The Chimpanzee Politics of Trump's "Unitary Executive Theory," Part Two

 FDR, Nixon, Ford, and Reagan

In the 1930s, Franklin Roosevelt continued the expansion of federal administrative power that the Progressives had begun, but he also tried aggressively to bring that administrative apparatus under the control of a unitary executive.  For example, when he saw that a member of the Federal Trade Commission--William Humphrey--was impeding his New Deal policies, he repeatedly asked him to resign.  When Humphrey refused, Roosevelt fired him, even though he was serving a fixed term set by Congress with the legislative stipulation that he could be dismissed only for "inefficiency, neglect of duty, or malfeasance in office."  Roosevelt fired him for purely political reasons.

Roosevelt also proposed to the Congress a plan for reorganizing the executive branch to concentrate control in the office of the president.  The plan included abolishing the Civil Service Commission and moving the independent regulatory commissions into the regular executive departments.

Both the Supreme Court and the Congress rebuffed Roosevelt's efforts to strengthen the unitary executive.  In Humphrey's Executor v. U.S. (1935), the Court ruled that Roosevelt's firing of Humphrey was illegal because officials of quasi-legislative or quasi-judicial agencies established by Congress could only be removed for the nonpartisan reasons set by Congress.  (Recently, Trump's Acting Solicitor General Sarah Harris has notified Congress that the Department of Justice will ask the Supreme Court to overturn Humphrey's Executor as an unconstitutional constraint on the President's executive power to fire anyone in the executive branch.)

The Congress rejected Roosevelt's plan for reorganizing the executive branch.  The Congress did pass a compromise plan that gave the President only limited authority to reorganize the executive branch on his own.

Another attempt to expand presidential power over the executive branch was initiated by Richard Nixon.  He entered the White House in 1969 as a conservative Republican facing a Congress controlled by the liberal Democrats and surrounded by administrative institutions that had been recently expanded by Lyndon Johnson's Great Society programs.  The Democrats controlled both Houses of Congress throughout Nixon's two terms.  He resented the administrative state as an impediment to his presidential leadership.  He insisted: "I don't believe that civil service is a good thing for the country."  He tried to push his political loyalists deep into the federal bureaucracy.  He impounded funds appropriated by Congress when this congressional spending was contrary to his own policies.  When he won reelection by a landslide in 1972, he argued that this showed a popular mandate for the expansion of his presidential power over the bureaucracy.  In trying to establish what Richard Nathan (1975) called an "Administrative Presidency," Nixon was foreshadowing what Trump is trying to do right now.

But all of this was brought to an end by the Watergate scandal and by the exposure of Nixon's attempts to cover-up the White House's involvement in the Watergate burglary, the exposure coming from a secret informant in the executive branch (called "Deep Throat") who passed information to reporters for the Washington Post.  Nixon was forced to resign in 1974 to avoid being impeached by Congress.  Many of the people involved in the Watergate burglary and cover-up were sent to prison.

Congressional revulsion with the Watergate scandal and everything surrounding it spurred Congress into enacting a long series of laws over the next fifteen years designed to constrain administrative presidentialism and increase congressional oversight of the executive branch.  This included laws establishing an Inspector General in many executive departments and agencies.  The Inspector General was granted investigatory powers to look for waste, fraud, and abuse of power, with responsibilities to report to Congress regularly.  (On January 24 of this year, Trump fired 17 IGs by email in violation of the legal requirement that the president give Congress a 30 day advance notice.)

The Congress also passed laws giving protection to whistleblowers, so that civil servants can alert Congress to wrongdoing without fear of being punished by their supervisors.

The Ethics in Government Act of 1978 allowed for the creation of independent prosecutors to investigate and prosecute abuses of executive power.

Coming in the wake of the Watergate scandal, these new congressional restraints on executive power provoked the elaboration of a unitary theory of the executive, beginning in the administration of Gerald Ford and continuing in Ronald Reagan's administration.  Ford felt particularly vulnerable because he came into office after Nixon's resignation without ever having run for the presidency, so he could not claim the authority of having won a popular election.  His only line of defense was to appeal to the power of the presidency as established in Article II of the Constitution to be separated from the legislative and judicial powers.  Ford's advisors--such as Dick Cheney, Donald Rumsfeld, and Antonin Scalia--urged him to interpret Article II as a broad grant of power to the presidency that could resist congressional interference in the Executive Branch (Shane 2006).

Scalia had been nominated by Nixon to be Assistant Attorney General for the Office of Legal Counsel.  He was nominated again by Ford and confirmed shortly after Ford took office.  One of his first acts was to advise Ford to veto some amendments to the Freedom of Information Act because they would infringe the power of the President to protect the secrecy of classified information in the intelligence agencies and the FBI.  Congress overrode the veto by a vote of 371 to 31 in the House and 65 to 27 in the Senate.  This was one of many examples of the Congress's aggressive attacks on the prerogatives of the President.  Scalia repeatedly testified before Congress defending Ford's invocation of executive privilege in withholding documents from Congress.

This battle between Congress and the President was renewed during Reagan's two terms.  When congressional Democrats used their power to impede Reagan's agenda, Republican legal thinkers began looking for ways to interpret the Constitution as giving Reagan the power as president to achieve his goals without congressional approval.  They developed the unitary executive theory to support the claim that Article II of the Constitution gave the President the exclusive power over the Executive Branch that could not be constrained by Congress.

This became one of the ideas advanced by the conservative legal movement that emerged during Reagan's presidency as led by the Federalist Society, which was founded in 1982.  Scalia was one of the founding leaders of the Federalist Society.  His career as a federal judge began when Reagan appointed him to the U.S. Court of Appeals for the D.C. Circuit in 1982.  Then, in 1986, Reagan appointed Scalia to the Supreme Court.  Two years later, he wrote his dissenting opinion in Morrison v. Olson, which became the classic statement of the unitary executive theory.

Morrison v. Olson

The case of Morrison v. Olson (1988) presents the question of the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978.  When this law was passed, the Democrats controlled both Houses of Congress and the Presidency (Carter).  The purpose of the law was to allow for the appointment of special prosecutors who would be independent of the President in investigating and prosecuting high-ranking government officials for violations of federal criminal laws, which could include the President himself.  

This law was passed to prevent something like President Nixon's "Saturday Night Massacre" of October 20, 1973.  Over this one day, Nixon ordered Attorney General Elliot Richardson to fire Watergate Special Prosecutor Archibald Cox, but Richardson refused and resigned immediately.  Nixon then ordered Assistant Attorney General William Ruckelshaus to fire Cox.  But Ruckelshaus also refused and resigned.  Finally, Nixon issued his order to the third ranking person in the Department of Justice--Solicitor General Robert Bork--who carried out the order and did not resign.  The public outcry against this made it the turning point in the Watergate scandal.  The impeachment process began ten days later.  Leon Jaworski was appointed as the new Special Prosecutor on November 1.  Nine months later, Nixon was forced to resign on August 8, 1974.

As required by the Ethics in Government Act, whenever the Attorney General receives information about the possibility that a high government official has violated a Federal criminal law, he must investigate this and report his findings to a special court called the Special Division, which consists of three circuit court judges or justices appointed by the Chief Justice of the United States.  If the Attorney General determines that there are "no reasonable grounds" to believe that further investigation is warranted, then the Special Division has no power to appoint an independent counsel.  But if the Attorney General decides that there are "reasonable grounds" for an investigation, then he must apply to the Special Division for an appointment of an independent counsel; and the Special Division must then appoint an appropriate person as the independent counsel.

An independent counsel can be removed from office either by impeachment and conviction by Congress or by the Attorney General but "only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties."

The Ethics in Government Act also provides for congressional oversight of the independent counsel.  The Act gives certain congressional committee members the power to request that the Attorney General apply for the appointment of an independent counsel, but the Attorney General can turn down this request if he determines that "there are no reasonable grounds to believe that further investigation or prosecution is warranted."  Once an independent counsel is appointed, the "appropriate committees of Congress" are given oversight jurisdiction over the official conduct of the independent counsel, who is required to cooperate with Congress in the exercise of his jurisdiction.

The case of Morrison v. Olson illustrates how this Act works in practice.  In 1982, two Subcommittees of the House of Representatives issued subpoenas directing the Environmental Protection Agency to produce certain documents related to the enforcement of the "Superfund Law."  Acting on the advice of the Department of Justice, President Reagan ordered the Administrator of the EPA to invoke executive privilege to withhold certain documents.  Eventually, the administration agreed to give the House Subcommittees limited access to the documents.

