The Law: The Unitary Executive Theory and President Donald J. Trump

Abstract

The unitary executive theory first went mainstream during the George W. Bush administration as the president's justification for exercising broad executive powers. Barack Obama did not explicitly embrace the unitary executive theory, but he followed in Bush's footsteps by expanding and augmenting presidential power in new and questionable ways. President Donald J. Trump's campaign rhetoric, coupled with an early, controversial executive order on immigration, suggest the possibility of continued expansions of executive power. Thus, the time is right to examine the unitary executive theory anew. Here, we define the theory as understood by its advocates and then offer a critique. Finally, we highlight the theory's impact on the evolution of presidential powers over the past 16 years and set the stage for evaluating what may come next.

The Law: “Witch Hunts” and the Rule of Law: Trump, the Special Counsel, and the Department of Justice

“…It is important to remember, however, that the theory also has much to say about presidential control of the law enforcement function and the desire of its proponents to have the president gain control of the modern administrative state. It was first developed by Reagan administration lawyers, who originally “envisioned a more limited unitary executive who could nevertheless exercise total control over the executive branch” (Crouch, Rozell, and Sollenberger , 565). This view was held by a single member of the Supreme Court in 1988 when it was asked to rule on the constitutionality of the independent counsel provisions of the Ethics in Government Act in Morrison v. Olson () .…”

“…The rise of the theory of the unitary executive has been well documented and critiqued elsewhere (Barilleaux and Kelley 2010;Burke 2016;Calabresi and Yoo 2008;Crouch, Rozell, and Sollenberger 2017;Dodds 2019). It captured the most popular attention during the George W. Bush administration's claims about presidential powers in foreign affairs to justify actions taken in the "War on Terror" (see, e.g., Yoo 2005).…”

Donald Trump and Institutional Change Strategies

“…Of the four strategies, Trump seems most comfortable using opportunistic conversion via his broad discretionary powers in the face of weak veto opportunities. This is perhaps unsurprising given Trump's embrace of strong executive power and unitary executive theory (Crouch et al 2017). One need not dig far to find an example: pulling out of the Paris Climate Accord and the Iran nuclear deal, imposing steel and aluminum tariffs, and ending Obamacare subsidies, among others.…”

Commissioned Book Review: S Skowronek, JA Dearborn and D King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive

“…The solution to the state depth that frustrates Presidential resolve is a “unitary executive” (p. 21) whereby Presidents command the resources of the Executive branch, but do not remain accountable to it (pp. 5, 8) (Crouch, Rozell and Sollenberger 2017).…”