February 4, 2025

A Unitary Executive on Steroids Threatens to Crush the Constitution

Christopher Wright Durocher Vice President of Policy and Program


About halfway through his first term as president, Donald Trump declared, “I have an Article II, where I have the right to do whatever I want as president.” In the first three weeks since his second inauguration, the Trump administration seems to be taking this belief in a “unitary executive” to its extreme ends.

Proponents of the unitary executive theory argue that “[t]he executive is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him.” This version of the unitary executive assumes that the president may directly control the activities of all departments and agencies within the executive branch.

A more muscular version of the unitary executive asserts that the president may even depart from the law in some circumstances, usually related to national security. This version of the unitary executive was most famously summarized by former President Richard Nixon during his interview with David Frost, saying, “When the president does it, that means it is not illegal. By definition.” While not a wholehearted endorsement of that view, the Supreme Court’s decision in Trump v. U.S. certainly gives it more credence or at least gives presidents more cover to disregard the law.

In mid-2019, when Trump began more frequently referencing Article II of the U.S. Constitution, which vests executive power in the president, most observers assumed that it reflected his belief that he could have directed the U.S. Attorney General to shut down the investigation of then-Special Counsel Robert Mueller.

This go around, Trump seems to be taking to heart his belief that he “has the right to do whatever [he] wants as president.” From his first day in office, Trump has declared a culture war on diversity, equity, inclusion, and accessibility programs, on the phantom threat of Marxists, on so-called “gender ideology,” and the ill-defined boogeyman “wokeness,” and he is using his asserted absolute control over the executive to conduct his war.

In just a few short weeks, we’ve seen a slew of Executive Orders (EOs) and other actions seeking to combat these so-called threats and reduce government accountability. EOs are not legislation and do not empower the president to impede or subsume Congress’s or the judiciary’s constitutional role. And yet, through these executive actions, Trump has attempted to impound federal funds, suspend career civil servants, fire inspectors general and members of independent regulatory commissions whose terms cannot be cut short absent cause, unilaterally rescind previously finalized collective bargaining agreements, reportedly eliminate or weaken the Department of Education, and empower private citizens to make personnel decisions and access or take control of crucial government systems and agencies.

The establishment of the Department of Government Efficiency—complete with its trollish acronym DOGE, referencing the meme coin Dogecoin, and the installation of Elon Musk as its head—has served as the epicenter of much of this action. DOGE, which despite its name is not a congressionally established federal executive department but a temporary advisory committee to the president, is ostensibly meant to “moderniz[e] Federal technology and software to maximize governmental efficiency and productivity.”

Musk’s attacks this past weekend on the congressionally established and funded USAID belies that description of his and Trump’s DOGE project. Similar to confusing and potentially unlawful efforts to coerce federal employees to accept buyout packages, Musk and DOGE’s efforts to dismantle USAID reflect a desire to root out “dissenting” voices from the federal government, a troubling proposition in its own right.

But in these cases, the dissent is not about individual federal employees’ statements or actions, it is about the very act of doing their jobs—jobs that exist because of congressional authorizations and appropriations. One look at Musk’s statements on his social media platform X, including his assertion that USAID is “an arm of the radical left-globalists,” reveals this is less about efficiency and more about ideology. But regardless of its motivation, without congressional authorizations (and with no real congressional oversight at all) DOGE ground USAID’s work to a halt. The firing of inspectors general and suspension and potential firing of career civil servants in DEIA office reflect this same contempt.

DOGE’s most troubling move may be its efforts to gain access and possibly control over the U.S. Treasury’s payment systems through the Bureau of the Fiscal Service. This takeover risks the disclosure of the sensitive personal and financial information of millions of people and businesses to unauthorized individuals. Moreover, if DOGE’s potential takeover of the Bureau of the Fiscal Service is meant to empower Musk, and by extension Trump, to unilaterally prevent congressionally authorized and appropriated and lawfully due payments from being made by the Treasury regardless of whether it is motivated by ideological objections or to combat government waste, then we may be facing a destabilizing separation of powers crisis.

The unitary executive theory has always been a dangerous idea given the risk of presidential overreach and abuse of power. And Trump is practicing a unitary executive on steroids, brazenly stepping on Congress’s constitutional power and daring a House and Senate controlled by his party to stop him. Congress can and should reclaim its role, and as litigants file suits, the federal judiciary can also weigh in. Without pushback from the other two branches of government, however, there’s no telling how hulking Trump’s unitary executive may become.

 

Executive Power, Separation of Powers and Federalism