In 1983, the House Judiciary Committee began an investigation into the role of the Department of Justice in this controversy over the EPA documents.  In 1985, the majority members (Democrats) of the Judiciary Committee published a report on the investigation, which included the charge that Theodore Olson, the Assistant Attorney General for the Office of Legal Counsel, had given false and misleading testimony under oath to Congress, which is a federal crime.  This report was sent to the Attorney General (Edwin Meese) with a request that he seek the appointment of an independent counsel to investigate charges against Olson and two others in the Department of Justice.  The Attorney General decided to ask for that appointment.  In 1986, the Special Division appointed Alexia Morrison as the independent counsel.

In 1987, Morrison caused a grand jury to issue and serve subpoenas on Olson and the other two being charged.  Olson and the other two moved in Federal District Court to quash the subpoenas, claiming that the Act's independent counsel provisions were unconstitutional and therefore that Morrison had no authority to proceed.  The Federal District Court upheld the Act's constitutionality.  But the Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Constitution, Art. II, sec. 2, cl. 2; the limitations of Art. III; and the principle of separation of powers by interfering with the President's authority under Art. II.

In an 7-1 decision, the Supreme Court upheld the constitutionality of the Act, with Chief Justice William Rehnquist writing the opinion of the Court.  Justice Kennedy did not take part in the case.

The majority gave three reasons for their decision.  First, the Act does not violate the Appointments Clause in vesting the appointment of independent counsel in the Special Division, because Olson and the other two being charged are "inferior" officers for the purposes of the Clause, which states that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Second, the powers vested in the Special Division do not violate Article III, because the power to appoint independent counsel derives from the Appointments Clause, which is a source of authority for judicial action that is independent of Article III.

Third, the Act does not violate separation of powers by improperly interfering with the functions of the Executive Branch, because while the legislative, executive, and judicial powers are separated, they cannot be totally separate and distinct from one another--checks and balances require "a partial mixture of powers" (as Madison explained in Federalist Number 47).

Scalia's Dissent

Remarkably, Scalia was the only dissenter in this case.  His dissent was also remarkable because he was disagreeing with Rehnquist despite the fact that Rehnquist and Scalia agreed in their conservative ideology and their conservative jurisprudence of originalism.  

Scalia's dissent proved remarkable in another way--in that it became the most influential statement of the theory of the unitary presidency, so influential that in recent years, the conservative justices on the Roberts Court have adopted his arguments, to the point that some observers of the Court are predicting that the Court will appeal to Scalia's theory of the unitary presidency in upholding Trump's dictatorial view of his presidential powers.

But I see Scalia's dissenting opinion in Morrison as clear evidence that Scalia was a spurious originalist:  despite his insistence that he always followed the original meaning of the law--both in the Constitution and in statutory law--his dissenting opinion ignores the original meaning of the constitutional text, and he rewrites the text by adding his own words, so that it appears to support his ideological commitment to the unitary presidency.

This is evident in his primary argument about the meaning of Article II, sec. 1, cl. 1, of the Constitution: "The executive Power shall be vested in a President of the United States."  Scalia insists: "this does not mean some of the executive power, but all of the executive power," and therefore the President must have complete control over the entire Executive Branch, and neither the Congress nor the courts can ever exercise any kind of executive power.  

The powers of an independent prosecutor are clearly executive powers, and therefore the President must have total control over the appointment and removal of an independent prosecutor.  Consequently, the Ethics in Government Act is unconstitutional in insulating an independent prosecutor from the power of the President.  (By implication, then, Scalia was arguing that Nixon's ordering the firing of Cox as Special Prosecutor was a constitutional exercise of his presidential power over the Executive Branch.)

All of this depends on Scalia's claim that the vesting of the executive power in the President means "all of the executive power."  He repeats this five times in his opinion, and in three of those, he italicizes the word all (705, 709, 715, 729, 734).  But notice that the word all does not appear in the executive vesting clause: "The executive Power shall be vested in a President of the United States."

As some constitutional commentators have noted, the Constitution uses the word "all" eleven times to denote exclusivity or indefeasibility (Shugerman 2022).  For example: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives" (Art. I, sec. 1).  It also uses the words "exclusive" (2 times), "sole" (2 times), and "alone" (1 time) to denote exclusivity or indefeasibility.  For example: "The House of Representatives . . . shall have the sole Power of Impeachment" (Art. I, sec. 2, cl. 5).

Clearly then, if the constitutional framers had wanted to vest the executive power exclusively or indefeasibly in the President, they would have used one of these words.  But they did not.  Scalia is silent about this.

He is also silent about the Constitution's grant of the supreme powers over the national government to the Congress.  The Congress is given various enumerated powers that include some executive powers that had belonged to the British monarch such as the power to declare war (Art. I, sec. 8).  But the Congress is also given the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (Art. I, sec. 8, cl. 18).  Notice what this means:  Congress has the power to make all the laws for the execution of all the powers vested in the government of the United States.  So the execution of all the powers of every department or officer in the Executive Branch will depend upon congressional legislation.  For example, the existence of the Department of Justice and its officers will be determined by congressional legislation.

That this congressional power over the Executive Branch includes the legislative procedures for appointing executive officers is made clear by the Appointments Clause:  

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Art. II, sec. 2, cl. 2.

In the preceding clause, the Constitution stipulates that the President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."  So the Constitution distinguishes between "principal officers," who are nominated by the President and confirmed by the Senate, and "inferior officers," whose appointment is vested by Congress in the President alone, in the courts, or in the Heads of Departments.  Distinguishing between the "principal officers" and the "inferior officers" is mostly left up to the Congress.  Therefore, in the Ethics in Government Act, the Congress exercised its constitutional power to vest the appointment of an independent prosecutor as an inferior officer in the Special Division as a court of law.

This supports Rehnquist in his only comment on Scalia's dissenting opinion.  "The dissent says that the language of Article II vesting the executive power of the United States in the President requires that every officer of the United States exercising any part of that power must serve at the pleasure of the President and be removable by him at will."  But this "depends upon an extrapolation from general constitutional language which we think is more than the text will bear."  So, Scalia is not really a textualist after all.  Because the text of the Constitution--particularly, the Appointments Clause--clearly gives to Congress the power to limit and regulate the removal of inferior officers by such laws "as they think proper" (689-90).

But despite this clear language of the constitutional text that supports the constitutionality of the Ethics in Government Act, Scalia insisted that the Act was unconstitutional because it violated the constitutional principle of separation of powers.  Now, the words "separation of powers" never appear in the text of the Constitution.  Nevertheless, the mere fact that the Constitution begins with the Legislative Article I, the Executive Article II, and the Judicial Article III suggests the separation of these three powers.  And yet Scalia is clearly wrong in assuming that this requires a complete and absolute separation because the Constitution stipulates some mixing of the three powers.  For example, the President's power to veto legislation passed by Congress is a legislative power.  And the Congress controls the Executive Branch by legislatively creating and regulating most of the executive offices and departments.

To prove that the constitutional separation of powers really does require a complete and absolute separation of the three powers, Scalia begins his opinion by quoting a passage from the Massachusetts Constitution of 1780:

In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Scala then cites James Madison's Federalist Number 47 as endorsing this "political truth" of the separation of powers as necessary for securing liberty.  Scalia does not tell his reader, however, that just after quoting this passage from the Massachusetts Constitution about separation of powers, Madison remarks: "In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted" (Hamilton, Madison, and Jay 1961: 327-28).  Madison saw this as confirming what Montesquieu and other proponents of the separation of powers have always understood--that checks and balances require some "partial mixture of powers" so that each power can check the other two powers.

That's why the Constitution's vesting of the executive power in the President is not an exclusive or indefeasible vesting of all executive power in the President alone.

But even if the executive vesting clause of the Constitution (the first sentence of Article II) does not support the theory of the unitary executive.  The proponents of the unitary executive can fall back to two more arguments based on the Faithful Execution Clauses of Article II and the "Decision of 1789."

The Constitution twice imposes a duty of faithful execution on the President.  He "shall take Care that the Laws be faithfully executed" (Art. II, sec. 3).  The president must also take a special oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States" (Art. II, sec. 1, cl. 8).  According to the advocates of the unitary presidency, one or both of these clauses give the president the power to act outside the law to defend the nation in times of emergency, and to refuse to execute statutory laws that he regards as unconstitutional or bad policy.

But scholars who have studied the textual roots of these clauses from medieval England, through colonial America, and up to the constitutional ratification debates have found that this language of "faithful execution" imposed three duties on officeholders: "(1) a duty not to act ultra vires, beyond the scope of one's office; (2) a duty not to misuse an office's funds or take unauthorized profits; and (3) diligent, careful, good faith, honest, and impartial execution of law or office" (Kent, Leib, and Shugerman 2019: 2112).  If this is the original meaning of "faithful execution," then the proponents of the unitary executive are wrong to claim that this language gives the President the power to violate the laws of Congress and the Constitution.

