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.