The Case for a Unitary Executive
And the Prospect of Reviving Congress
Since assuming the office of the Presidency for a second time on January 20, 2025, Donald Trump made his Apprentice reality TV show come to life: “You’re fired!” Within the first month, Trump fired over 200 federal employees of various levels of seniority, and his administration offered to buy out many thousands more—of which upwards of 75,000 have already done so. Aided by Elon Musk and the Department of Government Efficiency, Trump is determined to not only reduce the unwieldy and wasteful size of the federal bureaucracy but to gather around him a group of loyal and aligned subordinates who won’t drag their feet or oppose him as many did in 2016.
Yet Trump’s removal of federal employees has resulted in a slew of federal court injunctions, temporary restraining orders, and court suits. While many of these injunctions came from liberal judges in liberal districts, the phenomenon highlights a major constitutional crisis currently unfolding: does the President have the constitutional right to fire federal employees at will without congressional advice and consent, and must he have this power in order to fulfill his essential function as President—to make sure the laws of the United States are faithfully executed? This is a long-standing and fiercely contested debate that is, in fact, an adjudication of the legitimacy of the modern American state and an indictment of how far we have wandered from the vision of our founders.
To understand the issue, and to entertain a multifaceted solution to a three-dimensional problem, we must make the case for the renewal of a strong unitary executive. And to do that, we must start with the Constitution of the United States.
The American Presidency: The Original Executive Vision
The U.S. Constitution declares that “The executive Power shall be vested in a President of the United States of America.” The most important word in that sentence is the indefinite, singular article “a.” A major debate during the Constitutional Convention was whether the office of the Presidency would constitute a single individual, multiple persons, or a council of executives. The founders rejected both a dual executive and an executive council that would have to concur with the President on all decisions. Instead, they invested the entire power of the executive office into a single man, and for a single purpose: to create an energetic executive. As Hamilton sums it up in Federalist no. 70, “Energy in the executive is a leading character in the definition of good government.”
The quality of political energy—today what we might call “political will”—was a desideratum sought by the 1787 Convention, as they strove to overhaul the failures and deficiencies of the Articles of Confederation. Earlier in the Federalist Papers, Madison had explained that energy was critical for all of government:
Energy in government, is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws, which enter into the very definition of good government. Stability in government, is essential to national character, and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society.
No energy in government, no safety against external and internal threats. Thus, without energy, government would dissolve and leave the people at great risk of conquest or anarchy. It is unsurprising, then, that when discussing the executive branch, Hamilton declared that energy and safety were the primary goals. The ingredients of an energetic executive were unity, duration, proper support, and competent powers, while the key for safety was a dependence upon the people and a due responsibility.
Why was a unitary executive necessary for energy in the presidency? Because, Hamilton explains, “decision, activity, secrecy, and dispatch, will generally characterize the proceeds of one man,” the President of the United States. On the other hand, such unity—and thus the decision, activity, secrecy, and dispatch necessary for the office—would be destroyed either by “vesting the power in two or more magistrates, of equal dignity and authority” (e.g., the Roman consuls), or by “vesting it ostensibly in one man, subject, in whole or in part, to the control and cooperation of others, in the capacity of counsellors to him” (i.e., an executive council).
In addition, the other President’s various powers and constitutional prerogatives (head of the armed forces as Commander-in-Chief, limited veto power, pardoning power, joint power with Congress of making treaties, etc.), his main purpose was to “take Care that the Laws be faithfully executed” (the Take Care clause, Art. II, Sec. 3). The Take Care clause has traditionally been explained in terms of three necessary functions of the President: the right to commission all of the officers of the United States (with the advice and consent of the Senate for high-ranking cabinet officers), the right to superintend executive administrative affairs, and the right to remove officers at the President’s pleasure (executive officials, unlike the judges in the Judiciary, were not appointed for life on the basis of good behavior; they were instead “at-will” employees).
