It all started with Richard Nixon. It was the summer of 1974, and Watergate was closing in on his presidency. A grand jury had subpoenaed secret recordings of Nixon and his aides that would show the president had been involved in the criminal conspiracy. A judge had ordered Nixon to honor the subpoena. The president’s lawyers faced a daunting task: block the release of those damning tapes.
“Presidential power can be dangerous.”
Led by Boston trial attorney James St. Clair, Nixon’s legal team cooked up a theory that rejected nearly 200 years of consensus about the separation of powers and the Constitution. They argued the president controls the entire executive branch such that no individual member of that branch—including the federal prosecutor pursuing Watergate—can take any action that the president disagrees with. In short: The executive branch, c’est Nixon.
That July, St. Clair made his case in Supreme Court oral arguments, that no federal prosecutor could pursue any lawbreaker if the president didn’t wish it, and that the attorney general himself is “nothing but a surrogate for the president.” Further, St. Clair argued, because the dispute over the tapes was taking place within the executive branch between Nixon and a Justice Department prosecutor, it was out of courts’ reach. The hearing lasted three hours. Newspapers published pages of transcripts, as the nation anxiously waited to see what kind of presidency the court would embrace—one subject to the criminal justice system, or one above it.
Two weeks later, the justices rejected Nixon’s arguments. Writing for a unanimous court, Chief Justice Warren Burger warned that under Nixon’s theory, the US would risk losing its “workable government,” and affirmed that “the separate powers were not intended to operate with absolute independence.” Nixon abided by the order, and the release of the tapes sealed his fate. One recording captured Nixon conspiring to get the FBI to stop its Watergate investigation—obstruction of justice that, under Nixon’s theory of executive power, would not only have been legal, but possibly even beyond the review of any court. But Nixon had failed. Two weeks later, he resigned.
“When Nixon lost eight-nothing, there was no interest in that argument,” says Jed Shugerman, a Boston University law professor and historian who has been examining St. Clair’s briefs for an for an upcoming book on executive power.
“The lesson for most of the country of Watergate is that presidential power can be dangerous,” Shugerman explains. But the lesson that Republican lawyers took, he adds, “was that checks and balances are dangerous.”
Over the next two decades, thanks to the diligent work of Ronald Reagan’s administration and conservative law professors, Nixon’s last-ditch efforts to salvage his criminal presidency by expanding his control from a fringe theory to an article of faith on the right. Americans’ conception of presidential power shifted, with Democrats, too, eventually coming to embrace more presidential authority.
If today’s Supreme Court had heard the Nixon case, it would have sided with the disgraced ex-president, and Nixon never would have resigned. Now, the court’s embrace of what came to be known as unitary executive theory is powering President Donald Trump’s attempt to manifest what Nixon only dreamed of: an executive imbued with absolute control over the government, unrestrained by Congress, and beyond the authority of the courts. As Trump’s second term power-seeking crosses the lines of law, the Supreme Court will be forced, again and again, to determine the parameters of executive power—and, with those decisions, what kind of government we have and what kind of country we are.
America’s slide from divided government to today’s kind of president-decides-all government was not ordained by the Constitution; the founders didn’t slip it in purposefully or accidentally. It was an invention, mostly of political design. And though its modern roots date to Nixon, it was only truly born in the 1990s. In other words, it’s not a time-tested tradition: it’s a youngish Millennial.
Today, there are multiple cases bouncing around the federal courts that will ultimately force the Supreme Court to either fully implement the unitary executive theory, or to try and cabin it before its logical ends result in a form of autocracy.
The Court will be forced to determine the parameters of executive power—and what kind of country we are.
A pair of cases that test Congress’ ability to create independent agencies insulated from politics against the president’s purported ability to remove any executive branch official have arisen out of the Trump’s attempts to remove Democratic appointees to the National Labor Relations Board and the Merit Systems Protection Board in violation of the law. There are cases about Trump’s ability to halt funding already approved by Congress, raising the question of whether the president’s power over the executive branch overrides the legislature’s power of the purse and other rules it establishes for agencies; of these, so far, Trump has won some and lost some.
Then there is the case of Kilmar Abrego Garcia, in which Trump is claiming the power to remove people from the United States to a foreign prison known for human rights abuses, and the power to leave them there indefinitely—even if, as in Abrego Garcia’s case, the removal was mistaken, unlawful, and lacked due process. The courts, the administration insists, are powerless to request Abrego Garcia’s return because that would infringe on the president’s foreign policy authority—an executive power Trump claims is all his. If the Supreme Court ultimately agrees, then the president’s executive authority as laid out in Article II of the Constitution is greater than his own citizens’ fundamental rights as guaranteed in the Bill of Rights—a form of government one might call a monarchy or an autocracy, but not a democracy.
