Trump’s Executive Orders Build Toward Dictatorial “Unitary Executive” Power

During his first month in office, President Donald Trump has signed a plethora of executive orders that have proclaimed a dramatic expansion of the powers of the executive branch. In his latest, issued on February 18 and entitled Ensuring Accountability for all Agencies, Trump aims to bring all independent federal regulatory agencies under the direct control of the chief executive. Unsurprisingly, the 47th president of the United States has already referred to himself as the “king” and may even envision himself as emperor, making the Napoleonic statement “He who saves his Country does not violate any Law” after several judges blocked a slew of his executive actions.

David M. Driesen, university professor at Syracuse University College of Law, says that Trump’s executive order to curb the authority of independent agencies is illegal and that the president is using unitary executive theory to establish a dictatorship. In the interview that follows, Driesen addresses Trump’s recent actions as well as the debate over unitary executive theory — a legal theory which says that the U.S. president can rule over the executive branch with absolute power. In two recent cases the far right Supreme Court has signaled increasing openness to this theory, once considered a fringe interpretation of the Constitution. Legal scholars and advocates, including Driesen, are now sounding the alarm that Trump’s seizure of dictatorial executive power may succeed with the court’s approval.

Driesen is the author of many academic articles and books, including The Specter of Dictatorship: Judicial Enabling of Presidential Power.

C. J. Polychroniou: On February 15, Donald Trump proclaimed on his Truth Social network that “He who saves his Country does not violate any Law.” The post raised a lot of eyebrows, as this quote is often attributed to Napoleon, who crowned himself emperor. Trump then went on to sign an executive order that allows him to claim power over independent agencies, which would turn the presidency into an office of almost unlimited powers. Many constitutional experts say that he cannot do that — so what are the constitutional powers and limits on the U.S. presidency?

David M. Driesen: Demagogues and tyrants frequently claim that they are saving the country and denigrate the need to follow law. But the Constitution requires the president to “take care that the law be faithfully executed,” and Trump is doing the opposite, attacking law at every turn.

The order asserting control over independent agencies usurps congressional authority to structure the government under the Necessary and Proper Clause. It also asserts a power to “adjust” statutes (referred to as “obligations” of independent agencies) to fit the president’s political preferences. This amounts to usurping congressional authority to amend statutes. It also calls for defunding activities that the president does not support, thereby usurping the power of the purse. The fundamental limit on executive power is that it must be used to faithfully implement, not violate or impede, statutes and further their purposes.

Does this mean then that Trump’s executive order to curb the authority of independent agencies lacks legality?

Yes, the order is illegal. But the courts will probably not adjudicate it. Instead, it will likely play out in a number of illegal decisions by agencies, many of which the courts will likely overrule. In the first term, the Trump administration lost about 77 percent of its regulatory cases. That is a lawbreaking record. Normally, the executive branch loses only about 30 percent of these cases.

There is a debate over the unitary executive theory, which argues that the president possesses sole authority over the executive branch of government. What gave rise to the idea of a presidency with virtually unlimited powers, and what are the arguments in favor of it?

The Constitution says that the president has “executive power.” The Supreme Court infers from this statement an intention to give “all” executive power to the president and not allow anybody else to exercise any part of that power, something the court emphasized in its decision granting presidents immunity from criminal prosecution. But the court, in Seila Law LLC v. Consumer Financial Protection Bureau, does admit that there are some exceptions to this reading of the Constitution, for “inferior officers” and members of multimember commissions exercising only quasi-legislative or judicial power. I would say the exceptions, including some that the court does not mention, are so striking as to undermine the rule the court has constructed. After all, the Appointments Clause authorizes Congress to deny the President any say in who becomes inferior officers by authorizing the judiciary to make those appointments. Similarly, the requirement of Senate confirmation for “Officers of the United States” and the Constitution’s only removal provision, which authorizes removal by the Senate after impeachment, show that the Constitution’s framers provided for checks and balances rather than sole presidential control over the executive branch.

Many scholars, including yourself, contend that unitary executive theory is a dangerous idea. What makes it so dangerous? How is it used? And is Trump the first president seeking to implement the unitary executive theory?

The court has inferred from the president’s power to execute law an authority to remove at least the single heads of administrative agencies without any reason at all. Arbitrary removal authority is dangerous because, as the court said in Seila Law, this power will make government officials “fear and obey” the president. That means that they will likely carry out illegal orders and can be fired for faithfully implementing law, as their oath of office demands. That paves the way for statutes a president does not like to become a dead letter and for all sorts of heinous things that the law does not authorize. And that is exactly what the Trump administration is doing.

All working democracies that I know of have independent agencies. They have found them necessary for functions where apolitical fairness is especially important. For that reason, agencies regulating the media, elections and carrying out prosecutions usually have some form of independence, whether provided by law or custom. This is true of the U.S. as well (with the Department of Justice independent by custom and the Federal Election Commission and Federal Communications Commission by law). Elected autocrats who have attacked and often destroyed democracies do away with independent agencies and purge the government of neutral civil servants in favor of loyalists. That is what Trump is doing.

Many recent presidents seem to believe in the unitary executive theory to some degree. But the presidents before Trump were not trying to establish a dictatorship and therefore limited their attacks or left alone agencies that protect democracy, regulate finance (the Securities and Exchange Commission, Consumer Financial Protection Bureau and Federal Reserve), or protect labor (the National Labor Relations Board).

Some of Trump’s more contentious actions may reach the Supreme Court. But isn’t it the case that the current Supreme Court has already embraced the unitary executive theory?

The court has indeed embraced the unitary executive theory, claiming (wrongly in my view) that original intent supports it in Seila Law and hyperbolically declaring that the president constitutes a branch of government by himself in the presidential immunity case. But an older line of cases upholds arrangements in tension with the theory, accepting the constitutionality of independent agencies in Humphrey’s Executor and the independent counsel established after Watergate in Morrison v. Olson. If the theory is carried to its logical extreme, the civil service might be unconstitutional, but the court rejected that idea long ago in Myers v. United States, the 1926 case that first suggested a unitary executive theory. So, we may find out soon whether the court will use amateur history to overturn or undermine more than 100 years of practice and precedent, thereby helping end constitutional governance in the United States. I expect that challenge to arise in cases contesting Trump’s decisions to fire members of the National Labor Relations Board and Merit Systems Protection Board.

Is it an exaggeration to say that the specter of dictatorship looms large in today’s United States?

It is not an exaggeration. It is a consensus view of many well-informed lawyers and law professors. Even the relatively conservative American Bar Association (ABA) has suggested that Trump has attacked the rule of law and felt obliged to issue a statement about its importance:

The administration cannot choose which law it will follow or ignore. These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear. The ABA will do its part and act to protect the rule of law. We urge every attorney to join us and insist that our government, a government of the people, follow the law.

The world is also scared of Trump. And it’s obvious that Congress isn’t stopping him. Can the courts block his efforts to be a dictator?

Elon Musk and the “Department of Government Efficiency” cutting off funding is very egregious and is producing pressures on Republicans to constrain Trump’s destruction of the government. So, Congress’s current abdication may change.

The courts could at least slow Trump down, and the lower courts will. But the Supreme Court may amend the Constitution to facilitate dictatorship by further extending the unitary executive theory.