This post was originally published on Legal Planet. Reprinted with permission.
At its core, the unitary executive theory (UET) says that the president can fire anyone in the executive branch for any reason or no reason. Although the UET purports to be based on originalism, it has become clear that the U.S. Supreme Court has no interest at all in examining the history. Supreme Court conservatives think complete presidential control is simply the ideal way to run the government. The deep flaws in that theory are now becoming apparent.
Critics of the unitary executive theory have tended to focus on why some decisions about broad government policies should be insulated from political influence. For example, we might want rules about securities markets to be decided by experts, not politicians. That may be true, but it doesn’t turn out to be the real problem with direct presidential control. The UET’s worst effects are in two other areas.
The first involves case-by-case decisions like whether to approve a merger or grant a broadcasting license. Politicizing these decisions has been a disaster because they’ve given the president credible threats to use against any company that crosses him.
The second serious effect relates to internal guardrails against government abuse. There’s an agency in charge of protecting government employees from arbitrary firings and demotions. If that agency is at the beck and call of the president, protections against the politicization of the civil service are meaningless. This means that none of us can be assured of impartial application of the law, or even that the government will make an effort to follow laws it doesn’t like, such as the Clean Air Act.
The rhetoric of the Supreme Court’s conservative majority is almost as damaging as its actual rulings. The Court says that the president is the only person who constitutes an entire branch of government, that everyone else in the executive branch is merely his stand-in, and that the president has unique legitimacy as the only officer elected nationwide. This rhetoric actively encourages presidents to use all the power of government, all the time, to achieve their political goals.
Since Watergate, there’s been a norm against presidential interference with criminal investigations and prosecutions. But if everyone in the Justice Department is just an extension of the president’s will, it’s hard to see why the president shouldn’t just roll up his sleeves and make the decisions himself. We’ve all seen the consequences of that in Donald Trump’s vengeance campaign against perceived enemies like James Comey and Letitia James.
You would think that some of the Supreme Court conservatives would see the flaws in their ideas about how to run the government. Sadly, there’s no evidence they’ve seen the light. As recent oral argument indicated, they seem to be willing to make an ad hoc exception for the Federal Reserve. But other than that, they seem happy to allow a single person’s whims to control the government.
We’re going to need to figure out some new approaches if we want to have a government that implements the law in a rational, even-handed way.
