The President's Prerogative

Washington has a dirty secret that both political parties would rather you not think about. The President of the United States, the only person in the executive branch elected by the whole nation, does not actually control the executive branch. Not fully. Not really. Not in the way the Constitution intended. Somewhere between the New Deal and the Great Society, we built a shadow government of unelected, unremovable officials who write rules, interpret laws, and enforce policies with near-total independence from the one person who answers to the voters. And that is not a technicality. That is a constitutional crisis hiding in plain sight.

The chain of command that was supposed to be

Article II of the Constitution is remarkably short on specifics. It vests the executive Power in a single President. It commands that he shall take Care that the Laws be faithfully executed. And it gives him the power to appoint officers of the United States with the advice and consent of the Senate. But what about removal? The Constitution never explicitly says the President can fire his own subordinates. The silence was not accidental. The Founders understood something that modern Washington has spent a century forgetting: the power to remove is the power to control. Without it, accountability is a fiction.

Alexander Hamilton made this case directly in Federalist No. 77. He wrote that the President's power to remove subordinate officers was essential to the responsibility of the chief magistrate. If a Cabinet secretary or agency head ignores presidential directives or behaves corruptly, the President must be able to dismiss them. Otherwise, whose fault is the failure? The President cannot be blamed for a subordinate he cannot control, and if he cannot be blamed, the whole system of democratic accountability collapses. This was not a minor point. It was the central insight of the constitutional design for the executive branch. One man, one chain of command, one point of accountability to the American people. Then came the progressive era.

How the bureaucracy made itself untouchable

The story of the permanent bureaucracy's rise is the story of good intentions paving a road to concentrated, unaccountable power. In the late 19th century, the civil service reform movement rightly sought to end the spoils system, the corrupt practice of handing government jobs to political loyalists regardless of competence. The Pendleton Act of 1883 created a merit-based civil service, protected from political firing. That was a legitimate reform. Nobody wants postmasters chosen by party loyalty alone. But the principle metastasized.

By the 1930s, the New Deal created a raft of new agencies, the SEC, the NLRB, the FCC, deliberately insulated from presidential control. The theory, peddled by progressive intellectuals, was that these independent agencies would make expert, nonpartisan decisions free from political interference. Milton Friedman would have asked one question: And who holds them accountable? The answer, then and now, is no one. The architects of this system assumed that bureaucrats, freed from electoral pressure, would selflessly pursue the public interest. This assumption ignored everything we know about human nature and incentives. As Thomas Sowell has spent a career demonstrating, the gap between intentions and results is often vast. Insulate a person from consequences, and you do not produce wisdom, you produce unchecked power.

By the mid-20th century, the administrative state had grown so large that Presidents from both parties began complaining that they could not control their own government. The joke in Washington was that the federal workforce had two unbreakable rules: you cannot be fired, and you cannot be moved. The reality was worse than a joke. It was a slow institutional coup.

The unitary executive, restoration not revolution

Enter the doctrine of the unitary executive. The phrase sounds ominous to people who have been told that anyone who wants a strong presidency is a would-be authoritarian. But the doctrine is surprisingly modest. It simply says that the Constitution vests all executive power in the President, and that he must have the authority to supervise and remove all executive branch officers, except those performing quasi-judicial or quasi-legislative functions specifically insulated by constitutional design. This is not a power grab. It is a return to the original understanding.

The Supreme Court has wrestled with this question for decades. In Myers v. United States in 1926, Chief Justice Taft, himself a former President, wrote for the majority that the President's removal power was inherent in the vesting of executive authority. Congress could not limit it. In Humphrey's Executor v. United States in 1935, the Court carved out an exception for independent agencies whose members performed quasi-legislative and quasi-judicial functions. And in Morrison v. Olson in 1988, the Court allowed Congress to create an independent counsel who could not be fired by the President, a decision that Justice Scalia, in one of the greatest dissents ever written, called a violation of the separation of powers.

