has only eight Justices at the time the case is argued initially, is internally divided 4-4, and orders re-argument once a ninth Justice is on board (those re-arguments typically happen within the same Term in which the case was first heard). In Citizens United, the Court’s re-argument order included the additional questions to be argued. That order came down at the end of June of that Term. In Kiobel v. Royal Dutch Petroleum Co., the Court ordered re-argument six days after the original argument and specified the additional issue to be briefed.

To speculate, perhaps the Court is going to introduce several questions to be argued and the Justices are going back and forth on how exactly to frame those various questions. I’ve also wondered about whether one or more Justices might be writing a dissent from the re-argument order. I’m not sure if that’s ever happened. I’ve also thought about whether the Court could be holding the re-argument order until it gets the cert. papers in the Turtle Mountain Band case on whether Sec. 2 of the VRA creates a private right of action, but that doesn’t seem too likely. But it’s a bit mysterious as to why the re-argument order has not come down yet.

This WSJ article confirms what I have been saying for a while now (see also here), that small donors tend to fuel the more ideological wings of the parties. That’s all the more true for out of state (or out of district) small donors. There’s nothing wrong with that. The policy issue is whether public financing of elections should be based on the preferences of small donors, such as in proposals to provide public matching funds in proportion to the amount of small donations a candidate raises.

From the WSJ piece:

The contrast between the two women highlights how Democratic small-dollar donors, an increasingly important group as more fundraising moves online, often are biased in their support of ideological favorites rather than focusing on just those in competitive races.

Among the 10 incumbent Democrats who raised the most from individual donors this year, six are members of the Congressional Progressive Caucus, a Wall Street Journal analysis of campaign finance disclosures shows. Three of the top four are progressives, with the exception of House Minority Leader Hakeem Jeffries (D., N.Y.).

The financial strength among progressives presents a challenge to party leaders trying to nudge the Democratic message closer to the middle, where they might stand a better chance of winning over independent voters who decide close elections….

John Lapp, executive director of the Democratic Congressional Campaign Committee in 2006 when the party won control of the House, said it is often the case that “more provocative stars in the Democratic Party” raise the most money….

Like AOC, Mamdani is a study in the power of small-dollar donations. While his average contribution has been the smallest of any of the mayoral candidates, according to New York City Campaign Finance Board data, he has still managed to be competitive in fundraising because he has had so many more donors than others.

In a sign of Mamdani’s growing national prominence among progressives, roughly half of the dollars he raised during the period came from outside New York City. His campaign had roughly $2.5 million on hand as of July 11….

The fundraising success for progressive candidates comes as traditional depositories for dollars in the party are struggling with their fundraising.

The Republican National Committee, benefiting from GOP control of Washington, had almost $81 million in cash reserves as it started July, compared with $15 million for the Democratic National Committee. Overall, the DNC raised roughly 20% less than it did in the first six months of 2021, a comparable period in the election cycle, and has in the bank a quarter of what it did four years ago….

Some Democratic committees are working to try to keep small-dollar donors focused on the races that matter the most.