SUBSCRIBE TO OUR FREE NEWSLETTER
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
5
#000000
#FFFFFF
5
#000000
#FFFFFF
unitary executive theory
'Beyond Unfit': Emil Bove Endorses Trump's 'Unitary Executive' Theory at Confirmation Hearing
The federal judicial nominee supports signing "a blank check for Trump to control every agency," said one government watchdog.
Jun 25, 2025
A whistleblower complaint alleging that top Justice Department official Emil Bove pressured government lawyers to ignore court orders was a primary concern for Democratic members of the Senate Judiciary Committee on Wednesday as the panel held Bove's confirmation hearing to be a judge on the U.S. Court of Appeals for the 3rd Circuit—but a government watchdog urged lawmakers not to overlook another key issue that came to light during the hearing.
Bove told the committee that the whistleblower complaint that was filed by ousted former DOJ attorney Erez Reuveni Tuesday addressed "a dispute about the challenges posed by the unelected bureaucracy to the unitary executive and to the people that elected the president and put him in office."
Accountable.US said Bove had inserted a "buzzword" into his testimony: the far-right "unitary executive" theory, which holds that limits on presidential power over the executive branch are unconstitutional—or that the president should hold absolute power over every government agency, unencumbered by members of "the unelected bureaucracy" like Reuveni and anyone else in the federal government who would express disagreement with President Donald Trump's policies or actions.
As Common Dreams reported Tuesday, Reuveni's whistleblower complaint detailed allegations that just before Trump invoked the Alien Enemies Act (AEA) to swiftly deport more than 200 immigrants to El Salvador—claiming they were gang members who were part of an "invasion" of the U.S.—Bove told DOJ lawyers that deportation flights "needed to take off no matter what" and that the agency should "consider telling the courts 'fuck you' and ignore any such order" that would try to stop the forced removals.
In his testimony Wednesday, Bove took issue with the idea that a career government attorney like Reuveni, who was acting deputy director of the Office of Immigration Litigation, "was in a position or considered himself to be, to bind the department's leadership and other Cabinet officials."
Bove suggested Reuveni, who served in the department for 15 years under Democratic and Republican administrations, should not have been empowered to say in a court hearing that the Trump White House had mistakenly deported Kilmar Abrego Garcia, a Maryland man who was sent to El Salvador's Terrorism Confinement Center, as he did in April—just before he was placed on administrative leave and then fired.
Under the "unitary executive" theory, said Accountable.US, Trump alone would control "the DOJ, the Fed, even election oversight. No president should have that kind of power."
Bove expanded on his views regarding presidential power when Sen. Mike Lee (R-Utah) questioned him about "the contours of the president's authority to appoint and remove" executive branch officials.
"Generally speaking," said Bove, "I think the court used the phrase 'all of it' is committed to the president of the United States."
In a column in February, John Bergmayer, legal director of Public Knowledge, warned that with an executive order purporting to place independent regulatory agencies under Trump's control, the president had embraced the fringe "unitary executive" theory and posed "a grave threat to the rule of law and the separation of powers—cornerstones of our constitutional system."
"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," wrote Bergmayer. "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."
At the hearing, Bove denied the allegations in the whistleblower complaint, saying he "never advised a Department of Justice attorney to violate a court order." He told Rep. Adam Schiff (D-Calif.) under questioning that he "did not recall" whether he made the comments detailed in the complaint.
Accountable compiled a list of numerous concerns about Bove's potential appointment to a lifetime seat on the federal judicial bench as part of its Judicial Nominations Watch project.
In addition to the allegations in the complaint, said the group, Bove:
- Created turmoil and chaos in the Justice Department after dropping corruption charges against New York City Mayor Eric Adams, prompting the resignation of multiple staff attorneys, who left in protest;
- Advanced dubious legal arguments meant to throw out or delay Trump's legal cases when he served as his attorney, including by trying to avoid discovery requirements and petitioning to move Trump's New York state criminal case to federal court; and
- Developed a reputation as a federal prosecutor who belittled subordinates and was the subject of an email from defense attorneys expressing concern about his "professionalism" and "power plays"—a document he pinned to a wall as "a badge of honor."
Lena Zwarensteyn, senior director of the fair courts program and an adviser at the Leadership Conference on Civil and Human Rights, said Bove has been shown to be "beyond unfit to serve in a lifetime judgeship."
"His temperament, subversion of the rule of law, and efforts to seek retaliation while at the Justice Department demonstrate that he would not be fair-minded, independent, or committed to protecting the rights of all people in America," said Zwarensteyn. "As his actions have shown, he would only be loyal to the president—rather than to the Constitution and the law—at the expense of the American people and our democracy."