And yet there is still another argument for the unitary executive that appeals to what has been called the "Decision of 1789."  In Seila Law LLC v. Consumer Financial Protection Bureau (2020), the majority of the Roberts Supreme Court declared that the tenure protection for the Director of the CFPB--the President could remove him only for "inefficiency, neglect of duty, or malfeasance in office"--was an unconstitutional violation of the separation of powers.  In their reasoning for this conclusion, they largely adopted Scalia's arguments in his Morrison dissent.  They claimed that the President's unrestricted removal power was confirmed by history--particularly in the decision of the First Congress in 1789 recognizing that "the executive power included a power to oversee executive officers through removal" (Seila L., 140 S. Ct. at 2183, at 2197 [2020]).  The only evidence they gave for this was a Letter from James Madison to Thomas Jefferson (June 30, 1789).

But scholars who have studied the records of the debates in the First Congress (1789-1790) have found that the majority in the House and Senate never agreed that the Constitution gave the President an unrestricted removal power.  After a long debate, the First Congress did ultimately allow the President a unilateral removal power over the Secretaries of Foreign Affairs, War, and Treasury.  But while a small minority seemed to believe that this grant of removal power came from Article II of the Constitution, many in the Congress believed this to be a congressional grant of removal power (Chabot 2022; Shugerman 2023).  The reason for this disagreement is that the Constitution is silent on this question: assigning the President a plenary removal power appears nowhere in the Constitution.

There were at least four factional groups in the debate in the First Congress over the removal power.  The "impeachment only" faction believed that the only constitutional power for removing executive officers was congressional impeachment.  The "senatorial" faction believed that since the Constitution required the President's appointments to be approved by the Senate, this implied that the President's decision to remove a superior officer would have to be approved by the Senate.  The "congressional" faction believed that any removal power of the President would have to be delegated to him by the Congress, and thus it was a matter of discretion for the Congress to say upon what terms an office could be held.  And, finally, the "presidential" faction believed that the President's removal power was implicitly given to him by Article II of the Constitution.

There is some evidence that these disagreements over the interpretation of the Constitution arose from different individuals having different political agendas.  So, for example, those individuals whose political careers might be tied to President Washington's administration might argue for expansive presidential powers.

The First Congress Established Independent Regulatory Structures

In his dissent, Scalia asserted: "It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President.  The Constitution prescribes that they all are" (709).  The First Congress did not agree to this claim--that all the executive powers of government are "within the full control of the President."  The clearest evidence for their rejecting this claim is that the Congress established many independent regulatory structures in the Executive Branch that were insulated from "the full control of the President."

Consider, for example, the Sinking Fund Commission that was established by Congress in 1790.  "Like the Federal Reserve, the Commission conducted open market purchases of U.S. securities with substantial independence from the President" (Chabot 2020: 1).  Contrary to what Scalia claimed, the American Founders in the First Congress did not believe that Article II of the Constitution required that the Sinking Fund Commission should be under the "full control of the President."

In 1790, the Congress asked Alexander Hamilton (the Secretary of the Treasury) to devise a plan to repay the nation's debt.  He submitted a report that outlined a plan for refinancing state and federal debts.  Part of that plan was a proposal was a sinking fund that would repay debt through open market purchases of U.S. securities.  He proposed that this sinking fund would be administered by a Sinking Fund Commission of five members--the Vice President of the United States or President of the Senate, the Speaker of the House of Representatives, the Chief Justice, the Secretary of the Treasury, and the Attorney General of the United States.  Three or more of these five could decide to discharge public debt through open market purchases of U.S. securities.  

This executive agency was almost completely independent of the President.  He could not directly determine their decisions.  He had the power of removal over the two cabinet members--the Secretary of the Treasury and the Attorney General.  But the other three members could not be removed by the President.

On August 12, 1790, the First Congress passed the Sinking Fund Act, which was an altered version of Hamilton's plan.  The Sinking Fund Commission had five members: the Vice-President (John Adams), the Chief Justice (John Jay), the Secretary of State (Thomas Jefferson), the Secretary of the Treasury (Alexander Hamilton), and the Attorney General (Edmund Randolph).  Purchases required the agreement of three or more of the five members and the approval of the President.

While Hamilton's proposal would have made the Commission completely independent of the President, the alterations made by Congress gave the President more but not complete power over the Commission.  The President could not force his will onto the Commission, although he could veto their decisions by withholding his approval.

Three features of the independent structure of the Commission allowed the members to check the President and check one another rather than simply carrying out the will of the President.  First, two of the members--the Vice President and the Chief Justice--could not be removed or replaced by the President.  This violates the unitary presidency, which requires that executive officers be removable at the pleasure of the President.  Second, the President could not force the Commission to obey his commands by removing a cabinet member, because then the deciding third vote would go to the Vice President or the Chief Justice, who are both independent of the President.  Third, the multimember structure of the Commission prompted the members to check one another instead of carrying out the wishes of the President.  Indeed, Jefferson and Hamilton were already political rivals by 1790; and they often disagreed about the Commission's decisions.

The Sinking Fund Commission is only one of many examples of how the First Congress created independent regulatory structures in the Executive Branch that were not under the complete control of the President, which contradicts the unitary executive theory.  Christine Kexel Chabot (2022) has found 71 examples of statutory provisions in the work of the First Congress that create independent executive structures that foster countervailance--power checking power--beyond the control of the President.

Some of these statutory provisions require multiple officers to check each other.  For instance, in the Treasury Act of September 3, 1789, we see: "Officers in the Treasury Department retained financial incentives to turn in other officers who obtained any extralegal 'emolument or gain for negotiating or transacting any business' of all the Department.  Treasury officers who provided 'information' leading to conviction of their peers were entitled to a $1500 share of penalties" (Chabot 2022: 199).

Other statutory provisions enlisted private parties and judges to police executive officers.  For instance, in the Collection Act of July 31, 1789, we see: "Private informers could recover bounties upon conviction of customs officers.  The award to private informers applied in 'all cases' where amounts were recovered 'in pursuance of information given' by the informer" (Chabot 2022: 201).

These laws enacted by the First Congress dispersed executive decisions amongst multiple officers in ways that created a system of checks and balances within the Executive Branch, which denies Scalia's claim that "all" the executive powers must be under the full and direct control of the President

Here and in the previous post, I have argued that to understand the evolutionary science of government through countervailing or balanced powers, we need to understand the natural history and cultural history of governmental countervailance.   

But we also need to understand the biographical history of the individuals who debate the meaning of separation of powers with checks and balances.  That will be the subject for my next post on how the individual history of Scalia and Trump shaped their commitment to the unitary executive theory.

The Chimpanzee Politics of Trump's "Unitary Executive Theory" of Demagogic Tyranny

                                                         "You're Fired!"  By Barry Blitt

"If the President does it, that makes it legal."

"I have an Article II, where I have the right to do whatever I want as president."  

"He who saves his country violates no law."

That first sentence is a remark by Richard Nixon in an interview with David Frost in 1977.  This was three years after Nixon had been forced to resign to avoid impeachment for crimes associated with the Watergate break-in.  Nixon went on to explain to Frost that "in war time, a President does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution." I have written about this as an example of a president claiming the executive prerogative powers of a dictator (Arnhart 2016: 254-262).

The next two sentences are from Donald Trump.  That's what Trump says when he is accused of illegal actions in exercising presidential power.  

The third sentence has been attributed to the French Emperor Napoleon Bonaparte, and it suggests the idea that in a time of national emergency or war, the national leader must have absolute power to do whatever he thinks is necessary to save the country.  

In the second sentence, Trump is referring to the "unitary executive theory," which says that Article II of the Constitution gives the President complete power over the Executive Branch, and therefore any congressional legislation regulating or limiting that executive power of the President is unconstitutional.  So, for example, the President may rightly disregard any congressional laws that set up independent agencies outside of presidential authority or laws restricting the president's power to remove employees within the executive branch.  This theory is what justifies everything that Trump and Elon Musk have been doing to take control of the federal government, even though much of this violates federal law.

The unitary executive theory is based largely on an interpretation of the first sentence of Article II: "The executive Power shall be vested in a President of the United States of America."  The claim is that this sentence vests all of the executive power solely and exclusively in the President.  And, therefore, the Congress cannot deny or restrict the President's absolute power over the entire Executive Branch--all of the Federal administrative agencies and departments and all of the three million civilian employees (including the USPS employees) and 1.3 million active-duty military employees.

