July 21, 2021

The Specter of Dictatorship and the Supreme Court’s Embrace of the Unitary Executive Theory

David M. Driesen Professor, Syracuse University College of Law

United States Supreme Court

Democrats may have rejoiced at President Biden’s decision to remove Trump holdover Andrew Saul as the Commissioner of the Social Security Administration. But they should think twice about the long-term effects of claiming a constitutional power to fire a commissioner appointed to a six-year term without invoking the statutory provision allowing for-cause removal.

My book, The Specter of Dictatorship: Judicial Enabling of Presidential Power, explains that the unitary executive theory, which embraces presidential removal of agency heads for political reasons, provides a pathway to autocracy. The Supreme Court, however, has not taken the risk of losing democracy into account in its recent decisions approving the theory. We remain at risk of permanently losing our democracy, and the Court must consider how unrestrained removal authority can be abused in future cases, even if President Biden’s use of it appears reasonable.

The Framers and Ratifiers of the United States Constitution unanimously embraced the goal of establishing a permanent Republican government. Many of the debates on the Constitution revolved around figuring out how to use government structure to avoid autocracy— “despotism” in the language of the period. The Constitution contains only one removal provision, and it authorizes the Senate to remove the President and other government officials after impeachment by the House, not presidential removal. Accordingly, Alexander Hamilton opined in the Federalist Papers that removal of officers requires the consent of the Senate. He explained that the Constitution sought to prevent appointment of “obsequious instruments” of presidential “pleasure.” The Constitution sought to substitute loyalty to the law and the Constitution for loyalty to the head of state by requiring all officers of the government to swear an oath to protect and defend the Constitution.

Yet, the Supreme Court has embraced the unitary executive theory, which maintains that the President has sole control over the executive branch of government. In Seila Law LLC v. Consumer Financial Protection Bureu (CFPB), the Court held that the Constitution gives the President the power to fire the sole director of the CFPB for political reasons and that a statute only authorizing for-cause removal was unconstitutional. The Court opined that this power to fire officials arbitrarily helped the President “take care that the laws be faithfully executed.”

The Seila Law Court, however, stopped short of overruling precedent accepting for-cause removal protection for members of independent multimember commissions performing quasi-legislative and quasi-judicial functions. At the same time, it eroded that precedent by only endorsing commission independence when the commission performs no executive functions. Just last month, however, the Court may have further undermined that earlier precedent in Collins v. Yellen, by declaring the nature of the power an agency exercised irrelevant to the constitutionality of for-cause removal protection.

The litigation of these cases took place during a period when President Trump was using his removal authority not to secure faithful law execution but to undermine the rule of law and tilt the electoral playing field in his favor. President Trump, for example, fired the head of the Department of Homeland Security and most of its component agencies in part to establish immigration policies that defied U.S. law protecting asylum seekers. Trump fired Inspector General Atkinson precisely because he obeyed the law requiring communication of whistleblower complaints to Congress and made it clear he would fire people who testified truthfully about the President’s efforts to pressure Ukraine’s government into announcing an investigation of President Biden’s son—Hunter Biden.

Neither the majority nor the dissent in Seila Law and Yellen, however, discuss how a President can use unlimited removal authority to undermine the rule of law and democracy. This is a rather shocking omission in light of the weaponizing of removal during the Trump administration as a tool for that very purpose.

The Specter of Dictatorship shows that elected authoritarians around the globe have used centralization of the chief executive officer’s control over the executive branch of government to destroy democratic governments—relying principally on case studies of democratic erosion in Turkey, Hungary, and Poland. Like most democratic governments, these governments embraced independent (or multiparty) prosecutors, media regulators, and electoral commissions before electing an autocrat to the top post. After an autocrat came to power, however, these governments amended their Constitutions or passed legislation creating governments like those that the unitary executive theory points to—allowing the chief executive to remove incumbents and people critical of government policies with his supporters.

The prosecution service, once brought under the chief executive’s control, protects the ruling party’s supporters and persecutes its opponents. Trump’s efforts to secure announcement of corruption investigations against political opponents emulated a tactic of Hungarian strongman Viktor Orbán, whose prosecution service announces corruption investigations prior to elections only to quietly drop the charges afterwards to avoid embarrassing judicial reversal. Partisan takeover of electoral commissions allows the autocrat to tilt the electoral playing field through gerrymandering and efforts to burden voting by opposition groups. Thus, even though elections take place regularly in “new autocracies” like Hungary and Turkey, the autocrat and his party become quite entrenched. Parochial Americans look at the Republicans’ new election bills as a revival of Jim Crow, but the provisions authorizing legislative takeover of electoral commissions and the increasingly precise and suffocating gerrymandering have much in common with the techniques elected autocrats use to remain in power for very long periods without clear majority support. Finally, the new autocracies weaken opposition media and strengthen supportive media through economic pressures and licensing, although Turkey has supplemented these tactics with jailing of opposition journalists in recent years. In Hungary, the economic and licensing pressures alone destroyed most of the opposition media.

The Supreme Court’s unitary executive jurisprudence may accomplish through judicial fiat what elected autocrats abroad achieved through the more democratic processes of legislative actions and referenda reshaping the Constitution—a freeing of the chief executive from checks and balances constraining his power. In the United States, tradition rather than constitutional structure most robustly supports prosecutorial independence. The Court’s jurisprudence already makes it impossible to fully adopt Cass Sunstein’s suggestion that Congress make the DOJ independent to safeguard us from the sorts of abuses witnessed during the Trump administration. The federal media and election regulators, the FEC and the FCC, are independent agencies. The Court’s signals in Seila Law and Collins suggest that the Court will at some future date considering ending their independence. Doing so would clear the way for a President to use these agencies to attempt to throttle opposition media and strengthen the current drive to make elections unfair.

The problem, however, proves broader. A President with autocratic tendencies can use just about any government power to reward his friends and punish his enemies. President Trump showed this on numerous occasions. For example, he pushed the Pentagon not to give Washington Post owner Jeff Bezos’ Amazon a cloud computing contract and suggested that Governors must not criticize him if they wanted to get federal assistance to fight COVID-19. The ability to arbitrarily fire government officials supports that kind of abuse.

The Court will have occasions in the future to consider whether to extend or curtail its dangerous endorsement of the idea that the President must have a political removal authority so that government officials “fear and obey” the President. The Court has gone far in Seila Law and Collins to relax justiciability barriers to private challenges to the internal checks and balances that help hold a Democracy together. In both cases, no case or controversy existed because the government did not defend the constitutionality of the federal statutes involved and the President had not removed the agency director. The Court appointed an amicus to defend the statutes providing for-cause removal protection for agency heads and heard the cases anyway. In Collins, the Court blew past statutory prohibitions of lawsuits by shareholders in Fannie Mae and Freddi Mac, using a logic that gives every citizen in the country a potential right to challenge the independence of government agencies.

If the Court is to remain true to the Founders cherished goal of establishing a permanent Republic, it must consider the potential of a unitary executive to be an autocratic executive. While Biden’s removal of Commissioner Saul seems consistent with the rule of law. We may remain one lost or stolen election away from losing our democracy permanently through the usual process—abuse of removal authority to destroy the rule of law.

Executive Power, Separation of Powers and Federalism