The temptation of Donald Trump to give the United States government a turn in the right direction authoritarian It is not just about his overall initiatives. It also involves his attempt to alter the balance of power in favor of the president, setting a precedent that could affect federal institutions well beyond the end of the tycoon's second administration.
One of these aspects, probably the main one, is the question of theunitary executive. By appealing to this legally controversial theory, Trump would like to subject the entire federal administration to himself and free himself from the constitutional controls of Congress and independent agencies, with the specious justification of having to eradicate the Deep State opposition, the bureaucratic apparatus.
According to The Donald's narrative, federal officials appointed by his predecessors or entered the civil service through competitive examinations are plotting to hinder the implementation of Trump's program, preventing the tycoon from achieving the objectives for which he was re-elected by popular acclaim to the White House for a second term last November.
A cinematic premise
Who saw Vice - The man in the shadows (2018), Adam's biopic McKay on Dick Cheney, George W. Bush's vice president, masterfully played by Christian Bale, will recall a scene set on September 11, 2001.
After the United States was hit by al-Qaeda attacks, Cheney/Bale is the least worried member of the government in the bunker under the White House where ministers and high-ranking federal officials are holed up. For the vice president, thenational emergency It is not only a threat to American security, but also and above all an opportunity: the terrorist attack represents the opportunity to put into practice the theory ofunited executive.
The viewer learns what it is about in another scene, set at an unspecified time in the mid-1970s. The young Cheney, at the time deputy chief of staff to President Gerald Ford, meets with a lawyer from the Department of Justice destined to become a future Supreme Court justice, Antonin Scalia.
Cheney wants advice on how to strengthen the president's authority, at a time when it is at an all-time low because of the Watergate scandal that overwhelmed Ford's predecessor in the White House, Richard M. Nixon, forcing him to resign. Scalia's solution is the doctrine of the unitary executive: in the exercise of its functions, the President enjoys absolute authority and whatever he does is legal precisely because it is the head of the executive who does it. In reality, the conversation between Scalia and Cheney never took place and the theory of a unitary executive began to be discussed only a few years later, during the presidency of Ronald Reagan.
Nonetheless, McKay's film brought to the attention of the general public this interpretation of the Constitution which, forgotten during the administrations of Barack Obama and Joe Biden, has returned to relevance with the presidency of Trump, not so much with the former as with the latter.
The Presidency of George W. Bush and the Unitary Executive
In presenting Cheney as an advocate of an interpretation of the theory of the unitary executive in terms of a sort of secular dogma of the legal infallibility of the president of the United States, McKay makes another distortion. George W. Bush he made use of this model essentially only in two well-defined areas: the use ofexecutive privilege, that is, the president's power not to reveal information (a sort of invocation of state secrecy), and the creation of offices with executive functions but formally of a consultative nature which, as such, did not require the appointment of the holder to be subject to confirmation by the Senate and therefore to the latter's control.
On the one hand, Bush took refuge behind presidential privileges to withhold documents regarding the Environmental Protection Agency's ban on regulating vehicle greenhouse gas emissions in the state of California, the national energy plan developed by a task force led by Cheney, and Cheney's involvement in an operation to discredit Joseph Wilson IV, a former diplomat who had exposed the manipulation of intelligence sources to justify the invasion of Iraq and the overthrow of Saddam Hussein's regime in 2003.
From above, Bush appointed Don DiIulio to head the White House Office of Faith-Based and Community Initiatives, a body charged with funding programs to assist the poor through religious organizations; appointed Tom Ridge to head the Office of Homeland Security, the body that dealt with national security after the attacks of September 11, 2001, until Congress authorized the creation of an ad hoc department; and assigned Donald E. Power to manage the reconstruction of the areas of Louisiana hit by Hurricane Katrina.
What does the Constitution provide or what is it intended to state?
Compared to McKay's exaggeration on the legality of any act of the tenant of the White House, the theory of the unitary executive limits itself to stating that the president exercises sole and unquestionable authority over the executive branch and, therefore, has the control absolute.
The first paragraph of the first section of the second article of the Constitution states: "The executive power shall be vested in a President of the United States of America". From this synthetic statement the observation would derive that all the officials of the federal administration, at whatever level they operate, would be subject to the directives of the president and would not enjoy their own autonomy.
This reading would also benefit from another consideration. In the early years of their existence, the United States did not have a president. The figure was created with the Federal Constitution of 1787 to remedy the dysfunctions of the previous pact between the entities that had given birth to the United States, the Articles of Confederation and Perpetual Union, which proved inefficient because it involved a mix of legislative and executive power, dividing government functions between committees composed of members of Congress without providing for the figure of a head of state.
However, the overcoming of fragmentation of the executive power with its attribution to a single person did not necessarily mean giving the president absolute control over the federal government and administration. Most of the constituents had returned from a war fought against Great Britain, arising from what had been considered the despotic degeneration of the authority of the English sovereign George III.