"With each day there are more and more damaging reports and questions about Bove's tenure at both the Justice Department and in the U.S. attorney's office in the Southern District of New York," she added. "Senators must take their constitutional responsibility seriously. They must reject his nomination for the 3rd Circuit."
Accountable.US said Bove had inserted a "buzzword" into his testimony: the far-right "unitary executive" theory, which holds that limits on presidential power over the executive branch are unconstitutional—or that the president should hold absolute power over every government agency, unencumbered by members of "the unelected bureaucracy" like Reuveni and anyone else in the federal government who would express disagreement with President Donald Trump's policies or actions.
As Common Dreams reported Tuesday, Reuveni's whistleblower complaint detailed allegations that just before Trump invoked the Alien Enemies Act (AEA) to swiftly deport more than 200 immigrants to El Salvador—claiming they were gang members who were part of an "invasion" of the U.S.—Bove told DOJ lawyers that deportation flights "needed to take off no matter what" and that the agency should "consider telling the courts 'fuck you' and ignore any such order" that would try to stop the forced removals.
In his testimony Wednesday, Bove took issue with the idea that a career government attorney like Reuveni, who was acting deputy director of the Office of Immigration Litigation, "was in a position or considered himself to be, to bind the department's leadership and other Cabinet officials."
Bove suggested Reuveni, who served in the department for 15 years under Democratic and Republican administrations, should not have been empowered to say in a court hearing that the Trump White House had mistakenly deported Kilmar Abrego Garcia, a Maryland man who was sent to El Salvador's Terrorism Confinement Center, as he did in April—just before he was placed on administrative leave and then fired.
Under the "unitary executive" theory, said Accountable.US, Trump alone would control "the DOJ, the Fed, even election oversight. No president should have that kind of power."
Bove expanded on his views regarding presidential power when Sen. Mike Lee (R-Utah) questioned him about "the contours of the president's authority to appoint and remove" executive branch officials.
"Generally speaking," said Bove, "I think the court used the phrase 'all of it' is committed to the president of the United States."
In a column in February, John Bergmayer, legal director of Public Knowledge, warned that with an executive order purporting to place independent regulatory agencies under Trump's control, the president had embraced the fringe "unitary executive" theory and posed "a grave threat to the rule of law and the separation of powers—cornerstones of our constitutional system."
"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," wrote Bergmayer. "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."
At the hearing, Bove denied the allegations in the whistleblower complaint, saying he "never advised a Department of Justice attorney to violate a court order." He told Rep. Adam Schiff (D-Calif.) under questioning that he "did not recall" whether he made the comments detailed in the complaint.
Accountable compiled a list of numerous concerns about Bove's potential appointment to a lifetime seat on the federal judicial bench as part of its Judicial Nominations Watch project.
In addition to the allegations in the complaint, said the group, Bove:
- Created turmoil and chaos in the Justice Department after dropping corruption charges against New York City Mayor Eric Adams, prompting the resignation of multiple staff attorneys, who left in protest;
- Advanced dubious legal arguments meant to throw out or delay Trump's legal cases when he served as his attorney, including by trying to avoid discovery requirements and petitioning to move Trump's New York state criminal case to federal court; and
- Developed a reputation as a federal prosecutor who belittled subordinates and was the subject of an email from defense attorneys expressing concern about his "professionalism" and "power plays"—a document he pinned to a wall as "a badge of honor."
Lena Zwarensteyn, senior director of the fair courts program and an adviser at the Leadership Conference on Civil and Human Rights, said Bove has been shown to be "beyond unfit to serve in a lifetime judgeship."
"His temperament, subversion of the rule of law, and efforts to seek retaliation while at the Justice Department demonstrate that he would not be fair-minded, independent, or committed to protecting the rights of all people in America," said Zwarensteyn. "As his actions have shown, he would only be loyal to the president—rather than to the Constitution and the law—at the expense of the American people and our democracy."
"With each day there are more and more damaging reports and questions about Bove's tenure at both the Justice Department and in the U.S. attorney's office in the Southern District of New York," she added. "Senators must take their constitutional responsibility seriously. They must reject his nomination for the 3rd Circuit."
Keep ReadingShow Less
What Would the Founders Make of Trump’s Authoritarianism?
The Founders imagined the president as an administrator, not a policymaker, and definitely not an imperial unitary executive.