In particular, superintendence over the administrative power of subordinates and the right of removal have been hotly debated. Did the Constitution envision a president with the power to oversee his subordinates, denying them executive and discretionary independence, and if they refused to abide by his instructions and orders, the right of the President to fire such officials and replace them with more cooperative persons? Scholars who have carefully studied the history of executive administration in the national government find that there was almost unanimous agreement among both Federalists and Republicans in the Early Republic that the President was to have plenary power over cabinet heads and other subordinates in the executive branch: “the first seven presidents and most early congresses clearly acknowledged the president’s control over the exercise of discretionary administrative power by subordinates.” There were no “independent agencies” with single heads or plural commissions who could act independently or against the President’s wishes.
What about the removal power? In Federalist no. 77, Hamilton seems to argue that Congress should not only have the role of advice and consent for commissioning executive cabinet members but also on the possible occasion of their removal:
It has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the chief magistrate therefore would not occasion so violent or so general a revolution in the officers of the government, as might be expected if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change, in favour of a person more agreeable to him, by the apprehension that the discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself.
The idea is that stability in government would be facilitated by executive staff who might serve under various administrations, such that the election of a new President every four years did not necessitate a complete overturning of the entire cabinet and all its staff. What mattered most, Hamilton asserts in this passage, is cabinet members’ qualifications and fitness for office, while their employment at the pleasure of the Chief Executive was less important.
Today’s editions of the Federalist Papers insert an asterisk or note at this point, pointing out that Hamilton’s construction on this matter “has since been rejected by the legislature; and it is now settled in practice, that the power of displacing belongs exclusively to the president” (this note shows up first in the 1802 Hopkins’s edition). This is a reference to what is called the Decision of 1789, a series of congressional debates and subsequent laws over the unitary nature of the president and his removal power. In determining the relationship between the President and ranking cabinet members, such as Treasury, War, and Foreign Affairs, Congress decided that such members were at-will employees of the executive branch and thus could be constitutionally removed by the President if he so desired.
Thus, for the first eighty years of America’s national constitution, the President of the United States functioned with considerable executive and administrative power over the federal administration that operated under him. Not only is this what the Constitution and its framers seemed to have envisioned, but it also accomplished the ends for which the executive branch was established. The 1867 Tenure of Office Act brought this era to an end, when Congress successfully prohibited President Andrew Johnson from removing certain cabinet members without Senatorial approval (the Act was later repealed in 1887). The generation after the Civil War witnessed an ascendant Congress and a weakened Presidency, until a more muscular and willful Theodore Roosevelt took the helm in 1901.
The Fourth Branch
Things changed dramatically in the twentieth century with the rise of a progressive political science that sought to re-found American government on a new political basis. In works such as Woodrow Wilson’s “The Study of Administration” (1887), Frank Goodnow’s Politics and Administration (1900), and James Landis’ The Administrative Process (1938), these scholars rejected the idea of separation of powers on the basis that it made government slow, unresponsive, and inefficient. These thinkers also abhorred the fact that a contentious politics was interwoven into the fabric of Madisonian checks and balances, as it relied upon the ambitions of each branch to challenge the others.
In its place, progressives sought to do away with the three branches and separation of powers, and substitute in its place a system of politics and administration. On this paradigm, the polluting nature of politics would be cordoned off from a permanent administrative apparatus staffed by well-educated, disinterested, and expert civil servants who would wisely and efficiently oversee the workings of the national government year after year. Without having to stand for office or engage in electoral politics, the administration would be sheltered from populist whims, able to cooly and scientifically complete its work without the hassle of mounting periodic campaigns or living in fear of being fired by a change in the presidential guard.
This vision of politics and administration did not take effect until the four-term presidency of FDR throughout the Great Depression and WWII—catastrophic events that provided him the pretext to push for substantive political changes at the national level. Two major court cases, one before and one during his presidency, set the stage for the opposing camps on presidential removal power. In the 1926 case of Myers v. United States, the Supreme Court under Chief Justice William Howard Taft (previously President Taft, the only man to be both U.S. President and Chief Justice) struck down an 1876 law requiring advice and consent of the Senate for terminating the postmaster general. Justice Taft argued that the removal power was vested in the President alone and that this power was necessary for the chief executive to ensure that the laws would be faithfully executed.
