“I have an Article II, where I have the right to do whatever I want as president,” President Donald Trump stated during his first term. Less than one month into his second administration, he is vigorously testing that bizarre assertion and rapidly making it our new reality.
The Trump campaign promised to upend our system of government, and by issuing directives aligned with those promises, the new Trump administration is pushing along multiple fronts to do just that. These actions set up cases that could provide the conservative-dominated Supreme Court an opportunity to codify what was once a fringe theory of presidential power.
Moves along one front would make it easier to fire executive branch officials and, by demanding fealty from subordinates, consolidate presidential control over the executive branch.
As a candidate in 2024, Trump pledged to reissue his “Schedule F” executive order: “I will immediately re-issue my 2020 Executive Order restoring the President's authority to remove rogue bureaucrats.” Upon taking office again, the president followed through, issuing an order to make it easier to reclassify and potentially dismiss any federal civil servant if their role has a “policy-determining, policy-making, or policy-advocating character.”
Other actions underscore the point and test the boundaries of existing law. For example, the Office of Personnel Management sent a “Fork in the Road” email to federal employees designed to incentivize mass resignations. Employees at the Department of Justice who had worked on Special Counsel Jack Smith’s investigations were fired, despite their career status and protections from at-will removal. The president also fired several inspectors general, declining to provide the congressionally mandated 30-day notice and detailed reasons for their dismissal.
Such rapid-fire actions are already setting up court cases that will determine how much control the president can exercise over the civil service and whether any kind of restrictions on the president’s removal power are constitutional.
Along a second front, President Trump has targeted independent regulatory commissions, agencies that have not traditionally been considered part of the executive branch.
As a candidate, Trump pledged to “bring the independent regulatory agencies, such as the [Federal Communications Commission] and the [Federal Trade Commission], back under presidential authority, as the Constitution demands.” President Trump has now fired a member of the National Labor Relations Board, despite explicit legal protections against at-will removal by the president. Moves like that set up a test of whether Congress can insulate agencies from direct presidential control. The implications are far ranging, touching agencies as vital to national economic stability as the Federal Reserve.
A third front targets control over federal spending and challenges Congress’ constitutional authority over appropriations.
As a candidate, Trump pledged to “do everything I can to challenge the Impoundment Control Act in court, and if necessary, get Congress to overturn it. . . . I will then use the president’s long-recognized Impoundment Power to squeeze the bloated federal bureaucracy for massive savings.” Along these lines, the Trump administration’s Office of Management and Budget, whose newly-confirmed director is a proponent of a formerly fringe doctrine that claims the president has the power to control federal spending absolutely, directed the executive branch to “temporarily pause all activities related to obligation or disbursement of all Federal financial assistance.” The memorandum claimed that “Career and political appointees in the Executive Branch have a duty to align Federal spending and action with the will of the American people as expressed through Presidential priorities.” That memo was quickly rescinded amid widespread confusion, lawsuits, and court orders.
But that effort was likely an opening salvo in what the administration hopes will be a broad test of whether the Court would allow the president to impound congressionally-appropriated funds. A document circulating at OMB describes a strategy “to restore impoundment authority” through court challenges to existing practice, “focusing on its violation of the separation of powers” and “seek[ing] legal precedent to affirm the President’s Article II powers under the Take Care Clause and Executive Vesting Clause.” Similarly, Elon Musk, whose “Department of Government Efficiency” is aggressively targeting agencies like the U.S. Agency for International Development and even the Treasury Department’s payment system, has expressed confidence that the Supreme Court would find the Impoundment Control Act of 1974 “unconstitutional.”
A common thread connects these three fronts. Each draws on a stringent and extreme reading of what the Constitution’s separation of powers demands and what the president is empowered to do.
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Cultivated by the conservative legal movement and now widely shared within it, this “theory of the unitary executive” deploys the “Vesting Clause” of Article II of the Constitution to declare that “all of the executive power” belongs to the president alone. The theme animated the Heritage Foundation’s blueprint for action, “Project 2025.” That plan is now being used to destroy the integrity of the administrative state and to redirect at the president’s will the vast powers now concentrated in the executive branch.
It is not at all certain that the Court will affirm the president’s actions. But the Trump administration has good reason to make the bet. The Court’s recent decisions in cases like Seila Law v. Consumer Financial Protection Bureau (2020) and Trump v. United States (2024) have aggressively advanced the unitary project. The Republican-appointed justices who would be the key votes on deciding such cases all came up through the conservative legal movement. Many served in past Republican presidential administrations, in which the unitary executive theory was treated as “gospel.”
No doubt the conservative legal movement believes that in advancing the unitary executive theory it is espousing the true meaning of the Constitution. In fact, it boasts that it has rediscovered the original meaning. But we should be under no illusions that adopting such decisions would restore Americans’ faith in the Constitution.
Instead, judicial approval for the president’s actions would fatally undercut the Constitution’s power-sharing design. It would turn the Constitution into a warrant for one group of participants to impose its will unilaterally on the rest. The long-running effort to give the cover of law to unbridled presidentialism stands today on the brink of victory.
John A. Dearborn (Yale), Stephen Skowronek (Yale), and Desmond King (Oxford) are the authors of "Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive," published by Oxford University Press
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