Mindful of the past, the drafters of the Constitution of 1787 wanted to prevent a similar tyrannical drift of the powers of the president and his executive functions. This explains, for example, the fact that the appointment of holders of the departments and others officials on the part of the president is subject to the essential Senate confirmation to take effect. Without the approval of the Senate, the President's appointees may not take office, except in the case of appointments made when Congress is not in session, and the appointees may perform their duties pro tempore pending the convocation of the upper branch of the federal legislature.
The question of the heads of the ministries
Just them presidential nominations represent one of the main tests of the theory of the unitary executive. The Constitution is silent on the degree of subordination of federal officials to the president once the former have taken office. The power of recall of the president is, therefore, a legally controversial matter.
Le more in that 1789 created the departments (the U.S. version of the ministries) of Treasury, War, and Foreign Affairs (later renamed the State Department) mentioned the removal of their owners by the president, without attributing any role to the Senate. However, he did mention their dismissal in a completely incidental manner, in relation to where to store the secretaries' papers if they were "relieved of office by the President of the United States."
In the 1867 Congress he tried to regulate the matter, scaling back the president's power in favor of the Senate. Overriding a veto from then-White House tenant Andrew Johnson, lawmakers passed the Tenure of Office Act, a law that prohibited the president from removing office holders without the consent of the Senate.
The constitutionality of the provision was almost intuitive: if presidential appointments required confirmation by the upper branch of Congress, the Senate should also have authorized removals. When Johnson removed War Department Secretary Edwin Stanton without Senate approval, the House opened impeachment proceedings against the president. Johnson ultimately saved himself from conviction and the loss of the presidency by a single vote, arguing that Stanton had been appointed by his predecessor in the White House, Abraham Lincoln, and that, therefore, he was not obligated to retain in the cabinet a figure whom he had not chosen but someone else.
The Tenure of Office Act was then repealed in 1887, and the President's autonomy in dismissing department heads has never been questioned again, although officeholders who have fallen out of favor or become politically incompatible are generally politely asked to resign before being undiplomatically shown the door.
Even in this field, however, Trump wanted to demonstrate that he enjoys a unchallenged power already during his first term. When on December 20, 2018 James Maddis announced that he would leave the post of Secretary of Defense on February 28 due to disagreements with the tycoon's decision to withdraw the special forces operating in Syria, to humiliate him publicly The Donald anticipated the end of his mandate, moving it to December 31, 2018 and making the decision known with a simple post on the then Twitter (now X).
The Problem of Independent Federal Agencies
Trump believes that the power to dismiss federal officials at the sole discretion of the president applies to anyone who holds a presidentially appointed office, and thus applies even to members of regulatory agencies such as the Federal Trade Commission, which oversees antitrust enforcement and consumer protection, or the Federal Communications Commission, which monitors the telecommunications system. But these agencies, by definition, are supposed to be autonomous and independent of the government in order to carry out their institutional duties, which potentially include scrutinizing the actions of the White House.
Supporters of the unitary executive cite the ruling of the Supreme Court on the 1926 case Myers v. United States: The justices concluded that although postmaster appointments required Senate confirmation, President Woodrow Wilson had done a legitimate act in firing Portland's postmaster, Frank S. Myers, in 1920 without consulting the upper branch of Congress: making the removal conditional on Senate approval would violate the separation of powers between the executive and legislative branches.
The postmaster of a post office certainly did not have a sensitive role like that of the director or a member of an independent federal agency. This was seen in 1933, when the Democratic president Franklin D. Roosevelt removed William Humphrey from the Federal Trade Commission, to which Republican Calvin Coolidge had appointed him, because he considered his attitude not to be in harmony with the policies of the New Deal.
On this occasion the Supreme Court agreed that the decision was unconstitutionalThe verdict had no direct impact on Humphrey, who had since died, but his case set a precedent until the ruling was scaled down in a 2020 ruling.
In case Seila Law LCC v. Consumer Financial Production Bureau, the judges ruled that it was illegitimate limit il power of the president to remove the director and members of an independent agency for "just cause" only and thus prohibit their removal for political reasons, unless the structure of the agency in question has characteristics similar to those of the Federal Trade Commission.
The Supreme Court that ruled in 2020 did not yet have the third judge appointed by Trump, Amy Comey Barrett. According to some authoritative jurists such as Cass R. Sunstein, who spoke on the subject in the “New York Times” in recent days, it is likely that now that the Trumpian majority in the Supreme Court has been strengthened with the entry of Barrett, the last constraint indicated by the 2020 verdict, that of agencies similar to the Federal Trade Commission, will also be removed. If this hypothesis were to materialize, the controlled would obtain full control over its controllers.
Meanwhile, also in this field, already in the first mandate, Trump gave a tangible demonstration of his claim to enjoy absolute authority as president by virtue of the unitary executive. In 2017, he first ordered FBI Director James Comey to suspend investigations into the connections between the tycoon's entourage and those responsible for Moscow's interference in the 2016 election campaign; then he relieved Comey of his duties.