However, in 1935, in Humphrey’s Executor v. United States, the Court upheld the constitutionality of the 1914 Federal Trade Commission Act, which had only allowed the President to remove agency commissioners for “inefficiency, neglect of duty, or malfeasance in office.” When FDR removed William E. Humphrey (head of the FTC) at will without meeting the above criteria, Justice Sutherland ruled that such was illegal because the FTC was not a purely executive organization; instead, it was a “quasi-judicial, quasi-legislative” agency. The Court upheld the Myers opinion, but only because Myers applied to “units of the executive department.” Cross-departmental agencies like the FTC fell outside of the President’s removal power precisely because their purpose and function came from Congress. In this case, it was Congress’s act of delegating its law-making capacity to federal agencies that imbued the FTC with both legislative and judicial power, yet still capable of executing the law (and thus conflicting with the executive branch).
While Humphrey’s is often pointed to as a death blow to the unitary executive, its ruling was limited; additionally, Myers had not been overturned. Even so, it provided legal reasoning for establishing precedent in how administrative agencies were to function in the coming decades. With the massive expansion of the federal bureaucracy in the 1960s and 1970s, agencies proliferated and were granted more and more power, prerogative, and organizational complexity. Today, the administrative state has become an entirely fourth branch of government, consolidating within it all three legislative, executive, and judicial political powers—the founders’ definition of tyranny. Its heads, commissions, and staff do not stand for popular election and are therefore not accountable to the people; and the President cannot remove them. This is the reason Trump was stymied in his first term and why he is now embroiled in legal cases over those he has fired since January 20.
The current state of affairs is mixed. On the one hand, administrative agencies are more powerful than ever before; on the other hand, a 2020 Court decision in Seila Law LLC v. Consumer Financial Protection Bureau ruled in favor of the President’s power to remove individuals who head agencies (as a violation of the separation of powers). Yet whether this can be applied to agencies headed by multiple-person commissions is another matter. The Trump administration has indicated its willingness to directly challenge the constitutionality of Humphrey’s Executor, so it is only a matter of time before another removal case comes before this Court and we learn the extent to which Seila Law can be applied.
Donald Trump, Red Caesar, and the Imperial Congress
Those who oppose a strong unitary executive today do so mainly for one reason: the consolidation of the entire American administrative state in all its bureaucratic complexity under the head of a single man—the President—would result in a crude monarchy, one without nobility or esteem, but defined by power derived from the “mandate” of the vox populi. Mainstream outlets often add a second, contemporary element: in 2025, this one man would be Donald Trump, who is (supposedly) unfit and unstable for the job, a crude and trigger-happy would-be dictator who has demagogued his way into the White House and his now threatening democracies around the world. On this account, all Americans, and especially those in positions of authority (whether academic or political), are obligated to oppose an otherwise constitutional unitary executive because of the ill effects it would produce contrary to the original ends of American constitutional law. The failure to resist a return of the unitary executive under President Trump would not only result disastrously in an American monarch, but a Red Caesar, from which America could never recover.
While an ends-based analysis of the purpose of constitutional law and its strictures is deemed essential to all good government and is roundly applauded (over and against the dry proceduralism and legalism of originalist textualism), there is another way to construct that teleology in the current debate. We should, in fact, pursue a unitary executive under President Trump because it will not only rescue the constitutional powers of the presidency from the tyranny of administrative bureaucracy, but it will also likely resurrect a defunct Congress.
Under the administrative state, Congress has delegated most of its law-making powers away to independent agencies and their expert heads, commissions, and consultants. In consequence, Congress does very little in the way of real legislating. In 2022, Congress introduced 17,817 bills and resolutions, of which only 365 were passed and signed into law by the President; whereas, in 2022, the administrative agencies introduced 28,033 regulatory and rule-making documents into the federal register that totaled more than 80,000 pages. In 2023, Congress introduced 19,315 bills and resolutions, of which only 274 passed both houses and were signed into law by President Biden; whereas, in 2023, the federal agencies added 90,402 pages to the federal register.