Moreover, it is argued that this follows necessarily from the principle of the separation of powers.  To prevent the tyranny that would come from one or a few people having too much concentrated power, the executive, legislative, and judicial powers must be strictly and completely separated.  And that means that in the government of the United States, the Congress and the courts must never exercise any executive powers, which belong only to the President.  Consequently, President Trump in the exercise of his executive powers can do whatever he wants.

It is also argued that the President has the authority to act as the one supreme leader of the government because he is the only person who has been elected by the American people in a national election to fill the Office of the President at the head of the government.  This allows a popular demagogue like Trump to say he must be free to do whatever he wants to fulfill his mandate from the people.

It is likely that the U.S. Supreme Court will soon have to decide whether this unitary executive theory as expansively interpreted by Trump is correct.

There are at least three reasons for thinking that the Supreme Court should rule that the proponents of this theory are mistaken.  First, their interpretation of Article II--and particularly, the vesting clause--violates the original meaning of the constitutional text.  This is remarkable since the advocates of this theory claim to be constitutional originalists who look for the clear meaning of the text as it was written by the constitutional framers in 1787 and ratified in 1789.

Second, the proponents of this theory fail to see that the principle of separation of powers with checks and balances does not dictate a complete separation of powers because securing a balanced government requires some partial mixing of those powers, and this was understood by the constitutional framers.

Third, the proponents of this theory do not grasp how the balancing of powers through a partial mixing of those powers is the only way to prevent a demagogic president like Trump from becoming a tyrant.  The Founders saw this threat to liberty from a Caesaristic demagogue like Trump when they warned "that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying obsequious court to the people; commencing demagogues, and ending tyrants" (The Federalist, number 1).

In explaining these three points, I will show how the need for the balancing of powers in government to check the tyrannical propensities of ambitious demagogues is rooted in the evolutionary history of the human beings.  I will move through three levels of biopolitical history: the natural history of the "chimpanzee politics" of dominance hierarchies, the cultural history of using a constitutional balance of powers to steer the ambitious striving for dominance away from tyranny, and the biographical history of ambitious individuals looking for ways to satisfy their desire for dominance (Arnhart 2009; 2012).  (I will link to previous posts that elaborate some of these ideas.)

We should see that there is a complex co-evolutionary interaction between these three levels of evolutionary history.  Natural history enables and constrains, but does not determine, cultural history.  Natural history and cultural history jointly enable and constrain, but do not determine, biographical history.  Shaped by their social and personal history, individual political actors must decide how best to satisfy their peculiar ambition for political power within the contingent circumstances that they face.

NATURAL HISTORY

Human politics is rooted in an evolutionary history of power-seeking and rivalry for dominance shared with other primates--monkeys and apes.  Frans de Waal found that Niccolo Machiavelli's Prince was the one book that most helped him understand the complex political life of chimpanzees.  Machiavelli analyzed politics as competition for power and glory organized around three orders of human beings--the "prince," who is number one, the "great ones," who are high-ranking individuals with ambition to rule; and the "people," who are the majority of individuals in a society with no ambition to rule, but who do not want to be oppressed by the "prince" or the "great ones."

Just as Machiavelli saw a balance of power as the fundamental mechanism for maintaining a stable political order that would not be despotic, de Waal saw a similar mechanism at work among chimpanzees.  Noticing how the alpha male often had to rely on the support of an ally to keep challengers down, de Waal explained this as a "balance of power: the superiority of one party over another depends on the support of a third, so that each party affects the position of the others."

Although every human society shows an order of dominance, a well-balanced society can achieve egalitarian dominance rather than despotic dominance.  De Waal observed that rhesus monkeys manifest despotic dominance, because a dominant rhesus monkey instills unremitting fear in subordinates.  But among chimpanzees, the dominant chimp often acts to protect subordinates, and if he becomes a bully, he can provoke an alliance of subordinates to throw him out of power.  Something similar seems to happen in egalitarian human communities.

Among human hunter-gatherers, the few people who are ambitious to rule can become leaders; but leaders who become too proud are attacked with social ridicule, and in extreme cases, leaders can be deposed or even executed by their followers.  Christopher Boehm argued that this supported an evolutionary political psychology of dominance, deference, and counter-dominance.  A few human beings who are ambitious for dominance will fight with one another for the highest social ranking.  Most human beings will defer to these dominant few.  But if the few dominant ones become too oppressive in exploiting the multitude, the people will resist and perhaps even overthrow the dominant ones.

CULTURAL HISTORY

Beginning with the emergence of the first archaic states about 5,000 years ago, power became ever more centralized and concentrated in a bureaucratic state under a ruling class of priests and kings that was inclined to autocratic tyranny.  When that despotic dominance became oppressive, it could provoke popular resistance and rebellion.

In this autocratic form of government, all power is concentrated in a few people or even one person with supreme sovereignty.  By contrast, some societies have had a balanced form of government, in which power is divided between independent entities that check and counterbalance one another in a system of countervailance with no supreme sovereignty.

The predominance of these two principles of government--sovereignty versus countervailance--in the cultural history of governments over the past 5,000 years suggests that despite the great diversity in the forms of government, these two principles identify the two basic models of social organization.  According to the model of sovereignty, the authority to command is hierarchically structured with the supreme power at the top.  According to the model of countervailance, the authority to command is distributed across a network of independent powers--so that power controls power--and there is no supreme power.

Scott Gordon--in Controlling the State: Constitutionalism from Ancient Athens to Today--has sketched the cultural history of these two models from Athenian Democracy and the Roman Republic to American constitutionalism and modern Britain.  He coined the word "countervailance" to denote the counterbalancing of powers in a social system.  Although the Oxford English Dictionary does not recognize the word "countervailance," it does recognize "countervailing" as a noun, a verb, and an adjective.

Gordon's two models correspond roughly to what David Stasavage calls "autocracy" and "democracy."

The Balanced Republic of the Founders

The American Founders clearly chose the model of countervailance, although they identified this not as a pure "democracy," but as a "republic" with a balance of powers.  As early as 1775, when the revolutionaries were first discussing what the new American constitutionalism should look like, John Adams proposed:

The Course of Events, naturally turns the Thoughts of Gentlemen to the Subjects of Legislation and Jurisprudence, and it is a curious Problem what Form of Government, is most readily and easily adopted by a Colony, upon a Sudden Emergency.  Nature and Experience have already pointed out the Solution of this Problem, in the Choice of Conventions and Committees of safety.  Nothing is wanting in Addition to these to make a compleat Government, but the Appointment of Magistrates for the due Administration of Justice.

Taking Nature and Experience for my Guide I have made the following Sketch, which may be varied in any one particular an infinite Number of Ways, So as to accommodate it to the different, Genius, Temper, Principles and even Prejudices of different People.

A Legislative, an Executive and a judicial Power, comprehend the whole of what is meant and understood by Government.  It is by balancing each of these Powers against the other two, that the Effort in human Nature towards Tyranny, can alone be checked and restrained and any degree of Freedom preserved in the Constitution (Letter to Richard Henry Lee, November 15, 1775).

What Adams calls "Nature and Experience" is what I call natural history and cultural history.  The natural evolutionary history of the human species explains "the Effort in human Nature towards Tyranny," and the cultural history of balancing the three powers of government shows us how to check and restrain that natural tendency to tyranny and preserve freedom from tyranny.  But then at the individual level of history, Adams recognizes that his sketch for a constitution, which he elaborated in his Thoughts on Government in 1776, will have to be accommodated "to the different, Genius, Temper, Principles and even Prejudices of different People" in constitutional and ratifying conventions.

Adams and the other Founders generally agreed on a form of government that would balance the three powers--legislative, executive, and judicial--so that "ambition must be made to counteract ambition," and none of the three powers could become tyrannical (Federalist, number 51).  But they were unsure of how the presidency should be designed to fit into this scheme of balanced government.  At the Constitutional Convention of 1787, Alexander Hamilton proposed a presidency that looked like an elective monarchy.  But others wanted the president to be constrained by an executive council of people because they feared giving all the presidential powers to one person.

Once they agreed to give the presidential powers to one person, they worried about how he would be selected.  They did not want a national popular election of the president because they feared that the people would choose a popular demagogue who would lead a party faction contrary to the public good.

They devised a complicated indirect system of selection through the Electoral College.  They were confident that "the process of election affords a moral certainty that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications," that the "talents for low intrigue, and the little arts of popularity" would not elevate a man to the presidency, and that "there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue" (Federalist, number 68).  

This was a mistake, perhaps the single biggest mistake in the Constitution.  Within the first ten years of the government, the selection of the president came under the control of two intensely partisan political parties.  And within fifty years, most of the state legislatures had handed over the selection of presidential electors to popular vote.

