Trump's Bogus 'Unitary Executive' Theory and the Dismantling of Democracy
We are a nation of laws, and we cannot be ruled by executive fiat.
President Donald Trump on Tuesday signed an executive order that purports to place independent regulatory agencies, such as the Federal Communications Commission and the Federal Trade Commission, under his direct control. Based on the so-called “unitary executive” theory, which claims that any congressional limits on presidential control of every lever of government power are unconstitutional, this action poses a grave threat to the rule of law and the separation of powers—cornerstones of our constitutional system.
This executive order states that the president is charged with ‘faithfully executing the laws.’ This is true. However, the laws of our nation include the existence of independent regulatory agencies, the power of Congress to appropriate funds and direct how they are spent, and protection for certain government employees and officers from arbitrary dismissal.
Executive orders are not the law—they are statements of policy, and memos from the president about how the Executive Branch conducts its internal affairs. By attempting to use executive orders to override actual laws—the kinds that are passed by Congress, not issued on a whim from the Resolute Desk—the Trump administration is effectively asserting that it stands above the law. Indeed, that it is the law. But the role of the executive branch is not to decide what the law is, or to pick and choose which ones it likes, but to carry out and enforce the law, as written. Donald Trump is a high-ranking government employee—not a king. If there are laws he does not like, he can work with Congress to change them.
Donald Trump is a high-ranking government employee—not a king.
A nebulous and broad understanding of the phrase ‘executive power’ cannot prevail over duly enacted statutes passed by Congress and signed into law by presidents of both parties, over the course of decades. The U.S. Constitution did not change its meaning when President Trump took office. That this ‘unitary executive’ theory has made its way from the fringes of academia to the halls of power, and that it has even been accepted by some credulous judges, does not mean that it is right. Many legal observers have pointed out the shoddy scholarship and selective history that underpins it. We are a nation of laws, and we cannot be ruled by executive fiat.
In the order, the Trump administration purports to seize for itself the power Congress delegated to independent regulatory agencies, and as written, declares the White House’s interpretation of the law as ‘authoritative,’ with no mention of the courts. Of course, the president is not, and never has been, the final arbiter of what is lawful. Lawyers working for the government owe their allegiance to the American people, not to President Donald J. Trump. The many government lawyers who have already resigned rather than follow illegal or unethical directives from Trump's appointed political operatives are an inspiration, despite how frightening a hollowed-out Department of Justice might seem.
As for independent regulatory agencies, in addition to being the law of the land, they are often good policy. While I have sometimes disagreed with decisions taken by the FCC or FTC, under both Republican and Democratic control, I understand the importance of expert agencies that are free from day-to-day political interference. The FCC’s control over broadcast licenses, and its unenviable role of coordinating spectrum use between different industries and other government agencies, among other things, means it should be free to try to come to the best answer – not the one with the loudest political support. This applies to enforcement activities as well. Under the Biden administration, for instance, the FTC frequently investigated politically powerful companies, to the ire of many prominent Democrats and Democratic donors.
While I have sometimes disagreed with decisions taken by the FCC or FTC, under both Republican and Democratic control, I understand the importance of expert agencies that are free from day-to-day political interference.
President Trump, like other presidents have done, is free to express his views as to what the agencies should prioritize, and to nominate like-minded commissioners as vacancies arise. But, as directed by Congress, and reflected in commissioners' protection from being fired due to policy or political differences with the president, such agencies must make the final call on policy decisions.
The notion that independent agencies are ‘unaccountable’ is, on its face, absurd. The president nominates all agency commissioners, including ones of the opposite party, and names the Chair from among them. Agencies regularly answer to Congress, which controls their budget, and enacts the statutes that spell out the limited scope of their authority. Independent agencies cannot issue regulations without following the strict guidelines of the Administrative Procedure Act, and their rules and enforcement actions are regularly challenged in the courts, and occasionally reversed by Congress.
The wisdom of having independent agencies and tenure protections for certain government officials has been confirmed in recent weeks by the disastrous and irresponsible actions of the lawless Trump administration. One president should not be able to nullify statutes passed into law by past presidents and past Congresses with the stroke of a sharpie. Congress must re-assert its central constitutional role. Further, one hopes that federal judges and Supreme Court justices who, in the past, have lent their support to an imperial vision of the presidency, can see where this is going and act to limit the ability of the president to subvert our democracy and constitutional order.
