Unitary Executive Theory, which posits that the President of the United States is entitled by the Constitution to total and exclusive control of the executive branch of the federal government, is all the rage these days. Pursuant to this proposed doctrine, the President may fire any subordinate at will, notwithstanding civil service protections enacted by Congress, and direct the actions of every unit of the executive, even those designated by Congress as independent. The Unitary Executive has been a pet theory of the conservative legal movement for years and arguably traces its lineage back to the Decision of 1789, but no executive in American history has leaned so hard into the idea of exclusive presidential control as the second Trump Administration.
Indeed, President Trump has not been satisfied with unilaterally firing federal employees en masse or disbanding entire executive branch agencies at a whim. His conception of presidential power apparently extends beyond the executive itself. In just the first few months of his new Administration, we have already seen the President usurp Congress's legislative power through unprecedented Executive Orders and snatch its power of the purse under the dubious doctrine of impoundment. Meanwhile his Administration thumbs its nose at court orders and dispenses justice without regard for due process of law.
Proponents of the Unitary Executive assert their conception of executive authority comports with the original meaning of the Constitution. But it seems that the executive branch of the early Republic was not so unitary as all that, nor did the presidents of that era seek to wield the powers of the other branches of government in anything like the way that Trump has.
President Trump's efforts to consolidate the capacities of the federal government in his own hands does not evoke the executive branch of the Founding Fathers. To locate an intellectual antecedent in the history of the Anglo-American legal tradition reminiscent of the ambitions of Trump, we have to travel a lot farther back in time, to an ancient notion of the divine right of kings unconstrained by rival parallel governmental institutions.
The early executive
In its primeval iteration, English kingship encompassed (at least in theory) all the functions of sovereignty. The King was the law giver, the law executor, and the law decider. Kingship in Anglo-Saxon England arose in the aftermath of a terrible famine that occurred when the sun was blotted out for an entire year by the eruptions of an Icelandic volcano beginning in AD 536. Warlords emerged to take cynical advantage of the ensuing social, economic, and political hardship and chaos. These were cruel and violent despots more in the mold of Beowulf than Charles III.
But even in this era, English kings could not hold onto power, much less project that power against neighboring kingdoms (a must for any dark ages monarch worth a damn), without the support of their lieutanants, notables in their own right known as ealdormen. The king's ealdormen concladed in a body called the witan, which met as the witengamot. The witan was, in one sense, a council of wise men whom the king could consult in making weighty decisions. But in another sense, it was a precursor to the House of Lords, because even at this early stage, the king's barons could make common cause against the monarch when he acted against their interests. When Æthelred II, known as "the Unready" due to his failure to handle a viking invasion by Sveyn Forkbeard, came slinking back from exile abroad to retake the English crown in AD 1013, for example, the witan only accepted him back upon condition that he promise to suck less.
After the Conquest, the Norman kings faced a similar dynamic, and over time Parliament evolved into an alternative power structure that purported to represent the interests not just of the barons but of the whole realm against the king himself, with the ability to curb the worst tendencies of tyrannical monarchs. Eventually, Parliament would claim exclusive authority to legislate and to tax, and in the end claim the mantle of ultimate sovereignty itself, relegating the monarch to a figurehead. Meanwhile, the monarch's authority to decide disputes arising under the law also began to take on a life of its own as he effectively franchised royal justice in an attempt to project his influence throughout the kingdom.
A brief history of the early courts
The authority to resolve disputes was a central component of royal power going back to at least biblical times, when Solomon split the proverbial baby. In the dark ages, the "doing of justice was a central role of the medieval ruler," writes John Hudson in the Formation of the English Common Law. But the king's judicial capacity was not necessarily a distinct or formalized process in itself. Rather, in the early days, the king doled out justice in the course of his other regular royal activities. The courts of justice and the king's royal court were the same thing, and indeed we still call them “courts” today.
But the king couldn't be everywhere at once, nor did he have the time to hear and decide every dispute arising among his subjects personally. So he deputized his most trusted officials to hear cases and resolve them on his behalf. He dispatched these officials to hold courts throughout the realm, projecting royal power and influence into every corner of England. These iterant "justices" soon began to professionalize and to regularize court procedure and practice. Meanwhile, the king enabled local designees, the reves of the shires (from which we derive "sheriff") to hold courts on his behalf and wield royal authority to summon parties and witnesses, to hear evidence, and to decide local controversies with the input of freemen of good repute from the surrounding community, early jurors.