Republican Remedies for Presidential Democracy

From the beginning, presidents persistently claimed presidential control of the executive branch, which would support the idea of a unitary executive at the head of a presidential government (Calabresi and Yoo 2008).  But beginning in the 19th century, the cultural history of the American state shows the emergence of various extraconstitutional contrivances for constraining presidentialism in favor of republican balancing, which Skowronek, Dearborn, and King (2021) have called "republican remedies" for presidential democracy.

For example, early in the 19th century, Congress controlled presidential nominations: the congressional party selected the national candidates and then coordinated the local electors in supporting the candidates.  By the middle of the 19th century, local party bosses controlled the nomination of candidates.  And presidents were expected to hand out jobs in the executive branch to all the factions of their party.

By the turn of the 20th century, Progressive reformers attacked this control of the executive branch by the spoils system.  They set out to render executive administration nonpartisan by providing civil service protections for the government workforce and by establishing various independent regulatory commissions that were largely insulated from presidential control.

To be continued . . .

The Supreme Court Rules Against Trump's Administrative State in Overturning His Tariffs: A Victory for Lockean Liberalism

Beginning on February 1, 2025, Donald Trump issued a series of executive orders that invoked the International Emergency Economic Powers Act of 1977 (IEEPA) as statutory authority for his imposition of massive tariffs on imports from countries around the world.  I responded to this by arguing that this was both illegal and unconstitutional.  

It was illegal because IEEPA does not clearly give the President any power to levy tariffs.  In fact, the IEEPA says nothing about tariffs.  And in the almost 50 years since it was passed, no president has claimed that it gives him any power over tariffs--until Trump.  It was unconstitutional because the Constitution gives to Congress, but not the President, the power to tax, and tariffs are taxes.  This is a crucial part of the constitutional system of separation of powers that prevents the concentration of power in the president.  Consequently, the Congress cannot constitutionally give up its taxing power to the president.  

Any congressional delegation of the taxing power, including the power over tariffs, to the executive branch must be constrained by specified limits and procedures, which one can see in the congressional statues giving the president some powers for setting tariffs.  In his first term, Trump worked within these statutes to raise tariff rates on various nations.  But he discovered that the requirements of these laws severely constrained his power.  So at the beginning of his second term, he decided that he would use the IEEPA to give himself unlimited power to impose tariffs at will, even though the IEEPA says nothing about tariffs.

Those federal judges who claim to be "originalists" or "textualists" in adhering strictly to the original meaning of constitutional or statutory texts will have to rule that Trump's tariffs are unconstitutional.  If they don't, they will show the dishonesty of their profession of originalist jurisprudence because they will show that they are willing to ignore the original meaning of the legal texts if it contradicts their partisan political commitment to Trump.

THE DECISION: ONE COALITION AND TWO SPLITS

On Friday, the Supreme Court issued its 6 to 3 decision in Learning Resources, Inc., et al. v. Trump declaring that IEEPA does not give Trump any power to impose tariffs.  As you might expect from what I have argued previously about this debate, I am persuaded by the reasoning of the majority.  If you read the decision (all 170 pages of it!), you can decide for yourself whether the six justices in the majority and I are right.  I won't add much here about the substantive issues beyond what I have already said.

Here I am interested in the lineup of judges on the two sides, which is remarkable in three ways.  First, those on the side of the majority constitute a coalition of three Republican appointees (John Roberts, Neil Gorsuch, and Amy Coney Barrett) and three Democratic appointees (Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson).  Second, there's an even split among the six Republican appointees because three are on the majority side and three (Clarence Thomas, Brett Kavanaugh, and Samuel Alito) are on the dissenting side.  Third, there is a split within the Trump appointees: two voting with the majority (Gorsuch and Barrett), and one going with the dissenters (Kavanaugh).  Trump lost this case because he lost the votes of Gorsuch and Barrett.  If they had taken his side, it would have been a 5 to 4 decision in Trump's favor.

So what's going on here?  In Gorsuch's opinion, I see the best explanation for both the coalition and the two splits, although Gorsuch only implies what I will make explicit here.

The ultimate issue here is the question of how to properly allocate the powers of the national government between the Congress, the Executive Branch (the President and the federal administrative officers), and the Federal Judiciary so as to secure the separation of powers with checks and balances.  The first and longest article of the Constitution is the Legislative Article I, with the longest list of enumerated powers, which suggests that even with the separation of powers between the three branches, Congress should be supreme.  

But over time the presidency has become ever more powerful, particularly in matters of war and foreign affairs.  And since the end of the nineteenth century, the Congress has delegated some of its lawmaking powers to the president and to administrative agencies.  This has grown into what has been called (mostly by its critics) the Administrative State--administrative agencies seem to exercise concentrated legislative, executive, and judicial powers, with few checks on their power, creating an administrative tyranny that threatens individual liberty.

In 1946, the Congress attempted to limit this administrative power through the Administrative Procedure Act (APA), which in effect created a separation of powers within the federal administrative agencies.  The APA required agencies to keep the public informed of their procedures and rules, to allow the public to participate in the rulemaking process through public commenting, and to establish formal procedures for rulemaking and adjudication that would allow the public to file lawsuits challenging unfair rulemaking.

Conservatives, libertarians, and classical liberals have argued that this does not go far enough in limiting administrative power.  They have proposed new limits that are either vertical or horizontal.  Some conservative Republican lawyers have proposed the Unitary Executive Theory as the best way to put a vertical limit on the Administrative State: if Article II of the Constitution gives the President absolute power over all the federal administrative officers in the Executive Branch, then a popularly elected president can enforce the will of the people upon the Administrative State. 

The problem with this, however, as I have argued, is that the lesson this teaches someone like Trump is "Article II gives me the power as president to do whatever I want to do."  Far from limiting the Administrative State, this creates a Presidential Administrative State in the service of Trump's dictatorship.

Consequently, some conservatives, libertarians, and classical liberals have said that what we need is for Congress to exercise its constitutional powers in ways that will horizontally limit the powers of both the President and federal administrators.  Over the past one hundred years, the Congress has delegated too much of its constitutional power--either directly or by acquiescence--to the President and federal administrative officers.  

There are two ways to reverse this.  The radical way is to insist on a strict non-delegation principle--that Congress may not delegate its constitutional powers to the President or administrators.  But that would require a revolutionary overthrow of the Presidential Administrative State that few people would be willing to accept.

The moderate way to reverse the flow of lawmaking power out of Congress would be for the federal courts to enforce what has been called the "major questions doctrine."  That's the principle that Gorsuch defends in his opinion in Learning Resources v. Trump.  Gorsuch defines this principle as the rule "that, when executive branch officials claim Congress has granted them an extraordinary power, they must identify clear statutory authority for it" (Gorsuch, 6).  Notice that "executive branch officials" includes both the President and federal administrators.  Notice also that "extraordinary power" surely includes the power claimed by Trump "to impose a tariff of any amount, for any time, on only his own say-so" (Kagan, 6).  This is called the "major questions" doctrine because it applies only to cases that involve major economic or political consequences.  This is more moderate than an absolute non-delegation doctrine because it allows the Congress to delegate its powers to executive branch officials but only when the delegation is stated in clear statutory language.  That's a high standard because most of the growth in the Presidential Administrative State has come from executive branch officials appealing to vague or ambiguous language in congressional statues as delegations of congressional power to the Executive Branch.

The shrewd decision to employ the major questions doctrine in the legal strategy that won the Learning Resources case came from Ilya Somin in a blog post that he published the day after Trump announced his first tariffs on February 1 of last year.  Ilya suggested that since the major questions doctrine was "more moderate" that a strict non-delegation doctrine, it would appeal to "some of the conservative judges" and "one or more liberal judges."  Later, Somin advised the Liberty Justice Center, a right-leaning legal organization that brought the Learning Resources case to the Supreme Court.  Somin's strategy was even more successful than he anticipated because he persuaded all three of the liberal judges and three of the six conservative judges.

So why weren't those three dissenting conservatives (Kavanaugh, Thomas, and Alito) persuaded?  These three judges claim to be textualists and originalists who base their decisions not on their political preferences but on the original meaning of the constitutional and statutory texts.  In this case, they argued that Trump's absolute power to impose tariffs was authorized by the language of the IEEPA, which stated that once a president has declared an international economic emergency, he has the power to 

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States. 50 U.S.C sec. 1702 (a) (1).

Notice that this does not mention tariffs, nor any synonyms such as duties and imposts.  So where did these judges find the power to impose tariffs in this passage?  Well, they take two words out of this passage--"regulate" and "importation"--and they create the phrase "regulate . . . importation," which they claim clearly means impose tariffs.  In Kavanaugh's opinion, by my count, he uses the phrase "regulate . . . importation" 74 times!  But he never considers how these two words fit into the context of this long sentence.