“Article II is not supreme over the Bill of Rights,” argued David French, the conservative columnist and lawyer, when discussing Abrego Garcia’s case on Advisory Opinions, a right-leaning legal podcast. If Trump can dump people in foreign prisons in violation of their fundamental rights, he added, then “the Bill of Rights has now been officially hacked.”
French criticized fellow conservatives for getting “so high on their own supply” when it comes to unitary executive theory that they “forget that they’re basing all of this on a pretty vague sentence.” It’s true; these arguments over presidential power spring from just a few lines in Article II of the Constitution: “The executive Power shall be vested in a President” and the president “shall take Care that the Laws be faithfully executed.”
Unitary executive theory is most often discussed when debating which officials the president can remove. In order for a president to be vested with the executive power and to execute the laws, proponents of the theory argue, the president must be able to remove any official who isn’t implementing his policies. They believe this gives the president the power to fire the heads of independent agencies; some even say it applies to civil servants who carry out the functions of government.
The argument has an appealing logic: we elect a president to enact an agenda, so he should be able to oversee a team willing to carry it out. But the ability to remove independent agency heads and civil servants leads to dark places. Independence ensures that vital democratic functions—from criminal prosecutions and monetary policy, to regulation of elections and the media—are insulated from politics. One need not imagine how a president could weaponize these agencies to target enemies, shut down unfriendly media, and tank the global economy; Trump is already attempting each, with various levels of success.
Trump issued orders declaring “Notice and comment is unnecessary,” illegally replacing Congress’ rules by fiat.
“The unitary executive theory is a pathway to autocracy,” says Syracuse University law professor David Driesen, whose 2021 book, The Specter of Dictatorship, details the dangers of centralizing power in a single leader. “In every functional democracy I’m aware of, there is a civil service that can’t be easily fired, and there also are pockets in the government where even the top levels are somewhat independent of the head of state.”
In countries like Poland, Hungary, and Turkey, which have all recently experienced democratic backsliding, Driesen says civil service purges were an early step in the project of replacing the rule of law with autocracy. “The unitary executive theory is important,” he says, because it “legitimates this kind of thing in the minds of the elite.”
The implications of the theory, however, reach far beyond personnel. Congress creates executive branch agencies and delegates rulemaking authority and enforcement to them. But under a maximalist unitary executive theory, no agency could put out a rule the president disliked, replacing agency expertise with the whims of the White House—and Congress’ will for that of the president. Last month, for example, Trump issued a series of executive orders to terminate environmental regulations. One included the line, “Notice and comment is unnecessary because I am ordering the repeal”—illegally replacing Congress’ rules governing the approval and rollback of regulations with a system of presidential fiat.
The further you take the logic of the unitary executive theory, the more absurd and dangerous it becomes. If the president is in full control of the executive branch, neither Congressional investigations nor court orders could pierce his authority. Just as Nixon had argued, the courts cannot reach into a dispute that is wholly within the sphere of a president’s executive authority. Again, the Abrego Garcia case illustrates the point, where administration lawyers have argued the president’s foreign policy powers are so vast that they rule out all court review while swallowing the fundamental rights of all other people, including US citizens.
Last July, the Supreme Court granted presidents vast criminal immunity for official acts; even official communications could not be used as evidence in an investigation of the president. (If only Nixon had been so lucky.) In Trump v. United States, the justices laid out a maximalist interpretation of the unitary executive theory. The decision “works by saying the President is immune from the operation of ordinary criminal law,” says Kim Lane Scheppele, a Princeton expert on the rise and fall of constitutional governments. “It’s basically saying Congress cannot constrain the President with criminal statutes. So then why should Congress be able to constrain the President with appropriation statutes or anything else? That’s the direction that this unitary executive theory expands into: That the President contains all the executive power, so he can override or direct all the agencies from the top.”
Indeed, the entire constitutional system starts to break down under a maximalist interpretation of presidential power. “Congress was supposed to be the most powerful office,” says Lindsay Chervinsky, a presidential historian and the executive director of the George Washington Presidential Library. “The President was very much seen as the executor of the laws, but Congress was always seen as the locus for where most of these policies originated.” She added, “If the President has the power to set all policy, then there’s no point to having Congress.”
“If the President has the power to set all policy, then there’s no point to having Congress.”