In addition, many of the laws Congress passes are either omnibus spending bills (which are stuffed with all kinds of irrelevant and wasteful spending, handouts, and kickbacks) or generic and sweeping laws that set vague and idealistic goals and then delegate legislative specifics to the agencies already in operation. This system has resulted in what’s known as the imperial Congress. In essence, Congress sits at the top of a sprawling bureaucracy embedded in the executive branch, using the agencies to do its bidding the way a King would commission his delegates, but without genuine oversight or involvement. The imperial Congress arose in the 1970s after the 1972-1974 Watergate scandal. From FDR until Nixon, the power and prestige of the Presidency had grown and been wielded to great effect. But with Nixon’s downfall, Congress saw a chance to gain back lost political ground: legislation like the War Powers Resolution (1973) and the Budget and Impoundment Control Act (1974) severely limited the constitutional powers of the presidency.
As Congress’s powers grew from the 1970s to the early 2000s, so did its committees and offices. The Congressional Budget Office, a federal agency within the legislative branch, was established in 1974 in order to challenge the federal Office of Management and Budget (est. 1970); now defunct congressional agencies like the Office of Technology Assessment (1974-1994) challenged the Department of Defense on military technology and scientific progress. With such congressional agencies came a flood of personnel: in 1891, the House had zero staffers for congressmen and representatives, and the Senate had 39; in 1957, the House had 2,441 staffers and the Senate 1,115; but by 2015, the House had 6,030 staffers and the Senate 3,917. When committee staff are included, the total number of persons working in the House and Senate was more than 20,000 in 2015, costing more than $4.3 billion in overhead that year. Yet this pales in comparison to the 3 million-person army that staffs all the bureaucratic agencies.
The agencies can get away with ruling as they see fit because Congress has delegated its power to them, and presidential removal has been stripped from the White House (both through decisions like Humphrey’s Executor and also through specific removal protections passed by Congress). These agencies then play an important link in financially supporting and shielding Congress from popular accountability. Agencies like the FDA, the CDC, the FTC, and so forth give favorable treatment and preference toward big business and other government entities (e.g., USAID, NGOs, etc.) that make sizable financial contributions toward the districts and campaigns of congressmen and representatives. Congress is imperial because its members do not actually have to make law and face the consequences of their decisions with the public, and because of their hidden but inbuilt financial feedback loops, that makes it difficult to defeat incumbents. We are all familiar with stories like that of Senator Elizabeth Warren, who only makes $174,000 as a senator but is worth anywhere from $12-73 million. While much of this comes from real estate, investment, and her husband’s salary, there are hidden financial streams imbedded deep in the congressional-administration network.
Conclusion
In this system, if the President were to start firing agency heads and thousands of staff members, such that entire federal agencies shut down or couldn’t work properly, or the President were to staff the agencies with personnel sympathetic to his views and policy agendas, the power of Congress and its administrative appendages would be greatly imperiled. Congress might have to take up real law-making once again; representatives may have to seek alternative sources of funding or support; and they may have to face their constituents (the people) and take responsibility for the state of the country.
By resurrecting a strong unitary executive under Donald Trump, empowering him to drastically reduce the size and expense of the bureaucracy and so challenge our imperial Congress, Congress could be goaded into clawing back its legislative power. Fears of a unitary executive under the strong will of a path-blazing leader like Trump are not unfounded: any President who successfully consolidates thousands of agencies and millions of workers under his direct authority would be godlike. Yet just this prospect might kick the Madisonian system of ambition checking ambition back into gear. Congress, aware of its impending insignificance, would once again take up the nondelegation doctrine; it would revoke or severely curtail agency legislative, regulatory, and rule-making powers; it would bring many administrative tasks in-house; it would, in short, once again become a deliberative, legislative body for the country.
A renewed unitary executive, therefore, could solve three problems at once: it could restore to the President his constitutional prerogatives of administrative oversight and removal; it could drastically reduce the size, cost, and despotic power of the administrative branch; and it could turn a defunct and lazy imperial Congress back into the august legislative body it once was.
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