In her concurring opinion, Kagan points out that "regulate" is one of 9 verbs in this delegation provision.  The others are "investigate," "block," "direct," "compel," "nullify," "void," "prevent," and "prohibit."  Those verbs are followed by 11 objects, each describing a distinct sort of transaction involving foreign property--not just "importation," but also "acquisition," "holding," "transfer," and so on.  Combining these verbs and objects in all possible ways, the statute authorizes 99 actions a President can take.  When "regulate . . . importation" is compared with the 98 other actions, they all look like various ways to constrain or alter various foreign transactions.  But none of these 99 actions clearly require that the President exercise the congression power to tax by imposing tariffs.

Now Kavanaugh argues that the word "regulate" broadly defined could include "imposing tariffs."  But that is not clearly indicated in the IEEPA.  And the Constitution distinguishes the Congress's "Power to lay and collect Taxes, Duties, Imposts, and Excises" (in the first clause of Article I, section 8) from the power "To regulate Commerce with foreign Nations" (in the third clause of section 8).  So the Constitution does not use the word "regulate" as including taxing and imposing tariffs.

If we apply the major questions doctrine to this case, then we would have to say that the IEEPA does not delegate the congressional power over tariffs to the President because this statute does not state that in clear unambiguous language.

Gorsuch points out that the three dissenting judges in this case are taking a position that contradicts the position they took a few years ago in ruling against the unconstitutional and illegal powers claimed by Biden's Administrative State.  During Biden's term of office, these three conservative judges joined in some major questions decisions that struck down claims to extraordinary powers made by the Biden Administration.  

For example, in National Federation of Independent Business v. OSHA (2022), the Biden Administration argued that the statute charging the Occupational Safety and Health Administration with promoting "safe and healthful working conditions" authorized that agency to impose a vaccine mandate on 84 million Americans.  The six conservative judges constituted the majority ruling against the Biden Administration because the statutory language was too vague to clearly delegate to the Executive Branch such an extraordinary power.

Similarly, in Alabama Assn. of Realtors v. Department of Health and Human Servs. (2021), the Biden Administration argued that the statute permitting the Centers for Disease Control and Prevention to issue regulations "necessary to prevent the . . . transmission . . . of communicable diseases" granted to that agency the power to declare a moratorium on landlords evicting tenants.  Once again, the six conservative judges ruled that this language was not clear enough to justify giving such a power to the Executive branch.

In many other similar cases during Biden's term, the outcome was the same.  The Biden Administration would invoke vague statutory language as justifying broad powers for the Biden Administrative State, and the six conservative judges would rule against them on the grounds that the statutory language was not clear enough.

But now in Learning Resources, three of those six conservative judges wanted the Court to rule in support of Trump doing exactly what Biden had done--using vague statutory language to justify expanding the powers of the Presidential Administrative State.  So they are in contradiction with themselves.

Strikingly, the three liberal judges are also in contradiction with themselves but moving in the opposite direction.  They voted in favor of the Biden Administration using vague language to justify broad executive power, but now they are voting against the Trump Administration for doing the same thing.

What's going on here?  Gorsuch suggests--although he says it quietly--that the three liberal judges who voted with the majority in Learning Resources and the three conservative judges who dissented in Learning Resources are voting for their partisan preferences--the liberal Democrats voting in support of a Democrat President, and the conservative Republicans voting in support of a Republican President.  By contrast, the three conservative judges who voted with the majority against Trump in Learning Resources are free from political bias in consistently adhering to their principles of originalist jurisprudence--originalist principles that require them to overrule the unconstitutional and illegal actions of a Presidential Administrative State, regardless of whether the President is a Democrat or a Republican.

LIBERAL AND ILLIBERAL AMERICA IN THE MAGA MOVEMENT

So what happens now after the Learning Resources decision?  There are at least two ways that Trump could counter the Court's decision.  He could refuse to obey the decision.  He could say: "I can do anything I want, and it doesn't matter what the Supreme Court says.  So I will continue to exercise my absolute power to impose tariffs whenever and however I want."  

Or he could order the Congress to overturn the Court's decision by passing a law that entirely gives up the congressional power of taxing and imposing tariffs to the President.  He has taken neither of these courses of action.  Instead, he has said that he will use laws other than the IEEPA that might give him some power over tariffs.

Notice what this means.  Trump accepts the principle of separation of powers through which Congress and the courts can check his powers as President.  This is very far from his boast: "As president, I can do anything I want."

Apparently, he doesn't believe that a Republican-controlled Congress would obey his order to legalize his dictatorial powers.  (House Speaker Mike Johnson has said that it's unlikely that Congress would ever pass legislation to codify Trump's tariffs.)  And he doesn't believe that his MAGA supporters would allow him to rule as a dictator.  

This confirms what I have argued previously--that in Trump's leadership of the MAGA movement we see the tension between an illiberal America and a liberal America, but ultimately liberal America will prevail.  So in this case, we see that the Lockean liberal principle of separation of powers prevails over the propensity to accept the dictatorship of unbridled power.

I speak of separation of powers as Lockean because Locke insists that governmental administrators exercise only "subordinate powers" and must therefore be "accountable to some other power in the commonwealth" (ST, 152).  Because governmental actions must be guided by law, and because the legislative body cannot delegate its lawmaking power to anyone else, administrators should serve simply as instruments for carrying out the laws enacted by the legislative body. Locke writes: "the Legislative cannot transfer the Power of Making Laws to any other hands.  For it being but a delegated Power from the People, they, who have it, cannot pass it over to others" (ST, 141).

Locke's principle of separation of powers is based on an anthropological principle--that human beings with political ambition naturally strive for tyrannical dominance over others, and therefore the only check on such striving for dominance is a system of countervailing powers, where ambition checks ambition.

Gorsuch points to this Lockean anthropological principle in his opinion in Learning Resources:

. . . highly resourceful members of the executive branch have strong incentives to exploit any doubt in Congress's past work to assume new power for themselves.  The major questions doctrine helps prevent that kind of exploitation.  Our founders understood that men are not angels, and we disregard that insight ate our peril when we allow the few (or the one) to aggrandize their power based on loose or uncertain authority.  We delude ourselves, too, if we think that power will accumulate safely and only in the hands of dispassionate "people . . . found in agencies." . . . Even if unelected agency officials were uniquely immune to the desire for more power (an unserious assumption), they report to elected Presidents who can claim no such modesty (Gorsuch, 16). 

The Unitary Executive Theory Feeds the Grandiose Narcissism of Trump's Despotic Dominance

 

           Napoleon Crowns Himself Emperor with Pope Pius VII Looking On, December 2, 1804

The biographical history of the unitary executive theory is the personal history of the American presidents.  According to Steven Calabresi and Christopher Yoo (2008), all of the presidents have believed in the theory of the unitary executive, because they have all claimed that Article II of the Constitution gives them the power to remove and direct all of those officials who exercise executive power.

But no president has ever interpreted the presidential power in Article II as expansively as Donald Trump has.  Hearing about the theory of the unitary executive from his legal advisors excited Trump because he could then declare: "I have an Article II, where I have the right to do whatever I want as president."

The right to do whatever he wants as president!  Nothing could be more exhilarating for a man like Trump, who is unique among all the presidents in the grandiosity of his grandiose narcissistic personality.  (I have written about Trump's grandiose narcissism compared with the personalities of other presidents and chimpanzees.)

Trump is interpreting Article II as the constitutional justification for overturning the Constitution by crowning himself Emperor, just as Napoleon did.  Trump has even repeated words attributed to Napoleon when he became Emperor: "He who saves his country violates no law."  To show that he identifies this remark as Napoleon's, Trump has posted it along with a famous painting of Napoleon by Jacques-Louis David.

                                       Trump Has Posted This Screenshot on "Truth Social"

As I have argued, the proponents of the unitary executive theory are mistaken in their interpretation of the Constitution.  But their biggest mistake has been in not anticipating how their theory would feed the Napoleonic ambition for dictatorship in someone like Trump.

Steven Calabresi is one of the leading advocates of the unitary executive theory who came to regret his support for Trump's election in 2016.  In 2020, he warned that Trump was showing the traits of a fascist dictator, and he voted for Biden.  In 2021, he recommended that Trump should be impeached for inciting the January 6 insurrectionary attack on the Capitol.  In 2024, Calabresi argued that under Section 3 of the 14th Amendment, Trump should be disqualified from running for president again because he had violated his oath of office by engaging in "insurrection or rebellion" against the Constitution.  But then, strangely, a few weeks later, he announced that he had changed his mind because the President was not an "officer" of the U.S. government under the 14th Amendment.  Trump should be allowed to run again, Calabresi advised, but the voters should reject him because of his fascist propensities.