The framers wanted to escape a monarchy, not create one, and that founding vision held firm for some 150 years. Certainly various presidents and political movements expanded executive power, but they never fleshed out a claim as bold as the unitary executive theory. As the federal bureaucracy grew in the 20th century, presidents sought to consolidate their hold over a more powerful executive branch. But they did so with Congress’ consent. Rather than claim new Constitutional authorities, presidents’ would turn to Congress for authorization. Even Nixon, who aggressively sought to grow his control, often did so through Congressional grants of authority.
It was the Reagan administration that took a major step toward replacing Congressional authorization with presidential control. In February 1981, Reagan issued Executive Order 12,291, which funneled agency rulemaking through an approval process in the White House’s Office of Management and Budget. It may sound benign today, but as Ashraf Ahmed, Lev Menand, and Noah Rosenblum argued in the Harvard Law Review last year, it was a revolutionary step in asserting presidential control over agency actions. Final say on major rules no longer rested with the Senate-confirmed agency chiefs but with mid-level White House hires. To justify this move, the administration relied on the “Take Care” clause, transforming it from a duty to implement Congress’ laws to the authority to veto agency rulemaking. To back up this argument, it cited disavowed portions of a 1926 Supreme Court ruling, Myers v. United States, over the firing of the postmaster general—resurrecting a decision that had been walked back by major precedents to undergird the creation of the unitary executive theory.
In hearings, Al Gore, then a Tennessee senator, accurately blasted Reagan’s executive order as illegal. “Congress never intended to delegate its power, given to it by the Constitution, to the executive branch in such a manner,” he charged.
But the Supreme Court, which had rebuked Nixon the previous decade, began inching the law closer to what would become unitary executive theory. While Chief Justice Burger had told Nixon to take a hike, under Reagan he wrote two opinions that limited Congressional authority and found new Constitutional grounds for executive control. His opinions exhibited “a casual disregard for the long history of interbranch accommodation that had built out the administrative state” write Ahmed, Menand, and Rosenblum, and created “a core of executive branch administrative authority that Congress could not touch.”
Burger left the court in 1986 and was replaced by Antonin Scalia, a former Reagan Justice Department official with even more capacious views of presidential power. Within two years, he would write the founding document of unitary executive theory, in Morrison v. Olson, a 7-1 case where the rest of the court sided with Congress, upholding a law it had passed to authorize independent special counsels that could investigate executive branch officials.
“The presidential immunity case is the unitary executive theory on steroids—and then on speed.”
In his lone dissent, Scalia rejected the idea, sketching out a new and expansive vision of “the unitary executive.” Relying on the words “shall be vested,” he argued the Constitution put all executive power in the president’s untouchable bailiwick.
“It is the proud boast of our democracy that we have ‘a government of laws, and not of men,’” Scalia’s first line read. He was warning, he explained, that if the president did not have full control over the executive branch, his powers would be mediated by the justices charged with putting limits on them, rather than the Constitution or law.
But the opposite is actually true, and explains the danger of the theory: It removes presidents from the bounds of the law and places all executive functions in the hands of just one person. “The vision of the founding is that the president was to faithfully execute the law. That’s what the Constitution says,” says Driesen. “That’s what the rule of law is all about.”
If the president’s executive domain is exclusively his, however, we move from the administration of the law and into the administration of the president’s wishes. Under Trump, the difference between the two is extreme, and growing wider. Does he have to spend money Congress appropriated? He says he does not, if it doesn’t accord with his priorities. Can he simply decree that a law will not be enforced—as he has done with the TikTok ban—even though Congress passed it, the president signed it, and the Supreme Court upheld it? “As the court pushes this theory further and further in the context of Trump, what you’re doing is liberating the bureaucracy from the rule of law,” says Driesen.
Within a few years, Scalia’s outline of unitary executive theory was being fleshed out by conservative law professors. In a 1994 Yale Law Journal article, Steven Calabresi, the co-founder of the Federalist Society, and Saikrishna Prakash defined unitary executive theory essentially as Nixon’s watergate argument: the president can direct the action of anyone in the executive branch, and any independence is unconstitutional.
While Calabresi and Prakash assembled evidence stretching back to the founders that they argued would permit no disagreement on historical grounds, unitary executive theory was actually a product of its time. “From the middle of the century until 1994, [Republicans] thought they’d never win Congress or the Senate,” explains Rosenblum, a law professor at New York University Law School, so they had to find a way to explain why the president had significant power to implement the GOP agenda. A big part of that agenda was deregulation.
In 1994, Bill Clinton held the White House when Republicans finally swept Congress, incentivizing the Democratic president to embrace the executive authorities carved out by Reagan, growing his own power as he pursued an anti-regulation agenda that elements of his party had likewise adopted. “This is really a long standing battle against the administrative state, against the New Deal regulatory state,” says Shugerman. How convenient that rather than carrying out Congress’ regulatory agenda, under a unitary executive, as Scheppele puts it, “the agencies are just the instruments for carrying out the President’s will.”
