The Unitary Executive Theory

Thoughts on constitutional history

Photo by John Bakator on Unsplash

History is the most underrated part of modern education. It is especially the most poorly understood, in my opinion. Even more so than philosophy is misunderstood, it is seen as an assemblage of vaguely interesting stories in the average, modern person’s view, with little relevance to the here and now.

It is surprising to me, at some level, that when we think of the “greatest story ever told” our immediate answer is not “the history of human civilization”. Now, I am a good Humean who won’t make the mistake of making a universalist “objective” claim that “the history of human civilization” is the greatest story ever told. Because, I mean, come on. It is a normative claim. But it’s us guys. Surely us humans should not think so lowly of ourselves. We did, after all, build literally everything ever built. Humans, as far as we know, have said everything that’s ever been said. It seems almost like we’re living inside the greatest story ever told, and we don’t even recognize it.

History is not the past. It is the story we are writing right now.

“It was early in the Seventeenth Century that Francis Bacon remarked on three recent inventions already transforming the world: the compass, gunpowder and the printing press. Now the links between the nations first forged by the compass have made us all citizens of the world, the hopes and threats of one becoming the hopes and threats of us all. In that one world’s efforts to live together, the evolution of gunpowder to its ultimate limit has warned mankind of the terrible consequences of failure.

And so it is to the printing press--to the recorder of man’s deeds, the keeper of his conscience, the courier of his news--that we look for strength and assistance, confident that with your help man will be what he was born to be: free and independent.”

— John F. Kennedy, Address to the American Newspaper Publishers Association, April 27, 1961.

For his part, Kennedy had immense reasons to distrust the “mainstream media”. He was constantly battling their intrusion into his personal stories in feeding a bottomless public appetite for palace intrigue.

And yet, here Kennedy made clear in full sight of history, with his words recorded by that very press, a concession: that a free people relies on the ability to discern truth from lie, and power can never be trusted to make the distinction.

This is why Pete Hegseth has destroyed the Pentagon press corps. Because Trump, Hegseth and cretinous figures lurking around these offices of public trust, would very much like their questionable deeds go unquestioned by history.

Authoritarians believe there is no difference between truth and power, because if the former is allowed to operate separate from the latter, then it might be the case that ordinary people may develop some capacity for moral discernment. They might be able to understand that, for instance, dark and extractive interests are trying to influence the Trump Administration’s disorderly flagellations of power.

Elements of the Venezuelan opposition for their part are trying to shape the administration’s actions such that he takes action to decapitate the Maduro regime.

One can only imagine, knowing Trump and the vulgar interests around him, that some oil interest rights are being sought from credible opposition figures for a post-Maduro regime to extract war spoils. Because, as history has shown us, this is exactly who Trump is.

These are all pretty historical events, if you ask me.

The United States international reputation is now destroyed. It now operates with the character of a crime syndicate on the world stage. Demands for protection money. Abandonment of any values-based policy, and a regression to crude economic transactionalism.

Intellectual deviants like Ben Shapiro continue to insist it’s best we preserve the captaincy of these power structures in a status quo arrangement. To yield any power to a future Congress with Republicans in the minority, would be even worse than the situation such as it is now.

The international trade system has been destabilized, our security alliances have collapsed, we are making deals with the Saudis, handing our most advanced chips over to the Chinese, driving our economy into the doldrums. Things would have been far worse under a Kamala Harris, Shapiro and other right-wing commentators will insist. It will certainly get even worse if Republicans do not continue down this path at all costs. Except for when Trump decided that he liked Zohran Mamdani—that was nearly a step too far.

We’re on the verge of a war with Venezuela that the American public does not want, hasn’t been sold on, and is being underserved by a supine Congress that has decided that the War Powers Act is legislation in desuetude.

The Supreme Court is continuing its warpath towards undoing the 19th century reforms, enacted after the assassination of President Garfield, to bring an end to the Spoils System where government employees were chosen based on party loyalty.

In a fever dream of sorts, conservative intellectuals imagine that the Founding Fathers—pointing to Hamilton’s defense of a “vigorous” executive in Federalist No. 70 and a positively autistic reading of the Vesting Clause—argue that Congress never had any business when it acted in 1883 to pass the Pendleton Civil Service Reform Act. It was signed into law by President Chester A. Arthur.