Mar 26, 2025
The U.S. Constitution is very specific about the powers of Congress and very vague about the powers of the president and the judiciary. While the authors of the nation’s founding documents were explicit that power had to be divided between three coequal branches, the legislative, executive, and judicial, they did not anticipate the authoritarianism of President Donald Trump, the cowardice of congressional representatives beholden to a populist demagogue for endorsements and campaign funds, nor the reactionary ideology of a right-wing Supreme Court. It is not fair to blame the founders for events 250 into the future, with the United States in the midst of a major constitutional crisis.
In 1787, Benjamin Franklin placed the responsibility for upholding the Constitution on future generations when he warned that the new government is “A republic, if you can keep it.” Abraham Lincoln recognized the difficulty of maintaining a country based on this one’s founding principles in his Gettysburg Address over 150 years ago when he told the assembled, “We are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.”
The Constitution assigns the president an undefined executive power with some very specific tasks. The president represents the country in talks with other countries and can negotiate treaties, but the treaties must be approved by the Senate; the president can veto or sign bills approved by both houses of Congress, and then they are responsible for enforcing the laws; and the president acts as Commander-in-Chief of the military during a war, nominates judges and ambassadors pending Senate approval, and grants pardons.
The Trump claim for a unitary executive and virtually unlimited executive power undermines everything they were trying to create.
There is no mention in the Constitution of political parties or of Cabinet members. Departments and Cabinet positions were created by Congress later to make the government run more smoothly. Executive orders are not mentioned in the Constitution either, and they do not carry the power of law, but every president since George Washington has issued executive orders as instructions to heads of the different federal departments about how to carry out their duties. The Constitution does not give the president the authority to issue executive orders that overturn or ignore laws passed by Congress or decisions made by the Supreme Court.
Since George Washington’s presidency, different presidents have interpreted their powers and responsibilities as chief executive in different ways. President Trump embraces the modern unitary executive theory, which claims that the president has sole authority over the executive branch of the government. According to this theory presidential power can only be restrained if a president is impeached by the House of Representatives and convicted by the Senate, something that it so difficult that it has never happened in United States history.
Without restraints, Trump argues he can summarily fire without cause any employee of the executive branch including Cabinet members approved by the Senate, he can decide not to spend money allocated by Congress, and he can ignore laws he does not agree with even though they were passed by Congress and signed by a previous president. The right-wing majority on the Supreme Court seems inclined to support Trump’s view of executive power. In 2020, during Trump’s first presidency, the Supreme Court narrowly ruled 5-4 that “the entire ‘executive power’ belongs to the president alone,” although it never actually explained what executive power means.
Three of the nation’s founders, Thomas Jefferson, James Madison, and Alexander Hamilton, addressed the allocation of power in the new government and explained why power had to be divided. Thomas Jefferson was not at the Constitutional Convention, but he did address the separation of powers in his 1784 Notes on the State of Virginia, with ideas that helped shape the Constitution. While Jefferson was more concerned with the legislative branch assuming too much power, he was very clear that “all the powers of government, legislative, executive, and judiciary, result to the legislative body,” but “concentrating these in the same hands is precisely the definition of despotic government... An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Jefferson warned, “The time to guard against corruption and tyranny, is before they shall have gotten hold on us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.”
James Madison, who was the secretary at the Constitutional Convention, explained how separation of powers should work in essays he wrote during the debate in New York State over ratification of the Constitution. In Federalist Papers 47-50, he explained the importance of separating powers and how the principle was applied in the Constitution. He also addressed concerns about how the system would work. An underlying principle of the new government was that “ambition must be made to counteract ambition,” balancing power among the branches of government to protect individual rights and prevent tyranny. Madison famously wrote in Federalist Paper 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”
Alexander Hamilton, an active participant in the Constitutional Convention, wrote in favor of a strong executive and is used to justify the unitary executive theory; however, Hamilton was not discussing unlimited executive authority but was disputing the idea of a presidential council. Hamilton explained the specific powers assigned to the president and did not anticipate claims that a president would be virtually unchallengeable. According to Hamilton, “The only remaining powers of the executive are comprehended in giving information to Congress of the State of the Union; in recommending to their consideration such measures as he shall judge expedient”; and “faithfully executing the laws.” He was very careful to distinguish between the president as an elected executive subject to impeachment and the power of a hereditary monarch.
I think the Founders imagined the president as an administrator, not a policymaker, and definitely not an imperial unitary executive. Their bigger fear was that congressional majorities would attempt to usurp the executive’s responsibility to administer laws in order to benefit special interest groups. For the same reason they wanted an independent judiciary to prevent the politically motivated administration of justice. The Trump claim for a unitary executive and virtually unlimited executive power undermines everything they were trying to create.
Keep ReadingShow Less
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.
Feb 20, 2025
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.
Keep ReadingShow Less
Most Popular