He’s the Boss: Unitary Executive Theory and Workplace Authoritarianism

As President Trump continues to amass authoritarian power, we should consider the shocking role of the Supreme Court in facilitating his power grab. Trump v. United States declared the President immune from prosecution for breaking any criminal law as long as he uses his Presidential powers to commit his crimes. It allowed Trump to get away with gross violations of the Constitution’s foreign emoluments clause. It foreclosed all feasible paths for enforcing the 14th Amendment’s Insurrection Clause against Trump and other participants in the attempted coup of Jan. 6.

In the emergency docket this year, the Court has been overwhelmingly solicitous to Trump’s assertions of unconstrained Presidential power. For the time being, it’s a-okay with Trump destroying the Department of Education, deporting undocumented immigrants to countries where they may face torture, firing 16,000 civil servants from 6 agencies without cause, even firing heads of independent agencies, deporting U.S. citizens on the pretext that the 14th Amendment doesn’t establish birthright citizenship, canceling millions of dollars of research grants already awarded, etc.

As I have previously argued, the Supreme Court’s lawless and massively destructive actions regarding Presidential power have little to do with Constitutional reasoning (which it often doesn’t bother to present in the emergency docket), but with its authoritarian mindset. Here I’ll trace their mindset to a particular understanding of executive power derived from the authoritarianism of the capitalist workplace.

The emergency the Court sees in the shadow docket is not that Trump is attacking the core Constitutional right of citizenship, illegally impounding Congressionally appropriated funds, or deliberately destroying the capacity of government agencies to execute the laws. The emergency is that anyone is challenging his exercise of executive power. On their view, when Article II of the U.S. Constitution declared that “The executive Power shall be vested in a President of the United States,” “this does not mean some of the executive power, but all of the executive power” [Scalia, dissenting in Morrison v. Olson, 487 U.S. 654 (1988)]. This view is known as “the unitary executive.”

But what, exactly, is the executive power? Here is where what my colleague Leah Litman calls “vibes“–conservative ideology posing as Constitutional reasoning–help out. They are thinking: C’mon, you know what being the chief executive means! It means he’s the boss! And not just any kind of boss. Not the boss of a public corporation who is accountable to an independent Board of Directors. No, he’s more like the boss of a private firm that he owns and is entitled to rule at his own pleasure, according to his private interests, whether these be personal profit, vengeance, mass adulation, self-glorification, or bullying everyone around him. It’s not anyone’s place to question his motives! To be the boss means he’s got the power, and he can use it however he likes. It’s a view of Presidential power not coincidentally aligned with Trump’s view of his power as CEO and owner of his family firm, which he has run like a mob boss. He sees his election as simply adding the U.S. government to his other businesses within the Trump Organization.

Essentially, the Court is importing an authoritarian view of executive power drawn from the common law of master and servant into its interpretation of the President’s executive power, for the purpose of overturning or at least temporarily disregarding Federal statutes and even Constitutional provisions that limit his power. The U.S. inherited the feudal common law of master and servant from England, and tinkered with it in the 19th century by adopting the rule of employment at will: the right of the employer to fire an employee at any moment for any reason or no reason at all (along with the corresponding right of the employee to quit). The Court sees this absolute right of removal of any civil servant as a core executive power of the President. This power entitles him to effectively shut down administrative agencies or irreparably damage their ability to function by firing its essential employees. More generally, the unitary executive theory is a way to completely detach the President’s power from any Congressional limitations. The Court sees these as unconstitutional infringements on the executive, not as constitutional means to ensure that the President exercises his power for the sole purpose of faithfully and impartially executing the laws and not for corrupt purposes such as self-enrichment, rewarding cronies, or punishing his enemies.

There is a long history of American federal and state courts citing the common law of master and servant to overturn statutes that establish employee rights and thereby limit employers’ power over them. Karen Orren has argued that this practice (which predates the Lochner era of libertarian attacks on worker protections) is rooted in a long contest between the courts and the people with their democratically elected legislatures over the ultimate seat of sovereignty. The common law is simply judge-made law not grounded in prior legislative acts. It’s judges making stuff up by the seat of their pants, mostly according to their conservative inclinations. Through the doctrine of judicial review, the courts have claimed the last word in interpreting the law. As Chief Justice Roberts recently put the point, “The most important thing for the people to understand is . . . They don’t elect us. If they don’t like what we’re doing, it’s just too bad.” The Supremes will go on overturning Congressional statutes attempting to limit the President’s executive power until what was once thought to be the most powerful branch of government is reduced to a merely advisory body. Not quite burning down the Reichstag, but close.

Yet what else could the executive power of the President be, if does not amount to making him the authoritarian boss of the Executive branch? Here is where the Supremes could learn a lesson if they actually practiced the originalism that they profess to follow. My colleague Julian Mortenson has undertaken a comprehensive survey of the original understanding of the executive power when the U.S. Constitution was written. The short answer is that the executive power contains no inherent powers of its own. It is simply the power to “take Care that the Laws be faithfully executed,” where the Laws originate from other authorities altogether–namely, Congress. The executive power is the power to carry out the orders of Congress as expressed in its statutes.

In his capacity as executive, then, the President is more the agent of Congress than a principal in his own right. Congress is therefore free to specify and thereby limit how the executive carries out its orders. So, in the interest of ensuring that civil servants have the requisite competence to achieve the public purposes Congressional statutes are aiming at, and are not reduced to being mere sycophants of the President, Congress is free to limit the President’s removal power by enacting civil service protections. In the interest of insulating policy making from partisanship and corrupt Presidential motives, Congress is free to establish independent agencies.

But what about the specific powers of the President enumerated in Article II of the Constitution, such as being commander-in-chief of the armed forces, negotiating treaties, and granting pardons? Aren’t these inherently executive powers? No. When the Constitution was framed, these were not understood to be “executive” powers, but “prerogative” powers. These distinctions matter, because they expose the legal baselessness, danger, and corruption inherent in the “he’s the boss” theory of the unitary executive.

Still, you might wonder whether these distinctions really do matter, in the face of Justice Roberts’s confident assertion that “If [the people] don’t like what we’re doing, it’s just too bad.” Roberts concedes an exception to this generalization in the case of impeachment–an instrument of removal that is so difficult that it has succeeded only 8 times in U.S. history.

Yet Roberts is either ignorant of U.S. history or afraid to inform the people of the many instruments at their disposal to rein in a lawless Court. The U.S. has a long history of popular constitutionalism–the idea that the people, not the judges, are the ultimate arbiters of what the Constitution means. Besides impeachment, the people’s representatives in Congress can freeze judges’ salaries, impose a unanimity rule on Court decisions, strip the Court of jurisdiction over certain cases, regulate its procedures, require Justices to step down to District court positions after a fixed term, shrink or enlarge the Court, even completely reorganize it. Instead of having the same 9 Justices decide all cases, it could, for example, constitute the Supreme Court as a randomly selected panel of Appeals Court judges chosen for each case. Moreover, the people themselves can vigorously organize and demonstrate against the Court’s lawlessness, launch campaigns for comprehensive reform of the Judicial branch, and vote for Congressional candidates who promote reform. The American people have successfully contested the Court’s authority in the past. It’s high time that we do so again.