The Unitary Executive

Brettschneider and Calvelli (2024) argue that the unitary executive theory's true ascendance was marked by Clinton letting the independent counsel statute expire, leaving politics rather than law as the constraint on presidents. Two years after this article was published, the unitary executive seems to be even further ascending. Trump v. Slaughter, argued December 2025, asks the Court to overrule Humphrey's Executor and end for-cause removal protections for independent agency commissioners. Trump v. Cook, argued January 2026, tests whether the Federal Reserve's removal protections survive a president who claims cause on grounds the law never contemplated. The Solicitor General called Humphrey's "a decaying husk." Chief Justice Roberts echoed this sentiment. The FEC, the FTC, the SEC, the Federal Reserve, and all other insulated executive role depend on protections that the Court appears poised to invalidate. The article's prescription for confronting the criminal president, including a revived independent counsel and an insulated DOJ, presupposes a constitutional framework the Court is on the verge of dismantling. This is even the case with Powell, Trump has routinely threatened to fire him over tarrif related quarrels, yet despite no actual cause the DOJ has become the president's instrument for manufacturing the legal grounds to remove officers he cannot lawfully fire on his own. The DOJ is no longer a check on presidential lawbreaking. Trump has completely immunized himself from any meaningful litigation.  Rather the DOJ has become an instrument of presidential will against political opponents. Legal-institutional reform cannot reach this. Democratic recovery can no longer come from any internal mechanism. The only mechanism left in tact is seemingly that of pressuring a future presdient into a alternative reading of the constitution. 

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  1. Dylan GonzalezMay 5, 2026 at 7:59 AM

    Popular pressure carries some weight, but it is not enough to bring about institutional reform. In Federalist No. 69, Hamilton contrasted US Presidents from British kings by arguing that while corrupt kings are “sacred and inviolable,” corrupt presidents can be impeached, removed, and prosecuted “in the ordinary course of law.” In reality, the impeachment process is rarely used and difficult to enforce. Articles of impeachment are hard enough to issue, but the lofty Senate supermajority is a virtually insurmountable barrier in today’s partisan era. Trump v. United States (2024) adds another complication. The Court ruled that for core Constitutional powers (like pardons), the President had absolute immunity from criminal prosecution. The President could be historically unpopular and still wield his immense power as he leases. If he wanted the President could pardon all criminals, lob a nuclear warhead, forcibly dismiss Congress and pocket veto, and more.

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