The Specter of Dictatorship Behind the Unitary Executive Theory

David Driesen

July 20, 2021

Environmentalists have complained for years about presidential control of the administrative agencies charged with protecting the environment, seeing it as a way of thwarting proper administration of environmentally protective laws. But the U.S. Supreme Court in two recent decisions — Seila Law v. CFPB and Collins v. Yellen — made presidential control over administrative agencies a constitutional requirement (with limited and unstable exceptions) by embracing the unitary executive theory, which views administrative agencies as presidential lackeys. My new book, The Specter of Dictatorship: Judicial Enabling of Presidential Power, shows that the unitary executive theory is not only bad for environmental policy, but a threat to democracy’s survival, upon which environmental policy and all other sensible policy depends.

In The Specter of Dictatorship, I trace the modern movement toward a unitary executive back to former President Ronald Reagan’s executive order establishing centralized review of agency decisions by the White House Office of Information and Regulatory Affairs (OIRA). That order undermined the rule of law by catalyzing gross violations of statutory deadlines and legally dubious compromises with OIRA, which habitually seeks to weaken environmental standards.

President Trump carried this further in his 2:1 executive order, which instructed agencies to ignore the law’s instructions to protect people from environmental harms and threats to their health and safety, by substituting his personal goal of protecting regulated firms from any costs. In its wake, the Trump administration lost an astonishing 77 percent of its environmental cases.

The Specter of Dictatorship shows that elected autocrats in Hungary, Turkey, and Poland created the sort of chief executive control over administration that the Supreme Court endorsed in Seila Law and Collins to undermine the rule of law more broadly, to tilt the electoral playing field in favor of the autocrat and his party, and to shrink the space for public debate. In these countries, autocrats, and the parties that support them, established head of state control over key agencies like prosecution services, electoral commissions, and media authorities, by restructuring agencies to allow the head of state to oust opponents of the regimes from their government posts and put loyalists in their place. With that accomplished, these state organs (and others) became tools for entrenching the ruling regime.

In all of these countries, the prosecution service protects corrupt regime supporters from investigation and prosecution. These governments, conversely, use prosecution as a tool to undermine and suppress political opposition. For example, under Viktor Orbán, Hungary’s strongman, the prosecution service commonly announces corruption investigations against regime opponents on the eve of elections but drops charges after the elections to evade judicial review. The announcement of a corruption investigation, however, often discredits targeted candidates and leads to electoral losses for the opposition.

The media regulators, once robbed of their independence, use economic pressures and licensing to bankrupt or shut down opposition media and bolster friendly news outlets. And electoral commissions, once taken over by regime supporters, tilt elections in the favor of the ruling party.

In short, elected autocrats seeking to destroy democracies do so largely by centralizing their control over administration and using that control to cement their power.

But the U.S. Supreme Court blissfully ignores the inconvenient truth that the unitary executive theory provides a pathway to autocracy. In Seila Law, Justice Roberts’ majority opinion treats giving the president the right to fire an agency head for political reasons as an essential tool for allowing the president to “take care that the law be faithfully executed,” as the Constitution requires.

Neither the majority nor the dissent even consider the possibility that the president can use the authority to remove officials for political reasons as a tool to undermine the rule of law. That omission is rather shocking, because at the time of decision, President Trump was using removal authority for just that purpose — firing government officials who testified truthfully about his dealings in Ukraine, inspectors general who might expose his regime’s corruption, and leaders in the Department of Homeland Security who respected legal limits on the president’s authority to deny entry to asylum seekers (for example). Trump’s Ukraine adventure followed a failed effort to get the Department of Justice to investigate Joe Biden and other Democratic leaders, following the Orbán model. Later, however, Trump succeeded in securing an investigation of Joe Biden’s son Hunter.

The Specter of Dictatorship explains that some of Trump’s predecessors had asserted the right to fire government officials for political reasons, which the Supreme Court has now constitutionalized, to undermine the rule of law and tilt elections. Andrew Johnson, for example, fired numerous government officials, including postmasters and Treasury officials, in order to defeat laws requiring protection of the rights of newly freed blacks and Union supporters in the South. His firing of Secretary of War Edwin Stanton led to his impeachment, but Johnson narrowly avoided removal partly because he reluctantly agreed to install a responsible official in Stanton’s place, thereby convincing some senators that the rule of law might survive Johnson’s assault.

Richard Nixon sought to tilt the electoral playing field by ordering a break-in to steal files from the Democratic National Committee and tax audits of political opponents (using tactics autocrats employ as they undermine democracies in other countries). Nixon sought to cover up these efforts by abusing his removal authority to get rid of Attorneys General who insisted on protecting an independent counsel investigating Nixon’s transgressions from interference.

The Supreme Court’s embrace of politically motivated removals of agency officials, combined with its blindness to the power unconstrained removal gives to secure an autocracy, leaves our democracy in a dangerous place. We might be one lost or stolen election away from losing it permanently. And if a government by, for, and of the People perishes in the United States, whatever capacity we may have to address the climate crisis and other challenges we face will vanish.

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