Scalia understood something fundamental. He wrote that the Framers design was to make the Executive and Legislative branches of the Federal Government independent of each other. The independence of each is supposed to be a protection against the overreaching of the other. But the design of the Constitution does not permit the degree of independence that the independent counsel possesses. That is the crux. If the President cannot control his own branch, then Congress can effectively create officers who answer to no one. And if those officers answer to no one, the people have lost control of their government.

Real world consequences when the bureaucracy defies the ballot box

This is not abstract theory. Consider some examples from recent history. When President Trump took office in 2017, he found that large portions of the federal bureaucracy were openly hostile to his agenda. Career officials in the State Department, the EPA, and the Justice Department slow-walked his initiatives, leaked internal communications, and in some cases actively worked against his policies. Multiple Inspectors General, officials who are supposed to be independent watchdogs, faced removal after political controversies, leading to drawn-out legal battles.

The same phenomenon occurred under President Obama. His own officials resisted some of his policies, and he found that the permanent bureaucracy had its own institutional agenda that did not always align with the elected President's. This is not a partisan complaint. It is a structural flaw. Whether you want more regulation or less, whether you lean left or right, you should be alarmed that the people's elected representative cannot command his own government.

The immigration system is a perfect example. Congress passes immigration laws, and the President is supposed to take Care that the Laws be faithfully executed. But career officials in immigration enforcement can decide, through policy guidance, slow processing, or selective enforcement, to effectively rewrite those laws without congressional approval. When the President tries to change direction, he discovers that many of the people who implement policy cannot be removed, cannot be reassigned, and cannot be controlled. That is not republican government. That is rule by bureaucracy.

The human stakes why this matters for your liberty

Every regulation that an unaccountable agency imposes on you is a law you never voted for. Every enforcement action that ignores the President's priorities is a decision made without your consent. Every time a career official frustrates a lawful directive from the elected President, your vote is diluted. This is why the Founders insisted on a republican form of government, a government of laws, not of men. But when executive branch members operate as a permanent, unremovable class, we slide toward rule by an unelected elite. The label changes, expert, independent, nonpartisan, but the reality is the same: people with power over your life who cannot be held accountable by the people.

Friedrich Hayek warned about this in The Road to Serfdom. He wrote that central planning inevitably concentrates power in the hands of a few, and that once power is concentrated, it is almost impossible to disperse it peacefully. The administrative state is a form of central planning, not of the economy necessarily, but of the machinery of government itself. The solution is not to eliminate the civil service or to politicize every federal job. It is to restore the constitutional principle that the President controls the executive branch, and that every executive branch member ultimately answers to him, and through him, to the voters.

What restoration looks like

A genuine restoration of the unitary executive would require several things. First, Congress must stop creating independent agencies that insulate officers from presidential removal. If a function is truly executive, it should be under presidential control. If it is quasi-judicial, like the Federal Trade Commission's adjudicative functions, limited independence may be appropriate. But the default assumption should be accountability, not insulation. Second, the courts should revisit the precedents that allow Congress to wall off whole departments from presidential supervision. Justice Scalia's dissent in Morrison v. Olson provides a roadmap. The Constitution vests executive power in one person. That vesting means something. Third, the President should use the tools already available, personnel selection, reorganization authority, and the power of the purse, to reassert control. The bully pulpit is not enough. Structural change is required.

Critics will scream imperial presidency. But look at the reality. The imperial presidency is what emerges when Congress delegates its own legislative authority to agencies and then insulates those agencies from the President. The true threat to liberty is not a strong President within constitutional bounds, it is an unaccountable administrative state that answers to no one. As Calvin Coolidge once said, it is much more important to kill bad bills than to pass good ones. The same applies to bad precedents. The precedent of an independent, unaccountable bureaucracy is a bad bill that has been running for a hundred years. It is time to veto it.

The bottom line

The Founders designed a government of separated powers, with each branch checking the others. But the executive branch cannot check itself. The President cannot be held responsible for what he does not control. And if the President cannot be held responsible, the people have lost their voice. The unitary executive is not a power grab. It is a restoration of constitutional self-government. It is the recognition that the power to remove is the power to control, and that the power to control is the foundation of accountability. Liberty depends on accountability. And accountability starts with knowing who can be fired. That is not a partisan issue. It is an American one.