But the king's justice was not the only game in town. For one thing, as we have seen, the king's most influential barons were power-centers in themselves who asserted the right to hold their own courts and adjudicate the concerns arising within their tenure. Kings could and did try to subordinate these baronial courts by declaring them subject to his appellate jurisdiction. More troublesome, however, were the ecclesiastical courts. Their jurisdiction arose from an authority independent and possibly superior to that of the king himself, the Pope in Rome.
Church courts claimed exclusive jurisdiction over all men and women of the cloth, even when they violated the secular law. Not only was this a direct affront to the king's authority, but to justice itself by the standards of the time, since ecclesiastical courts could not sentence even the most egregious offenders to corporal punishment. Defrocking was the typical punishment for "criminous clerks" in church courts, when execution or mutiliation would have been their fate before a secular tribunal.
The jurisdiction asserted by the ecclesiastical courts was a serious conundrum for medieval monarchs, who had long since abandoned paganism and followed the lead of Charlemagne in founding their right to rule on the will of the Christian God, symbolized by the king's consecration by the Pope. In relying on the Lord's emissary on Earth, the rulers of Europe had made a devil's bargain, for in legitimating their reigns they also acknowledged the supremacy of a higher power, the Church. If the Pope could make a king, why couldn't he unmake one? How could a king who, by his own admission derived his authority from the Holy Father, repudiate power of that same prelate?
The independent power and immunity of the clergy was a constant headache for medieval monarchs, not the least them the kings of England, and led to numerous clashes between church and state. Standing on the principle of exclusive ecclesiastical jurisdiction was the infamously gory undoing of Thomas Becket, but not until Henry VIII would the English monarchy finally rid itself of those troublesome Catholic priests.
The English kings maintained control of the secular courts up the Stuart dynasty. "Not for nothing," writes Professor Amar, "was one prominent English court known as the 'King's Bench,' for the judiciary largely took shape as an extension of the Crown's authority to do justice to its subjects." Gordon Wood concurs, writing that "[p]rior to the eighteenth century the English common law courts had been regarded as servants of the crown, and judges held their offices at royal pleasure." It was the Glorious Revolution of 1688 - 1689 that finally shook the judiciary free from the king's clutches.
The English Civil War was mostly a battle of wills between the English monarchy and Parliament, but when the dust finally settled and the executive and legislature had established a new modus vivendi in the Glorious Revolution, increased independence for the judiciary was a happy byproduct. In the Act of Settlement of 1701, English judges were given tenure quamdiu se bene gesserint, meaning "during good behavior." In addition, judges salaries were to be "ascertained and established," meaning that they could be increased but not decreased. Still, Parliament kept a tight leash on the judicial pitt bull, reserving to itself authority to unseat judges for any reason if both houses concurred.
The colonial judiciary
But in the North American colonies, it was a different story because "[j]udges in the colonies had not gained their independence in the aftermath of the Glorious Revoution of 1688-1689 as those in the mother country had," according to Wood. Colonial judges "continued to hold office as the pleasure of the crown" and in most cases could be removed by imperial officials. Yet, the salaries of judges and other officials were set by the colonial assemblies, giving the colonists a lever to control these magistrates. As Amar describes it, "if a colonial judge leaned too far in direction he could be fired (by the executive) and if he leaned too far in the other direction he could be starved (by the legislature)." But in the eighteenth century, Parliament sought to upend this balance by eliminating the power of assemblies to determine judicial salaries.
After the Glorious Revolution, Parliament sought to tighten imperial control over colonial governments that had arisen in the isolated backwoods of North America and in the process gained an alarming degree of independence from parliamentary control. Parliament asserted the right to legislate for the colonies "in all cases whatsoever" and enacted taxes on the colonists in order to generate revenue to pay imperial officials directly, eliminating local control over salaries of magistrates.
This was a "parliamentary scheme to limit the influence of colonial legislatures and juries by tying the salaries of judges, the governor, and lieutenant governor," writes G. Edward White. To make matters worse, in order to collect the taxes, Parliament established new courts governed under admiralty law (meaning they had no juries) and dispatched additional imperial officials to collect the new taxes, whose own salaries would also be paid by the taxes they collected. The establishment of jury-less courts to adjudicate taxes was especially galling to the colonists, because as I have written, local juries were among the strongest bulwarks against imperial overreach in the colonial era.
