“THEY HIT me and I hit them back harder and they disappear,” Donald Trump said in 2016, during his first presidential campaign, explaining an ethic developed in New York’s savage real-estate market. That ethic in a nutshell explains the early Trump administration’s torrent of attacks on the federal bureaucracy that Mr Trump believes, with some justification, sought to derail his first term.
But of course larger passions motivate Mr Trump’s Caesarean presidency: his will to power, extreme demands of loyalty, indifference to legal constraints and desire to eliminate all personnel or policy friction between his impulse and executive action. His subordinates have wedded these features of his personality to a theory of presidential power—the unitary executive—that is guiding his second administration’s unprecedentedly disruptive executive orders and actions.
The unitary executive is an American conservative response to the abhorred New Deal administrative state. For decades beginning in the 1930s, conservatives thought the proper remedy was a legally constrained presidency. By the 1970s they had come to realise that the president and the bureaucracy were distinct, and that the latter could be tamed only “through the action of a powerful president who is willing virtually to go to war within his own executive branch in order to carry out his mandate”, as Jeffrey Hart put it in an influential essay in the National Review in 1974.
Richard Nixon started this battle by claiming an executive power to impound (that is, not spend) funds appropriated by Congress and with a relatively tepid plan to replace career civil servants with political appointees. But Watergate intervened.
The administration of Ronald Reagan implemented unitary executive theory more robustly. The idea is based on the constitution’s vesting of “the executive Power”, all of it, in the “President of the United States”. The most important implications are that the president has the “power to remove subordinates in the executive branch or to direct their actions”, as Steven Calabresi and Christopher Yoo, two law professors, wrote in their definitive treatment of the Reagan-era conception of the theory.
The Reagan administration deployed this theory to corral the bureaucracy in ways that were controversial at the time but that now seem relatively benign: imposing cost-benefit analysis on executive-branch agencies, expanding the power of the Office of Management and Budget over agency regulations, and weakening regulations through traditional means in areas ranging from the environment to consumer protection.
Unitary theory also held that the president could terminate at will members of so-called independent agencies—such as the Federal Trade Commission and the National Labour Relations Board—which Congress had sought to protect with for-cause removal restrictions. But Reagan never exercised this power.
The unitary-executive vision outlived the Reagan administration through the intellectual entrepreneurship of the Federalist Society, which was formed with help from Antonin Scalia, who would later become a Supreme Court justice.
And it seeped into Supreme Court jurisprudence through Scalia’s prominent opinions and the influence of two young Reagan lawyers now on the court: John Roberts, the current Chief Justice, and Samuel Alito. Mr Roberts has penned opinions that expanded the president’s constitutional power to remove subordinate officials, as unitary theory contemplates. And he wrote last summer’s Trump v United States, the presidential-immunity decision that contained some of the most robust statements on the unitary executive in the court’s history.
The Trump administration is building on this tradition but extending it in novel ways. White House control over the Justice Department is a prime example. From the post-Watergate presidency of Gerald Ford through to Joe Biden’s administration, including the first Trump presidency, the executive branch was governed by robust norms that restrained the White House from influencing Justice Department investigations and prosecutions. And the Justice Department would often interpret the constitution and federal laws to constrain presidential action.
In his second term, Mr Trump has repudiated this arrangement and is shaping the Justice Department to mirror his will. Every senior nominee to the Department, including Attorney-General Pam Bondi, is a Trump devotee and former personal lawyer of his. It is unclear whether the president’s executive orders are even being vetted by the Justice Department, as they traditionally have been. Several of them defy past Justice Department legal constraints.
The formal policy on law enforcement today is that the president, not the Justice Department, is in charge, and that he and senior White House staff can contact the Department about enforcement decisions. In the past month the Department has dropped prosecutions against several Trump loyalists, including Eric Adams, the mayor of New York City. It has also fired or is investigating those within its ranks who have worked on cases against Mr Trump.
The administration also cleaved to unitary-executive theory in a new executive order this week asserting dominion over independent agencies, and when it disregarded congressional restrictions to fire a member of the National Labour Relations Board and the head of the US Office of Special Counsel. These are the least controversial of Mr Trump’s terminations since they are arguably justified under the Supreme Court’s recent case law. Mr Trump seems to have gone beyond those precedents, however, in canning career bureaucrats. His demands of extreme loyalty, and his efforts to make the lives of many career bureaucrats so miserable that they are cowed into submission or quit, are also in accord with unitary-executive theory but without precedent.
If the Trump administration had stopped there, one might see its actions as an adjustment of the theory to Mr Trump’s bombastic personality and goals. But it has gone much further and engaged in novel executive-branch actions that have only loose connections to unitary theory or are perversions of it.
