The Unitary Executive Theory and the Presidency of Donald J. Trump

• In Event: Imperial Power, Executives, Origins, and Functions

Abstract

This paper seeks to build on older scholarship (e.g., Calabresi and Yoo, 1988; Barilleaux and Kelley, 2010; Barilleaux and Maxwell, 2017; Crouch, Rozell, and Sollenberger, 2017) to assess the status of the “Unitary Executive” theory in the presidency of Donald Trump. As first articulated by Ronald Reagan’s legal team in the 1980s, the unitary executive theory holds that the U.S. Constitution confers absolutely all executive power on the president and that it gives this power to him alone; there is no portion of executive power reserved, and it is not shared with any other person or institution. As a result, according to the theory, the president may legitimately withhold information from Congress, single-handedly direct the military, and have complete control over the millions of people and the hundreds of major institutions within the vast executive branch, including the Department of Justice and the FBI. Regardless of whether one agrees with the unitary executive theory as a matter of historical or constitutional interpretation, or whether one supports the political projects that the theory has been used to advance, there is the empirical question of how accurately the theory characterizes the presidency today, over four decades after it was first articulated and promulgated. This paper examines the empirical validity of the unitary view in Trump’s presidency, with regard to both its words and deeds. In terms of rhetoric, I find that (thus far) there has been much implicit use of the theory but very little explicit use, in contrast to previous administrations that supported the theory. And in terms of actions, I find many that support the theory (e.g., strong presidential control of executive personnel and their actions) but also many that challenge its validity (e.g., dramatic pushback by some officials). In sort, Trump’s record thus far is oddly mixed: he is both very unitary and very non-unitary, as there is much to please or displease proponents and opponents of the theory. This paper should be of interest to scholars of the presidency, public law, and American political thought and development.

Author

• Graham G. Dodds, Concordia University