This week or next, perhaps this morning in Collins v. Yellen, the Supreme Court may issue another decision advancing the unitary executive theory.
It’s a puzzle in several ways: why are the judges and academics who otherwise are decentralizing states-rights federalists and opponents of the modern administrative state so in favor of centralized and expansive presidential power over the administrative state – in ways that would tend to expand executive regulatory power?
The answer draws on the political bogeyman of the “deep state” and the modern culture war. It also draws on a long Anglo-American political framing of country vs court – the people vs. the insider elites, “Real America” vs. the secular “swamp.” Conservatives think that nationally/electoral college elected presidents are a more likely populist/pro-business/pro-religion check against secular elite egghead expert bureaucrats.
Before explaining, let me note that I am working on a book tentatively titled “The Imaginary Unitary Executive,” which you can find summarized here in an Atlantic article last summer and here in my amicus brief filed last fall in this case. My article “Vesting,” questioning the textual and originalist basis for the unitary assumptions of indefensibility and exclusivity, will appear in the Stanford Law Review in March 2022. SSRN link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3793213 I also have a paper “The Real Decision of 1789,” on the First Congress’s rejection of the unitary model. SSRN link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3597496. I also recommend Stephen Skowronek’s article.
The term “unitary executive” emerged in the 1920s, but it was apparently not used to describe the Founding era until the 1940s, and the phrase was not used widely until the 1980s. Why the 1980s? During the Reagan era, conservative politicians and scholars sounded a handful of themes that remain familiar today: The courts were too elitist. Congress was ineffective. The New Deal administrative state had grown too large and too independent. Beltway-insider bureaucrats were out of touch with the public, and needed more centralized presidential power to rein them in. A Cold War demanded a strong presidency.
It was attractive to project these perspectives back onto the Founding, and to imagine a singular president as the democratic representative of the American people during times of crisis. From Eisenhower to Reagan, the Republicans won 6 out of 9 presidential elections, and believed they had realigned a “silent majority” on presidential/national issues (the Cold War/national security plus cultural/religious issues). But the House continued in Democratic hands almost entirely 1930 to 1994. Thus there was more confidence in presidentialism for a nationalist/conservative presidential check on Congress.
It was a defense of Nixon’s conduct, too, both at the time and especially as a post hoc justification for his conduct during Watergate (and Robert Bork’s obedience to Nixon, too). Reaganites were happy to embrace it, but not all Reaganite judges bought it, neither Rehnquist nor O’Connor. But Scalia was more influential than either of them on the conservative legal movement.
Ultimately the two wings of the Reagan movement – Evangelicals and libertarians – bought it as an ideology. It makes sense that Catholic and evangelical conservatives believe in unitary hierarchical power vs. secular Deep State bureaucracies. All of these themes and grievances predated the tenures of George W. Bush, Dick Cheney, and Donald Trump. The unitary myth helped elevate them and centralize their power. On balance, the unitary theory protected and empowered Trump: it weakened Mueller’s investigation (because Mueller had to steer clear of Trump’s finances and aggressive subpoenas to avoid dismissal); it allowed Trump to dangle pardons and obstruct justice with a claim of impunity and presidential immunity; it strengthened Barr’s hand as an extension of Trump and limited the DOJ; it served as his successful defense during the Ukraine impeachment; and it delayed Congress’s subpoena powers and weakened all checks and balances.
The Madisonian separation of powers failed to stop Trump. Instead, federalism — the decentralization of election administration, a domain insulated from presidential interference unitary administration – was his downfall.