First, Mr Trump has claimed an unprecedented power not to enforce any statute he simply does not like. A remarkable example is his executive order compelling the attorney-general not to enforce the congressional ban on TikTok that the Supreme Court upheld the week before he re-entered the White House, and instructing her to advise private firms that they can ignore the ban with impunity. Another example is Mr Trump’s asserted power not to spend money appropriated by Congress. This position is like Nixon’s, with one big difference: after Nixon wielded the power, Congress passed a law compelling the president to spend, with a few exceptions.
Mr Trump’s claimed discretion to not enforce statutes finds a whisper of support in the unitarian Trump v United States decision, but in reality goes far beyond it. The claim turns his constitutional duty to “take care that the Laws be faithfully executed” on its head and undermines Congress’s core constitutional power. And yet so far Republicans in Congress have mainly watched this constitutional inversion in silence.
Second, the Trump administration is going beyond firings and loyalty tests with outside-the-box efforts to incapacitate the federal bureaucracy. The starkest example is the Department of Government Efficiency, overseen by Elon Musk. Whatever the precise goals of DOGE, which remain unclear, to implement them it appears to be infiltrating agencies to identify downsizing opportunities and to gain control of payment systems. A complementary tactic, as Mr Musk’s X feed makes plain, is to demoralise and publicly discredit disfavoured agencies.
Third, the sheer number of executive orders and actions that either clearly violate current law or raise serious legal questions is stunning. “He who saves his Country does not violate any Law,” wrote Mr Trump last week, echoing Napoleon.
Fourth, all of the Trump tactics, lawful and unlawful, are spawning chaos, fear and dislocation within the executive branch that collectively seem to be a goal in itself. The entire administration seems unconcerned with this tumult, and indeed to revel in it as evidence of success.
This is all far beyond what Hart had in mind with a president “willing virtually to go to war within his own executive branch”, or what Reagan-era unitary executive theory entailed. And one month into the second Trump presidency, it is very hard to see where it ends.
One thing does seem clear: Congress under the control of Republicans who are under the control of Mr Trump will provide little if any check on the administration in at least its first two years. And so the check, if there is to be one, will come from the third branch, the federal courts, and ultimately from the Supreme Court.
This, however, is a court with a conservative majority solidified by three Trump appointments in his first term. That such a bench is the main remaining constraint on Mr Trump’s attack on the government raises two ironies.
The first is that Chief Justice Roberts, Justice Alito, Justice Clarence Thomas and the younger and newer conservative justices appointed by Mr Trump, all weaned on unitary executive theory, will be deciding the fate of the theory under Mr Trump. They will be inclined to uphold some of his actions that hew close to traditional unitary theory, such as presidential control over independent agencies. They may be less willing to go along with his broader defiance of settled legal constraints in the name of executive power.
Which is why so many in America have been so frightened by rhetoric from the administration expressing sharp disrespect for early federal-court rulings against it, and insinuations that the administration might defy judgments. If Mr Trump took that unprecedented step, and got away with it, the nation would be in the much-feared, though prematurely proclaimed, constitutional crisis.
There are signs he will not go that far. One is that he himself disclaimed last week any interest in judicial defiance. “I always abide by the courts” and “will appeal” any losses, he said. Mr Trump does not always do what he says, of course, but another sign came in a footnote to a Justice Department filing on February 16th in connection with a case involving one of the president’s terminations. The “Executive Branch takes seriously its constitutional duty to comply with the orders of Article III courts,” it said, in a remarkable bow to judicial supremacy.
At the end of the day there is no legal force that can make a president comply with a Supreme Court decision. What fosters compliance is the belief in the legitimacy of decisions, including those one disagrees with, and the related belief that an act of defiance would result in severe political punishment and possibly economic crisis.
This is where the second irony emerges. Progressives in America have for the past decade, through means subtle and unsubtle, been attacking and seeking to delegitimise the Supreme Court in response to its overturning of Roe v Wade and other conservative rulings. Representative Alexandria Ocasio-Cortez, for example, urged Mr Biden to ignore federal court rulings, as did some prominent legal scholars.
Now that same court is the main institution standing between Mr Trump and lawlessness. This calls to mind Aesop’s fable of the old man, exhausted by age and toil, who wished for death but when Death appeared quickly changed his mind and asked only for help carrying his load. ■
Jack Goldsmith is a professor at Harvard Law School. He served as the Assistant Attorney-General in the Office of Legal Counsel in 2003-04 under President George W. Bush. He writes a newsletter, Executive Functions, about American presidential power.