“In his opening weeks back in office, President Trump is asserting power in a way that pushes hard on, and sometimes past, the boundaries of executive authority,” according to Cass R. Sunstein, Professor of Law (Harvard University).
“One of the most important of those boundaries involves his relationship with independent regulatory agencies. Mr. Trump is the first president since the 1930s to assert control over many of them, and this assertion of power will almost certainly be tested in the Supreme Court.”
Cass R. Sunstein explains the historical development of constitutional law on executive authority and unitary executive theory.
“Mr. Trump is operating under the theory that the executive branch is unitary, in the sense that Article II of the Constitution places executive power in a single person, the president, who gets to control every high-level official who executes federal law (and plenty of lower-level ones, too).”
Sunstein argues that “The president is not a king. In its most extreme version, the unitary executive theory is a form of invented history, a modern creation that threatens to change, and in important ways to undermine, the operations of the national government.”
Sunstein traces the key Supreme Court cases and legal precedents related to executive authority.
He asserts that “the best historical research throws the whole idea of a unitary executive into serious doubt. In the Federalist Papers, Alexander Hamilton, who rejected a plural executive, also insisted that the president lacks unlimited removal power.”
So, Alexander Hamilton and other architects of the U.S. Constitution (1789) refused to embrace the notion of a unitary executive. The presidential power of appointment does not extend to a power to remove federal government officials at a whim.
“And defenders of the unitary executive appear to have misunderstood the Decision of 1789. The most careful evidence suggests that, at the time, a majority of members of Congress did not embrace but actually rejected the view that Congress lacks power to protect subordinate officials in the executive branch from presidential control. Indeed, independent agencies are hardly a creation of the New Deal — they have been with us since the founding era.”
The First Federal Congress of the United States passed legislation creating the Departments of War, State, and Treasury during 1789. The U.S. Senate confirmed the President George Washington’s nominees to head those departments the same year, establishing the precedents for presidential cabinet nominations.
Sunstein concludes that “there are decent arguments in favor of reforms that would increase presidential control over the administrative state. But the broadest current claims about executive authority are a creation of the 21st century, not the 18th. They are a form of hubris. They strike at the heart of our founding document.”
Sunstein, Cass R. “This Theory Is Behind Trump’s Power Grab.” The New York Times (26 February 2025).
Several of the legal and political science studies of unitary executive theory are:
Barilleaux, Ryan J. and Christopher S. Kelley, eds. The Unitary Executive and the Modern Presidency. College Station, TX: Texas A&M University Press, 2010.
Birk, Daniel D. “Interrogating the Historical Basis for a Unitary Executive.” Stanford Law Review 73 (January 2021): 175-236.
Crouch, Jeffrey, Mark J. Rozell and Mitchel A. Sollenberger. The Unitary Executive Theory A Danger to Constitutional Government. Lawrence, KS: Kansas University Press, 2020.
I have not had a chance to read these books and articles and cannot vouch for them.
Brian Sandberg: Historical Perspectives 