The colonists of course rejected Parliament's authority. As the colonists saw it, their local assemblies, in which they were directly represented, had superior authority to govern and tax them over Parliament, in which they were represented only "virtually." Professor White writes that, in the eyes of the American colonists, the actions of Parliament "were the equivalent of a tyrant's arbitrarily imposing required tributes upon English citizens, a practice long established as inconsistent with the fundamental rights of those citizens."
But Parliament considered its overseas colonies conquered territories that were distinct and dependent dominions of England, where the common law did not apply. Because the "colonies were part of the British Crown's empire[,] Parliament had the power to rule the king's possessions for him; and members of the colonial population, being residents of distant, conquered territory, had not taken any other English laws with them when they settled in America."
Parliament's scheme to tax the the colonists in order to pay the salaries of imperial officials was the last straw. In the Declaration of Independence, the colonists called out the imperial government for trying to make "judges dependent on [King's] will alone, for the tenure of their offices, and the amount and payment of their salaries."
When Americans set about designing their own federal judiciary in the Constitution, they applied the lessons they had learned in the colonial period, giving judges "good behavior" tenure insulated from executive removal. Only Congress could remove a federal judge through impeachment. At the same time, the Constitution did not preserve legislative discretion over judicial salaries. Instead, it adopted the English precedent, giving Congress power to increase judicial pay but not to decrease it.
I began this post by railing against the imperial presidency. Last time, I complained about judicial overreach through the practice of universal injunctions. I even went so far as to accuse the U.S. Supreme Court of having transformed itself into a "super-legislature" that was not a "court" at all. In my opinion, both the executive and the judiciary have gotten way to big for their britches. But the fault does not lie with them. The dysfunction in our separation of powers arises from the failures of Congress.
Article I of the Constitution is devoted to establishing and setting out the powers of Congress. The president and the judiciary come second and third because the Framers intended for Congres to be the prime mover and most important branch of government. It is, after all, the most democratic branch. Neither the president1 nor federal judges are elected by the people. As Amar describes it, the Constitution tracks a "general democratic logic in which the institutions mentioned earliest in the document rested on the broadest electoral base, with later-mentioned entities layered atop broader tiers of the democratic pyramid."
But today, Congress can't even get a proper appropriations bill over the finish line, much less competently legislate national policy. Congress critters are far more interested in getting on cable news or going viral on social media than doing the grueling and detailed work of legislating. One can hardly blame the other two branches for stepping into the breach. Somebody has to run this country after all.
Immigration policy, for example, is entirely dominated by a battle between the executive and judiciary, with the Administration sending plain-clothes agents in ski-masks to abduct legally present aliens off the street and exile them to a foreign gulag and the courts belatedly ordering executive officials to "facilitate" their return. Meanwhile Congress whistles.
But this catastrophe has been decades in the making. Congress was trying and failing to get immigration reform done during the Bush II Administration. Obama had to save the Dreamers by executive order because Congres could not even get off its ass to fix that no-duh issue. But DACA went way beyond mere enforcement discretion, it was in substance unconstitutional executive branch legislation. And in doing so, Obama set the precedent for Trump's own executive actions today.
As I have described, the Founders were profoundly concerned about the corrosive danger of "faction" to democratic institutions. They worried that the people's representatives in government would become more loyal to their party than to the people they represent. Those fears were prescient. Senators apparently now believe their function in confirming the President's cabinet nominations is merely to rubber stamp his toadies rather than provide independent advice and consent.
The Founders knew that the essential characteristic of public servants is what they termed "virtue." Professor White observes that there is "no contemporary synonym" for what they meant by virtue. For the Founders, this term "combined the ideals of integrity and civic responsibility as practiced by elites." It was the "antithesis of corruption, and it was also the antithesis of a narrow pursuit of self-interest." The Founders embraced democracy but also feared the rise of a demagogue who could prey on the prejudices and emotions of the populace to establish himself as a tyrant. Our Constitution would only survive against such a figure if individuals of virtue in the government fought back.
A republic, said Franklin, if you can keep it.
Don’t forget that the President is elected by the states through the electoral college. The popular vote is cool and all, but it means nothing legally.