Escaping the tyranny of King George III was one of the underlying causes driving the colonists during the American Revolutionary War. With victory achieved and independence from the United Kingdom gained, the leaders of the new nation had to decide, among other issues, how much power the newly created position of the President of the United States (POTUS) should have. This is the question at the heart of the unitary executive theory.
It's a discussion that has been raging for hundreds of years. Some supporters of the unitary executive theory interpret the Constitution to state that the president's authority wields complete power over the executive branch of the U.S. government, which extends to the hiring and firing of any person employed beneath them. Opponents argue that the power is not that extensive, everyone is subject to the rule of law, and independent agencies are important in all branches of the federal government.
Precedent for the President
While the Framers intended to provide a set of clearly defined laws and guidelines for the fledgling nation, the U.S. Constitution is constantly interpreted and reinterpreted in courtrooms. Still, the Constitution leaves little doubt that the concept of a unitary executive is a tangible part of the design. Article II, Section 1 of the Constitution states that “the executive power shall be vested in a president of the United States of America.”
A plain reading of that means the executive branch leadership rests on the shoulders of one person — POTUS. Unlike the other two branches of government, a single person is in charge. There's no committee, no special council. Alexander Hamilton, in Federalist Paper 70, argued that the executive must be a single person to "energetically" enforce laws and be accountable for their actions. A council system, Hamilton argued, could lead to delays and blame-shifting.
This is not, however, an argument against checks and balances by other branches of government. Separating legislative and judicial actions serves to ensure POTUS cannot become a version of the authoritarian the colonists rebelled against. Hamilton was a strong proponent of checks and balances between branches of government
While the existence of the unitary executive isn't denied, the authority they carry is a topic of debate. Those who support a strongly unitary presidency assert that POTUS has the power to hire and fire every person in an executive agency. They read Article II, Section 1 as a broad mandate of power. This is less supported by the text of the Constitution. For example, critics of a unitary executive ask: If the president has such broad powers, why did the Framers bother to so clearly enumerate what powers the president has in the rest of Article II? They could have just given the president absolute power over the executive branch and left it at that.
But proponents reason that it's essential for those in positions of importance and power, such as cabinet members, to share a mindset with the chief executive. Having a secretary of defense who neither agrees nor gets along with POTUS would be a disaster waiting to happen if the POTUS couldn't fire them.
Conversely, those who advocate for a weaker executive see the ability of Congress to make regulatory agencies and bureaus in the executive branch that aren't subject to firing by POTUS as essential to a defense against tyranny. They argue that having someone in place to oversee presidential misconduct or overreaching is pointless if POTUS can fire them at will.
The Decision of 1789 and Other Precedents
The Decision of 1789 is often used as an interpretation that POTUS was intended to be given hiring and firing powers over all executive branch officers. This is the term given to a month-long debate in 1789 by the first-ever Congress of the United States. It coincided with the creation of the Department of War, Department of Foreign Affairs, and Department of the Treasury. These departments were all part of the executive branch. So, did the first Congress give the president removal power over these departments? It's still being debated. Congress eventually passed bills for each department that skirted the issue, but indirectly mentioned that the President might remove a department head.
The debate again arose in 1926's Myers v. United States. This case established that POTUS has the authority to hire and fire everyone in the executive branch with two notable exceptions: multi-member expert agencies that don't wield substantial executive power and inferior officers with limited duties and no policymaking or administrative authority.
A much more controversial decision was handed down in 1935 in Humphrey's Executor v. United States. After a commissioner in the Federal Trade Commission (FTC) refused to step down at President Franklin D. Roosevelt's request, Roosevelt fired him. While the suit was about recovering funds after a potentially illegal firing, it became a landmark ruling and a source of debate.
The decision held that the Federal Trade Commission Act, which only allowed a president to remove a member due to "inefficiency, neglect of duty, or malfeasance in office," outweighed the powers of the unitary executive.
More recently, the interpretation found in Myers played a role in Seila Law, LLC v. Consumer Financial Protection Bureau (CFPB). Seila, under investigation by the CFPB, argued that because the CFPB was run by an unelected official who couldn't be removed by POTUS, it was a violation of the separation of powers demanded by the Constitution.
Lower courts disagreed with Seiwa, but the Supreme Court of the United States (SCOTUS) ruled 5-4 that the CFPB's structure was unconstitutional. SCOTUS clarified that CFPB could keep a single director but that person was subject to POTUS' removal power.
An Uneasy Balance
It's common for the party occupying the White House to advocate for a strongly unitary executive, while those not in power warn of an overreach or presidential power. Having department heads who share the same political ideology as POTUS makes sense, but it's also important to have guardrails in place to keep abuses of power at bay.
While the owner of a company has to follow certain labor rules if trying to fire an employee, in their role as the unitary executive POTUS generally doesn't suffer from those restrictions. As for the unitary executive theory, it remains a much-debated interpretation of the Constitution.
Related Resources
- Implied Executive Powers (FindLaw's Article II)
- Article II: The Executive Branch (FindLaw's U.S. Constitution)
- The President as Law Enforcer (FindLaw's Article II)