The act ended patronage in the civil service, creating a system of merit, competitive examinations and auditable bureaucratic processes to ensure that functions of government, mandated by law, be carried out without political interference.

To put it in layman’s terms, Congress decided that the guy who takes payment at the gate to Yosemite National Park shouldn’t be hired or fired based on his loyalty to whoever sits in the Oval Office. Which is exactly the kind of thing that was going on pre-1883, and a system of patronage not entirely unrelated to the assassination of President Garfield. It was, in fact, part of the motivations for bringing an end to it. This history is dramatized in the Netflix series Death by Lightning, which is on my watchlist but I haven’t yet gotten to.

A small band of malcontents from the American right emerged after Watergate, including men like former Attorney General Bill Barr—serving in both the George H.W. Bush Administration and in Donald Trump’s first administration—who developed major burrs up their asses about how both the Watergate and Iran-Contra scandals went down. Barr’s sense was that these investigations should never have happened, that the president should be understood to constitutionally operate from within some zone-of-exclusion that emerges from un-reviewable plenary powers. That, even when the president engages in constitutional misconduct, or in the ordinary sense can be seen to be engaging in criminal activities, it should be understood to be a separation-of-powers issue to have any other instrument of republican government—short of Congress’ impeachment power—to intercede.

This is the unitary executive theory.

It’s now an interpretive frame within which a majority of the Supreme Court holds court. All six Republican-appointed justices have adopted some version of the theory. This became clear in Trump v. United States, when the court decided that it should be basically impossible to hold a president criminally responsible for criminal conduct while in office. It’s not theoretically impossible, but as Amy Coney Barrett aptly noted in her separate opinion—concurring in part—the holding created an evidentiary standard that makes most conceivable evidence that could ever exist in any reasonable thought experiment—say conversations and actions related to selling presidential pardons—beyond the subpoena power of the courts.

So while, yes, a president can technically be charged for a crime under the holding, most of the kinds of evidence one would need to achieve a conviction, are put beyond prosecutorial subpoena by their read of the United States Constitution.

It’s what the Founders intended. They insist.

I have conservative friends who have legal backgrounds. I have sparred with various people on social media from that perspective. They will insist up and down that there are technical, colorable arguments that make sound the notion that while it is unfortunate that the president can get away with murder, the constitution demands he be permitted this, absent Congressional action.

Well, we have a Congress that is laying supine before the Washington Mall. So that’s convenient.

Conservative legal theorists are fucking insane, what can one say? The justices that have adjusted us—unwillingly—to this new constitutional design—which they insist is restorative—have happily accelerated us into the abyss of lawlessness. Something the courts, in theory, should oppose.

I had a brief encounter with legal scholar Norman Spaulding at Stanford University a few months back, where he insisted that such theories must be met with serious engagement within the legal community. As I did to him in persona, I will say now—I disagree!

I mean, can you imagine sitting down with James Madison and explaining to him how his carefully planned system of government ended up playing out? With legal scholars, of a right-wing variety in the future, arguing that he had meant the separation-of-powers doctrine to unburden the president from having the worry of violating the laws in the course of his faithful execution of the law.

I hear his disquiet from beyond the veil of time, loudening in the accent of 18th-century Virginia gentry, “what is the meaning of these wicked stories?”

“Well James, here’s the thing: over the past forty years, ideological actors who call themselves ‘conservative legal scholars’ made a big deal of the presumption that Congress could make laws regulating the process by which postal clerks are hired and fired, so as to not make them political actors.”

Here, such is the corrupt pedigree of Justices Clarence Thomas and Brett Kavanaugh, they jump up to say, “No! Article II demands the President must have a free hand in such decisions! How else shall we rectify this ideological capture of this administrative state?”

I’m fucking serious. This is how they think. They’re lunatics—historically speaking. And for reasons that escape me, we have somehow given people who see history through this disfigured lens, the power to make that determination.

Well, James, if you see Benjamin Franklin, tell him for me: we’re trying to keep the republic. But the quality of presidents, House members, senators and jurists has made this historical trust a somewhat more wobbly enterprise.

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