In 2021, Calabresi wrote a response to Skowronek, Dearborn, and King's Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive.  They showed how Trump had used his interpretation of the unitary executive theory to move towards a presidential dictatorship unrestrained by the constitutional system of checks and balances.  Calabresi agreed that Trump's tyrannical ambition had threatened the constitutional order.  But still Calabresi insisted that this was no reason to reject the unitary executive theory.

We should not "remake" the Constitution because of a once in 232 years oddball-president like Trump.  And, liberals should realize that originalists who want a unitary executive like me also want a vigorous non-delegation doctrine; an Article III administrative law judiciary; and, above all else, a government of checks and balances.  We abhor fascist as well as socialist dictators, which is why, in 2020, I voted for Joe Biden (Calabresi 2021).

Calabresi is right in saying that Congress has delegated too much of its lawmaking power to the President and administrators, and that administrative law judges should be nominated by the President and confirmed by the Senate with tenure during good behavior.  But this does not solve the problem of Trump's dictatorial propensities animated by his belief that a unitary presidency means that since the president has complete control over the execution of congressional laws and court orders, the president can refuse to enforce those laws and court orders.

Calabresi is also right that Trump is "a once in 232 years oddball-president" because he's the only president who has interpreted the unitary presidency to mean that Article II allows him to become a Napoleonic dictator.  But Calabresi and the other proponents of the unitary executive theory could have predicted Trump's "oddball" presidency if they had listened to John Adams, Alexander Hamilton, Abraham Lincoln, and others who had warned about presidential demagogues with grandiose ambitions who would strive to become tyrants.

LINCOLN'S EGALITARIAN DOMINANCE

In 1838, in his "Young Men's Lyceum Address," delivered in Springfield, Illinois, Lincoln warned about the danger of someone like Trump who would thirst for the splendid glory that would come from becoming America's Caesaristic Dictator like Napoleon and thus destroy the American constitutional order.  The subject for his speech was "the perpetuation of our political institutions" that constitute our "political edifice of liberty and equal rights."  This had become an urgent question for Lincoln's generation--he was soon to turn 29 years old--because the generation of the American Revolution and Founding had passed away, and it was not clear that the new generation would preserve and pass on the political legacy that they had inherited.

Lincoln began by dismissing as unlikely any danger from some transatlantic military force. He insisted that all of the combined armies of Europe, Asia, and Africa under the command of a Napoleon could not succeed in conquering America.

The more likely danger to our political institutions must spring up amongst us.  "If destruction be our lot, we must ourselves be its author and finisher.  As a nation of freemen, we must live through all time, or die by suicide."

Lincoln thought he saw a foreboding sign of possible national suicide in the "increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgments of Courts; and the worse than savage mobs, for the executive ministers of justice."  He then vividly described a half dozen examples of such mob violence from every part of the country, from New England to Louisiana to St. Louis.

In explaining how this "mobocratic spirit" threatens "the perpetuation of our political institutions," Lincoln sketched the political psychology of four distinct groups of Americans.  First, there's "the mob"--those many Americans who think that vigilante violence is justified if the legal institutions for law enforcement are too slow in punishing criminals.

Second, the "lawless in spirit" are those who obey the law only because they dread punishment, and therefore when they see that the lawless mobs go unpunished, the "lawless in spirit" become "lawless in practice."

Third, there are the "good men" who desire to abide by the laws, and as long as they enjoy the tranquility of a society ruled by law, they will fight in defense of their country.  But when these good men see their country become utterly lawless, so that there is no rule of law to protect their lives, their families, and their property, this weakens their attachment to their government; and they are willing to see the overthrow of their government.

Fourth, there are "the men of ambition and talents" who see the lawless violence in the country as an opportunity for them to seize power and thus satisfy their ambition for political glory.  Previously, during the revolutionary and founding period of America, these men satisfied their ambition for fame and glory by striving "to display before an admiring world, a practical demonstration of the truth of a proposition, which had hitherto been considered, at best no better, than problematical; namely, the capability of a people to govern themselves."  They succeeded, and their names have been immortalized.

But "this field of glory is harvested, and the crop is already appropriated.  But new reapers will arise, and they, too, will seek a field."  Men of ambition and talents will continue to spring up, and they will seek to gratify their ruling passion for distinction. 

The question then, is, can that gratification be found in supporting and maintaining an edifice that has been erected by others?  Most certainly it cannot.  Many great and good men sufficient qualified for any task they should undertake, may ever be found, whose ambition would aspire to nothing beyond a seat in Congress, a gubernatorial or a presidential chair; but such belong not to the family of the lion, or the tribe of the eagle.  What! think you these places would satisfy an Alexander, a Caesar, or a Napoleon?  Never!  Towering genius disdains a beaten path.  It seeks regions hitherto unexplored.  It see no distinction in adding story to story, upon the monuments of fame, erected to the memory of others.  It denies that it is glory enough to serve under any chief.  It scorns to tread in the footsteps of any predecessor, however illustrious.  It thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen.  Is it unreasonable then to expect, that some man possessed of the loftiest genius, coupled with ambition sufficient to push it to its utmost stretch, will at some time, spring up among us?  And when such a one does, it will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs.

Distinction will be his paramount object; and although he would as willingly, perhaps more so, acquire it by doing good as harm; yet, that opportunity being past, and nothing left to be done in the way of building up, he would set boldly to the task of pulling down.

Notice that Lincoln divides the "men of ambition and talents" into two groups.   In one group, "many great and good men" can satisfy their political ambition by serving as a congressman, a governor, or a president.  But in the other group, are those who will not be satisfied with filling high political offices in a constitutional republic, because they belong "to the family of the lion, or the tribe of the eagle," who show the "towering genius" of an Alexnder, a Caesar, or a Napoleon.  

These three men overthrew republican governments and claimed the despotic dominance of imperial power for themselves.  Alexander subjugated all of Greece, including Athens, to the Macedonian Empire.  Julius Caesar had himself declared dictator perpetuo of Rome, with all the power of the Roman state concentrated in his person, which meant the collapse of the Roman Republic and the rise of the Roman Empire.  Napoleon Bonaparte overthrew the French Republic in 1804 when he crowned himself the "Emperor of the French."  In speaking about "the family of the lion, or the tribe of the eagle," Lincoln was probably referring to Napoleon:  in designing the heraldic insignia and the official badge of the Empire, Napoleon first chose the lion, but then he changed his mind and chose an eagle with spread wings, because the eagle "affirms imperial dignity and recalls Charlemagne," while also recalling Ancient Rome (Roberts 2014: 347-48).

Napoleon's hereditary Empire was a plebiscitary dictatorship.  In the plebiscite on the establishment of the Empire, the official vote count was 3,572, 329 votes in favor to 2,579 against.

So, Lincoln was warning his audience about the danger to American political institutions of liberty coming from the imperial ambition of an American Napoleonic dictator.  And he advised them that the only way to avoid this danger was for the American People to feel a "reverence for the laws"--for the Declaration of Independence and the Constitution and the laws--that would become "the political religion of the nation," so that the People would never allow a man of Napoleonic ambition to claim dictatorial powers unconstrained by the rule of law.

But then some readers of Lincoln's Lyceum Speech have suspected that Edmund Wilson was right in observing "that Lincoln has projected himself into the role against which he is warning them" (Wilson 1962: 108).  After all, as I have indicated in some previous posts, Lincoln was a man of expansive ambition.  "His ambition was a little engine that knew no rest," as William Herndon said.  As a young state legislator in Illinois, he often became miserably depressed, even suicidal, because he had not yet achieved the greatness that he yearned for.  Joshua Speed--one of Lincoln's best friends--reported to Herndon:

In the deepest of his depression, he said one day he had done nothing to make any human being remember that he had lived; and that to connect his name with the events transpiring in his day and generation, and so impress himself upon them as to link his name with something that would redound to the interest of his fellow-men, was what he desired to live for (Herndon's Life, 172, 422-23).

22 years later, shortly after Lincoln had signed the Emancipation Proclamation, he reminded Speed of this earlier conversation about his ambition for doing something great so that he would be remembered forever, and he told Speed: "I believe that in this measure, my fondest hopes will be realized."

And, indeed, anyone who has ever visited the Lincoln Memorial in Washington, DC, with the imposing statue of Lincoln and the Gettysburg Address and Second Inaugural Address carved into the marble walls, will have to wonder whether Lincoln foresaw this--the mythic grandeur of the Lincoln story--as the only way to satisfy his restless ambition.  Does this mean that he was moved by the Napoleonic ambition for glory, that he belonged to "the family of the lion, or the tribe of the eagle," against which he warned his audience in 1838 in Springfield?

