The Unitary Executive Myth

There is a peculiar thing happening in American constitutional debate. Both sides have convinced themselves that they are defending the Founders' design for executive power, and both sides are wrong. Progressives claim the President needs broad discretionary authority to govern a complex modern nation, relying on executive orders, agency rulemaking, and unilateral foreign policy. They see the Constitution's executive vesting clause as a grant of inherent power to do whatever the moment demands. Conservatives, meanwhile, champion the unitary executive theory, arguing that the President must have total control over every officer and agency in the executive branch to ensure democratic accountability and faithful execution of the laws. Both camps cite Hamilton. Both cite Washington. Both claim to be originalists. And both have missed the entire point of Article II.

What the Founders Actually Built

Let us start with the architecture. Article II vests the executive Power in a single President. That is a broad grant, intentionally so. Hamilton wrote in Federalist No. 70 that energy in the executive is a leading character in the definition of good government. A single, accountable executive could act decisively, unlike the weak plural executives of the Articles of Confederation. But here is the part the unitary executive enthusiasts gloss over: that energy operates within a constitutional framework of checks and balances. The President's power is bounded by enumerated powers, the commander in chief power, the pardon power, the appointment power with Senate advice and consent, the treaty making power, the power to receive ambassadors, and the power to require opinions from department heads. Everything else is implied only as necessary to execute the laws. The Take Care Clause commands that the President shall take Care that the Laws be faithfully executed. This is a duty, not a license. He must execute the laws as Congress passes them, not his own policy preferences. Congress has its own enumerated powers, the power to declare war, raise armies, regulate commerce, tax, spend, and make all laws necessary and proper for executing its powers. The President cannot override these with executive action. The separation of powers means the branches are distinct. The President does not legislate. He does not adjudicate. He executes.

George Washington understood this instinctively. When he issued his Neutrality Proclamation in 1793, he did so as an exercise of the executive power to conduct foreign affairs, but he also ensured Congress was fully informed and sought its endorsement where appropriate. When he asserted executive privilege in the Jay Treaty negotiations, he did so narrowly, and Congress pushed back. When he wanted to create a national bank, he asked Hamilton and Jefferson for constitutional opinions, then signed the bill because he was persuaded Congress had the power, not because he claimed unilateral authority. James Madison, the father of the Constitution, was even more explicit. In Federalist No. 51, he wrote that the constant aim is to divide and arrange the several offices in such a manner that each may be a check on the other. The President checks Congress through the veto. Congress checks the President through appropriations, oversight, and impeachment. The courts check both through judicial review. No one branch was meant to dominate.

The Administrative State: The Constitution's Uninvited Guest

Now look at what we have. Congress passes broad, vague statutes. The Secretary shall regulate in the public interest. The Agency shall ensure clean air. The Commission shall prevent unfair trade practices. Then administrative agencies write thousands of pages of regulations that have the force of law, enforce those regulations, and adjudicate disputes, all within the same department. This is a direct violation of the nondelegation doctrine, the principle that Congress cannot delegate its legislative power to the executive branch. The Constitution says all legislative Powers herein granted shall be vested in a Congress of the United States. Not some of them. Not most of them when it is convenient. The Supreme Court has effectively nullified this doctrine. In Whitman v. American Trucking Associations in 2001, the Court held that Congress could delegate broad authority to the EPA to set air quality standards as long as it provided an intelligible principle to guide the agency. The intelligible principle was essentially protect public health with an adequate margin of safety. That is not a principle. It is a blank check.

The result is an administrative state that exercises all three governmental powers simultaneously. The EPA writes regulations, which is legislative. It enforces them, which is executive. And it judges violations in its own administrative law courts, which is judicial. The Founders would have recognized this as precisely the kind of concentrated power they designed the Constitution to prevent. Progressives love this system because it allows expert bureaucrats to govern without the messy constraints of democratic deliberation and legislative gridlock. They argue that modern problems require specialized agencies staffed by apolitical professionals. But as Thomas Sowell has repeatedly demonstrated, the gap between intentions and results is where bad policy lives. Unaccountable agencies with broad discretion do not produce better outcomes. They produce arbitrary power.

The Unitary Executive Theory: Half Right

Conservatives have correctly identified part of the problem. The administrative state is exercising power that belongs to Congress, and the President should at least be able to control it. The unitary executive theory holds that because the entire executive power is vested in the President, he must have the authority to direct and remove any executive officer, including the heads of independent agencies like the SEC, the FTC, and the NLRB. This is constitutionally sound as far as it goes. Article II does not create a class of independent officers who can defy the President's lawful directions. That is why the Supreme Court has consistently upheld the President's removal power over most executive officers, with limited exceptions for independent agencies, and those exceptions are constitutionally dubious.

But here is where the unitary executive theory falls short. It assumes the solution is to give the President control over agencies that should not exist in their current form in the first place. It treats the administrative state as legitimate, just poorly managed. The real constitutional answer is not for the President to command the bureaucracy. It is to restore the separation of powers so that agencies do not exercise legislative or judicial power at all. Consider immigration. President Obama, frustrated with Congress's failure to pass comprehensive reform, issued DACA, an executive order effectively creating a new immigration status for millions of people. Conservatives rightly condemned this as an executive power grab. But when President Trump took office, many of the same voices argued that he should be able to control immigration enforcement completely, including through executive orders that rewrote immigration law. Both positions cannot be right. Either the President has inherent authority to set immigration policy unilaterally, or he does not. The Constitution says he does not. The Congress shall have Power to establish an uniform Rule of Naturalization. The President's role is to execute the laws Congress passes, not to create his own.

Where Both Sides Go Wrong

Progressives want an executive that rules by regulation and executive order, bypassing Congress entirely. They see the President as a kind of super legislator who can solve problems the Founders archaic system cannot handle. This is a direct assault on Article I, Section 1. Conservatives want a unitary executive that controls the bureaucracy, but they often ignore the fact that the bureaucracy is exercising unconstitutional power in the first place. They fight to put a Republican in charge of the EPA rather than arguing that the EPA should not be making law at all. Both sides are playing a game of musical chairs on a sinking ship. The ship is the administrative state, and it is taking on water because the Founders never designed it to float. The only real fix is to restore the constitutional order. Congress makes the law. The President faithfully executes it. The courts ensure both branches stay in their lanes.

The Path Forward

Restoring constitutional balance requires three things. First, revive the nondelegation doctrine. The Supreme Court must hold that Congress cannot delegate its legislative power to executive agencies. If Congress wants to regulate something, it must pass a specific statute, not a vague mandate that gives bureaucrats the power to invent law. Second, enforce the separation of powers within the executive branch. Agencies should not exercise judicial power. Administrative law judges should be Article III judges, or their rulings should be appealable to real courts. Adjudication belongs to the judiciary, not the bureaucracy. Third, limit executive orders to their proper scope. The President can direct the execution of existing law. He cannot create new law, rewrite statutes, or invent programs Congress never authorized. The Take Care Clause means what it says. The President faithfully executes the laws Congress passes.

The Founders gave us a strong but limited executive. They understood that liberty requires power to check power. The modern presidency, whether occupied by a progressive or a conservative, has abandoned that design. It is time to return to first principles. Not because the Constitution is an antique, but because it is the only thing standing between us and the rule of men over the rule of law. Restoring the separation of powers will require judgment, the willingness to see past partisan convenience and embrace the hard work of constitutional fidelity. That judgment is what we need from our leaders, our courts, and ourselves.