Unitary executive theory has smoothed the way for Trump, like the water in the frog’s proverbial pot.
When John Roberts, Samuel Alito, and Brett Kavanaugh—attorneys who served in Republican presidential administrations—became Supreme Court justices, the idea of an ultra-powerful executive went from theoretical to the law of the land. In Reagan’s DOJ, Alito had concocted new strategies for increasing executive power. Roberts did similar work, drafting a memo that said that the president had “inherent” powers beyond those specified by the Constitution.
In 2010, not long after joining the court, Roberts and Alito began to undo Humphrey’s Executor, an seven-decade old unanimous decision that had allowed Congress to create independent agencies run by multiple commissioners who the president can only remove for “good cause,” with Roberts writing a 2010 opinion that reduced removal protections for a Securities and Exchange Commission accounting board.
Kavanaugh had worked for President George W. Bush, who cited the “unitary executive” in his signing statements outlining how he intended to enforce new laws passed by Congress and used it in his prosecution of his War on Terror. In 2018, Kavanaugh was confirmed to the court, eager to join their battle, having recently named Morrison as the precedent he’d most like to overturn. Two years later, the justices found that the design of the Consumer Financial Protection Bureau, which Congress set up to be run by a single director with removal protection, was unconstitutional.
The July 2024 immunity decision, Trump v. United States, took these theories of executive control and turbocharged them. “Presidential immunity basically says Congress’ statutes don’t apply to presidential official acts, and this is beyond the domain of the courts to enforce,” says Shugerman. “The presidential immunity case is the unitary executive theory on steroids—and then on speed.” As Harvard Law professor Jack Goldsmith maintains, the decision’s “main significance” is not the way it bars prosecuting presidents, but “its expansive discussion of exclusive presidential powers.”
There are academic debates about whether unitary executive theory, taken to its logical endpoint, will deliver an authoritarian system of government to the United States. Some scholars believe so, while others say ending democracy would require a lawless power grab beyond what the theory itself grants presidents. “In popular discourse, often people use the term unitary executive to just indicate the idea that the president should have a lot of power,” says Ilya Somin, a constitutional scholar at George Mason University’s Antonin Scalia Law School. “However, at least in principle, unitary executive theory is compatible with the idea that the scope of executive power is relatively narrow.”
Rosenblum agrees with Somin that while unitary executive theory gets you to a very powerful, generally unaccountable president, it is one that could still operate within the constraints of the Constitution. Unitary executive theory, such scholars argue, shouldn’t allow a president to ignore spending bills signed into law, because the president must faithfully execute the laws, and the power of the purse explicitly is not an executive power. Even Calabresi has recently argued that Trump’s new tariffs are an unconstitutional power grab: “There is no inherent, prerogative power of the President to raise our taxes by unilaterally imposing tariffs on our closest allies and friends.” Ultimately, the Supreme Court is likely to decide this question too.
“The net effect of his actions has been an attempted constitutional coup d’etat.”
But a unitary executive theory that goes so far as to claim complete control over the executive branch could, arguably, put an end to Congressional actions that need to be carried out by the executive branch. Whether this is described as a democracy or a monarchy or something else, the result is the same: a president in full control of the government.
Whether the unitary executive theory goes all the way there or stops short of it, it’s true that it has not only justified the expansion of presidential power over the last four decades, but it has helped transform how the government operates and what Americans expect of the president. It smoothed the way to Trump’s revolution, like the water in the frog’s proverbial pot.
In 1974, former Supreme Court Justice Abe Fortas warned that Nixon’s Watergate crime was more than the lawbreaking he committed. In a speech that spring at the University of Washington, he charged that it was Nixon’s reimagination of presidential power that threatened the country. “The net effect of his actions has been an attempted constitutional coup d’etat,” he declared, “a fundamental alteration—a subversion—of our basic constitutional structure.”
Fortas laid out a vision of the presidency that has been overridden in the 41 years since: a president who must act according to the law, who cannot supplant the decisions of agency heads with his own policies, and who must answer to criminal laws if they appear to be broken. “If we permit a President to override the political restraints of our Constitution, to overrule the Congress, to ride roughshod over the limits upon his powers to govern which are prescribed by our Constitution, we invite a Presidency which may also ride roughshod over the sanctity of our homes and the privacy of our persons,” he predicted. “By the grace of God and good fortune, we have been saved—this time.”
It’s a chilling speech, because it sees clearly the quagmire we are now in. What it cannot know is if there is a way out this time.
This post has been syndicated from Mother Jones, where it was published under this address.