But while Napoleon's ambition could only be satisfied by crowning himself an Imperial Dictator and thus overturning the French Republic, we might argue that Lincoln's ambition did not require that he become a lawless dictator and thus overturn America's Constitutional Republic.  Rather, his ambition was "to link his name with something that would redound to the interest of his fellow-men," which he did by saving the Union, emancipating slaves, and securing for America a "new birth of freedom."

And yet, many historians and law professors have said that Lincoln really did become a presidential dictator in the Civil War by acting outside the laws to prosecute the war (Arnhart 2016: 254-262).  The most commonly noted example of Lincoln's assumption of dictatorial powers outside the law was his suspension of the writ of habeas corpus and his defying a judicial order from Chief Justice Roger Taney declaring that such suspension of the writ was unconstitutional.  Suspension of the writ of habeas corpus is in effect a suspension of the most basic rights of individuals because it allows the government to arrest and detain individuals without the government giving any legal justification for this to a court of law.

But there is a good argument for saying that Lincoln never became a dictator because he acted within the constitutional framework of government, so that he was subject to the checks and balances coming from the Congress, the courts, and popular elections.  We can see that this was true for his suspension of the writ of habeas corpus if we study the case carefully enough to see exactly what happened, particularly in the case of John Merryman that provoked Chief Justice Taney.

After the election of Lincoln on November 6, 1860, the Southern states began debating secession from the Union.  South Carolina was the first to secede on December 20, 1860.  When the war began with the attack of South Carolina on Fort Sumter on April 12, 1861, seven states had seceded.  Virginia seceded on April 17.

When the war started, the U.S. Congress was out of session; and the military situation made it too dangerous for the Congress to come back into session.  So Lincoln had to take command in the war without congressional authorization. 

Washington, DC, was threatened by Confederate armies, disloyal state militias, irregular combatants, and disloyal civilians.  To secure the Capital, Lincoln ordered Union troops to proceed to Washington through Maryland, which was a border state that was deeply divided over the war.  Mobs in Maryland had attacked Union troops.  Bridges and railway lines had been destroyed.  And telegraph lines to the Capital had been cut.  On April 27, 1861, Lincoln issued an order to General Winfield Scott, the Commanding General of the Army, delegating authority to suspend habeas corpus to protect the movement of troops through Maryland. 

John Merryman, a resident of Baltimore, was suspected by military authorities of being involved with a militia group that had destroyed some bridges and railway lines.  At about 2:00 A.M., on Saturday, May 25, 1861, federal military authorities arrested him in his home, and he was locked up at Fort McHenry.  The next day--Sunday, May 26, 1861--Merryman's lawyers presented his habeas corpus petition to Chief Justice Roger Taney at his home in Washington.  Later that same day, Taney issued an ex parte order directing General George Cadwalader, who had command over the military district that included Fort McHenry, to appear the next day before Taney in a Baltimore court room, to explain the legal basis for Merryman's military detention, and to produce John Merryman at that hearing (Ex parte Merryman 17 F. Cas. 144 [C.C.D. Md. 1861] [No. 9487] [Taney, C.J.]).

The next day--Monday, May 27--Taney appeared at the designated Baltimore court room.  Cadwalader did not attend the hearing.  Instead, he sent his aide, Colonel R. M. Lee, who presented a written response from Cadwalader, who made four points.  First, the arrest of Merryman had not been made with his knowledge.  Rather, General William Keim had ordered Col. Samuel Yohe to make the arrest.  Second, Merryman was charged with various acts of treason in supporting the present rebellion against the government.  Third, the president had duly authorized his commanders to suspend the writ of habeas corpus.  Fourth, he requested that the Chief Justice postpone further action on this case until Cadwalader could receive instructions from the President as to how he should proceed.

Since Cadwalader had not produced the body of Merryman as instructed in his order, Taney issued an attachment for contempt of court against Cadwalader, which was to be delivered the next day by a U.S. Marshal.  The next day, the marshal reported back to Taney that when he arrived at Fort McHenry, he sent in his name at the outer gate, but a messenger came back to say that there was no answer to his request, and so he was not permitted to enter the gate.

Taney told the marshal that he had the power to summon a posse comitatus to help him seize Cadwalader and return him for punishment by fine and imprisonment.  But Taney observed, "the power refusing obedience was so notoriously superior to any the marshal could command," the marshal was excused from doing anything more.

Taney then delivered his opinion orally--that the President did not have the constitutional power to suspend the writ of habeas corpus, and therefore that Merryman is entitled to be set at liberty.  Taney elaborated his opinion in writing for delivery to the President, which was filed on June 1, 1861.

Taney cited the one clause in the Constitution that allows for the suspension of the writ of habeas corpus: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Art. I, section 9, clause 2).  Taney argued that this had always been understood as a power belonging to the Congress rather than the President.  And the fact that this clause appears in the Legislative Article I, along with other congressional powers, should make it clear that this is a congressional power.

Moreover, Taney insisted that since the Congress had not suspended the writ, and since the President has a constitutional duty to "take care that the laws be faithfully executed," it is the President's duty "to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the Executive arm."  And so the President should assist the court in enforcing the writ of habeas corpus in the case of Merryman so that he can be released from detention.

Taney then concluded:

In such a case, my duty was too plain to be mistaken.  I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome.  It is possible that the officer who has incurred this grave responsibility, may have misunderstood his instructions, and exceeded the authority intended to be given him.  I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and under seal, to the President of the United States.  It will then remain for that high officer in fulfilment of his constitutional obligation, to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

Lincoln's response to Taney came a month later in his Special Message to Congress of July 4, 1861.  This message was to a special session of Congress called by the President, the first meeting of the Congress since the start of the war in April.

Lincoln argued that the clause in the Constitution allowing the suspension of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it" does not specify that this power belongs only to the Congress.  And the fact that it's designed for violent emergencies--"rebellion or invasion"--that might prevent the Congress from meeting, as was the case in April, it should be evident that often only the President will be in a position to act quickly to suspend the writ if the public safety requires this.  Thus, the Constitution allows either the President or the Congress to suspend the writ if the public safety requires this in a time of rebellion or invasion.

Lincoln's argument to Congress was persuasive enough that the Congress did not act to revoke his suspension of the writ.  A year later, the Congress enacted a law for the congressional suspension of the writ.

It has been common for scholars to say that Lincoln ignored or defied a judicial order from Taney to release John Merryman, and that this may be the only time that any president has refused to obey a direct judicial order of this kind.  This then would be a clear case of a president acting as a dictator in assuming power beyond or against the Constitution and the laws.

But this is a mistake.  Yes, Lincoln and Taney did disagree in their interpretation of the constitutional clause on suspending the writ.  Lincoln thought the Constitution allowed either the President or the Congress to suspend the writ under the specified circumstances--when the "public safety" requires it in response to "rebellion or invasion."  While Taney thought this power was reserved only to the Congress.

And yet it is a mistake to say that Lincoln ignored or defied Taney's judicial order to release Merryman.  This is a mistake because Taney's written opinion was not a judicial order for Lincoln (or anyone else) to do anything.  As Taney's opinion makes clear--particularly, in the last paragraph--he was recommending that Lincoln reconsider his suspension of the writ in the light of Taney's objections.  Taney directed the court's clerk to transmit a copy of his opinion to the President, but he did not order the President to do anything (Tillman 2016).

Taney's opinion of June 1st and Lincoln's Message to Congress of July 4th were both widely published in newspapers, which stimulated a prolonged public debate over the constitutionality of Lincoln's suspension.  And throughout that debate, Lincoln insisted that he was acting within the bounds of the Constitution and the laws, and therefore he was not acting as a lawless dictator.  At no point did Lincoln say that he had the dictatorial power to ignore or defy a judicial order from the Chief Justice of the Supreme Court.  (See Lincoln 1953: vol. 4, 426-441, 531-532; vol. 6: 262-269, 302-303, 428-429; vol. 8; 52, 100; Lincoln 1989: 250-261, 268-269, 455, 467, 501, 635-636, 641).

Now we are waiting to see if Trump will do what Lincoln never did--openly defy the courts in assuming dictatorial powers outside the Constitution that give him despotic dominance.

I will take that up next in my fourth (and final!) post on Trump's unitary executive theory, which will include a list of references for all four posts.

REFERENCE

Tillman, S. B. 2016. "Ex parte Merryman: Myth, History, and Scholarship." Military Law Review 224: 481-540.