If you watched last week, you might have noticed that Democrats spent a lot of Brett Kavanaugh’s Supreme Court hearing browbeating him over his apparent belief in something called the “unitary executive.”
So what is that? Although there do exist some ridiculous versions of “unitary executive theory,” the correctly understood idea of the unitary executive is the only possible and reasonable interpretation of the U.S. Constitution.
Article II, Section One begins thus: “The executive power shall be vested in a president of the United States of America.” That’s all there is to it.
Absent an amendment that adds additional persons in whom executive power is vested, there can be no other legitimate locus for it that is not rooted in the president’s own authority. The only exception is the exceedingly rare case mentioned in the 25th Amendment, in which a president’s appointees decide he has been rendered unable to serve and remove him from power.
So, when people speak of the power of the bureaucracy, or “the deep state,” or even the “stable state,” they refer to an illegitimate and unconstitutional exercise of power. The entire executive branch mission is derived from the president’s constitutional mission to “take care that the laws be faithfully executed.”
The idea of a unitary executive does not require or imply an expansion of executive powers but, rather, is a limit on where those powers can reside. Congress and courts maintain their own powers, though, and these include many ways of preventing or countermanding presidential actions. Congress can override vetoes, investigate presidents with complete independence from the executive, impeach presidents, deny them money or authorization for policies, and, if this provision were properly respected, withhold permission for presidents to wage war. The Senate can also refuse to confirm a president’s nominees and refuse to ratify treaties he signs.
Courts, meanwhile, can block executive actions that fall afoul of the law or the Constitution — they had to do this often to former President Barack Obama — and they hold the executive and his officers in contempt, if necessary. In criminal trials, Supreme Court precedent has established uncontroversially and sensibly that a president cannot hide behind executive privilege to avoid criminal liability.
There are two reasons why Democrats made such a fuss over the unitary executive. One is that they resent Kavanaugh for his D.C. Circuit Court ruling that the Consumer Financial Protection Bureau, whose head is by law unaccountable to Congress and the president, is structured unconstitutionally. That issue could well come before the Supreme Court, testing Democrats’ apparent view that the CFPB director is in himself a fourth branch of government.
The Democrats’ second reason is that they anticipate a crisis over the question of whether President Trump can constitutionally fire special counsel Robert Mueller. That’s an easy question to answer. Yes, of course the president can fire Mueller. The fact that a bipartisan group of senators felt the need to pass a law making it harder to do so was an admission that he has that power.
We need hardly add that Trump’s presidency wouldn’t last much longer if he did fire Mueller; he would, rightly, be impeached if he did so. But to deny that he has that power is to deny what the Constitution says. As a special counsel under the Department of Justice, Mueller works for Trump.
Whether or not he tries to fire Mueller — the White House has repeatedly denied that Trump intends to do so — Supreme Court precedent in U.S. v. Nixon has established uncontroversially that presidents lack an “absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” Kavanaugh agreed with this holding during his hearings. Even Trump could not use executive privilege to evade the courts’ authority in a criminal proceeding.
That said, Congress would be right to impeach any president who fired the people investigating him for criminal wrongdoing. It isn’t at all clear that Mueller is investigating Trump, but Republican and Democratic senators have made clear that his firing would be an impeachable offense.
We have repeatedly argued against expansion of executive power. This is consistent with the idea of the unitary executive spelled out in the simple language of the Constitution.
On this Constitution Day, it is worth reflecting that in recent years, the dangerous expansion of executive authority has taken two forms. The first covers various attempts by the executive to usurp congressional power, as when a president illegally declared war or claimed the right to make recess appointments without a Senate recess. The second is the attempt to install independent agency heads (as at the CFPB) who are unaccountable to the elected branches of government.
If you fear an over-powerful executive, you should be afraid of Kavanaugh’s questioners, not of Kavanaugh himself.