It is no wonder, then, that the heads of federal agencies are rushing to align themselves with Trump's positions. For example, last Wednesday, the director of the Environmental Protection Agency announced the revocation of numerous measures to contain climate change, a notoriously devastating phenomenon whose seriousness the tycoon denies not only the seriousness but even the existence of.
The case of federal employees who won public competitions
Trump he made use of the theory of the unitary executive to claim the right to dismiss any employee federal, even those who have been hired through a public competition and are not carrying out a role assigned following a political nomination.
His position was supported by Project 2025, prepared already in 2023 by the conservative think tank Heritage Foundation in anticipation of The Donald's re-candidacy for the White House in 2024. According to this report, which has among its main editors Russell Vought, placed by Trump to head the government's Office of Management and Budget, it is necessary to guarantee the president the unconditional loyalty of the federal bureaucratic apparatus and prevent some official from boycotting its policy.
This is a very old argument, dating back to the administration of Andrew Jackson, in office from 1829 to 1837, not surprisingly Trump's most beloved president. However, we are no longer in the first half of the nineteenth century. Starting with the launch of the Pendleton Civil Service Act, promulgated in 1883, an increasing number of jobs in the federal administration are assigned through comparative evaluations among candidates and their attribution is consequently removed from the president's choices in order to prevent access to public employment from fueling vote trading.
For similar reasons, the Hatch Act of 1939 prohibits federal government employees—with the obvious exception of the president and vice president—from engaging in political activity even outside of work hours and, consequently, prevents the firing of federal employees for political reasons.
Last month, in his capacity as head of the Department of Government Efficiency (DOGE), Elon Musk He showed up at a conservative rally brandishing a chainsaw, to symbolize his intention to cut out the deadwood in the federal administration, that is, employees who do not align themselves with Trump's positions.
Yet, at least for the moment, the axe could only fall on around 20.000 employees hired on fixed-term contracts that do not fall within the permanent staff protected by the legislation still in force against dismissals that are not for "just cause". To comply with this clause, Musk invented a questionnaire to be submitted to federal employees to force them to report what they had done that was useful on the job, with the apparent hope that the answers could be gleaned from them to justify the firing of politically unwelcome individuals.
Despite Musk's threat that failure to complete the questionnaire within two days would be tantamount to a resignation letter, some departments, such as Defense and Homeland Security, as well as the FBI, communicated to their employees that they were obligated to respond to the DOGE initiative and effectively sabotaged Musk's ploy.
Trump in the footsteps of George W. Bush
Trump has followed the path traced by George W. Bush in the use of a unitary executive. On the one hand, he has invoked, albeit in vain, executive privilege regarding investigations into Russian interference in 2016 elections and onstorming of Capitol Hill by his supporters on January 6, 2021.
On the other hand, the appointment of Musk to the direction of the DOGE, which is not a real ministry, is the paradigmatic example of the attribution of executive functions to apparently consultative figures to circumvent the legislative power's checks on their actions. A similar case is that of the designation of Tom Homan as deputy director for “implementation of removal operations,” a euphemism for the deportation of illegal immigrants.
Hogan – who did not need the Senate's approval to take office as he officially plays the role of a mere consultant to the president – appears to have a lot of knowledge of the management of these interventions. more power actual of the Secretary of the Department of Homeland Security, former South Dakota Governor Kristi Noem, whose nomination instead had to go through the approval of the upper branch of Congress.
When Trumpian Reality Surpasses Cinematic Fiction
Some barriers still resist the pressure of the theory of the unitary executive with regards to the will of Trump to exercise a absolute control on the organic of thefederal administration. For example, a court barred the Treasury Department from sharing sensitive information about federal employees, such as their compensation, with DOGE.
In addition, the Supreme Court has barred the White House from freezing the approximately $2 billion in funds already allocated to USAID, the independent agency that provides development funding and assistance to troubled foreign states. However, under Trump, McKay's misconceptions about the unitary executive seem to have begun to move from the realm of Hollywood hyperbole to political reality.
This is confirmed by the ruling issued by the Supreme Court on July 1st last year in relation to the case, later dismissed, which saw Trump accused of having fomented the insurrection on January 6th 2021. The verdict, in fact, established thecriminal immunity of the president in all actions performed in the exercise of their functions. The Supreme Court has thus ended up giving a formal legal form to the interpretation of the unitary executive that in McKay's film placed the tenant of the White House literally above the law.
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Stefano Luconi teaches History of the United States of America in the Department of Historical, Geographical and Ancient Sciences of the University of Padua. His publications include The “Indispensable Nation”. History of the United States from its origins to Trump (2020), US institutions from the drafting of the Constitution to Biden, 1787–2022 (2022), The black soul of the United States. African Americans and the difficult path towards equality, 1619–2023 (2023). The race for the White House 2024. The election of the president of the United States from the primaries to beyond the vote of November 5 (2024).
