Editor’s note: This article is the second in a series on the Supreme Court’s Term.
Executive power was on trial this term at the Supreme Court. In the two tax subpoena cases, Trump v. Vance and Trump v. Mazars, the Court examined the limits of presidential immunity. In Seila Law v. Consumer Financial Protection Bureau, the Court was asked to rule on the extent of executive control over administrative agencies. Finally, Department of Homeland Security v. Regents of the University of California examined the extent to which a presidential administration can exercise hasty unilateral discretion, throwing process to the winds.
The Court embraced an expansive vision of executive power. But at the same time, the opinions recognized limits, delivering a fierce rebuff to the quasi-monarchical understanding that the Trump administration has all too often seemed eager to advance. The Court largely embraced the more conventional understanding of the “unitary executive” theory – a paradigm originating in the 1980s, stating that the president should exercise a high level of control over the operations and personnel within the executive branch (grounded in the idea that the president is the only executive officer directly accountable to the democratic will of voters). But the Court rejected far-reaching claims about the size, scope, and impunity of the executive branch that have at times been cast as natural extensions of this “unitary” concept.
Trump’s Dream of an Unfettered Executive
President Trump appears to believe in a model of absolute immunity and essentially unfettered executive discretion. His responses to the Russia investigation and his behavior in the Michael Flynn and Roger Stone cases have showcased his reflexive antipathy to accountability. As I discussed in a Just Security article with Samuel Issacharoff a few weeks ago, these instincts were on display in his initial response to the COVID-19 pandemic, with his claims of “absolute authority” – in this instance often paired with a complete abdication of responsibility. From the beginning of his administration, Trump’s efforts to impose travel bans revealed his desire to rule by fiat. Recent deployments of Department of Homeland Security (DHS) personnel to Portland and Chicago are the most recent manifestations of his penchant for unfettered executive dominion.
Trump’s instincts are clearly authoritarian, but he has showed himself willing to argue for limits on presidential power – when it allows him to get his way, that is. This flexibility was evident, for instance, in his disingenuous arguments about the limits of Obama’s presidential power in the DACA case DHS v. Regents of the University of California.
Within the Trump administration, however, the President’s own opportunistic understanding of executive power (that is, vast, so long as he’s the one wielding it) has become linked to a far more cogent and highly theorized paradigm, with roots reaching back decades.
The Birth of Radical Conservative Theories of Presidential Power
The “imperial presidency” has a long history, with leaps in presidential power during the Civil War, under Theodore Roosevelt, during the World Wars, and at the outset of the Korean War. But the phenomenon reached its apex under the Nixon administration. President Nixon and his associates worked hard to expand the power of the presidency at the expense of the other branches. Administration officials such as Robert Bork, who infamously fired special prosecutor Archibald Cox during the Watergate scandal’s “Saturday night massacre,” subscribed to an expanded vision of presidential power, embracing freedom from accountability. But there was a backlash in the wake of Watergate. New legislation was passed to restrain the executive, and court decisions such as United States v. Nixon recognized limits to presidential immunity and secrecy.
William Barr is the most prominent defender of a particular, controversial vision of a “unitary” and ascendant executive branch within the Trump White House. There may be a degree of self-serving servility in the Attorney General’s behavior. But as Caroline Fredrickson does well to point out, Barr is not simply a sycophantic “lap dog,” fulfilling Trump’s whim as a loyal acolyte. The direct roots of this ideological crusade lie in the Reagan years.
Barr worked in the Reagan White House, along with other prominent lawyers such as Edwin Meese, C. Boyden Gray, and Theodore Olson. Olson’s Office of Legal Counsel served as a sort of “brain trust” for the administration’s legal agenda. First in tussles with congressional Democrats over deregulation, and then in the battle over the independent counsel in the Iran-contra affair, the administration’s lawyers formulated novel theories of executive power designed to grant advantage in inter-branch battles.
At the same time, the Federalist Society was emerging as a force in America’s legal culture, serving as a partner with conservative lawyers in government as they formulated theories such as originalism and the unitary executive, which largely served conservative interests. These theories were designed, at least in part, to advance a particular suite of interests and, perhaps, to cast a veil over underlying motives. But they have won a high degree of apparently sincere ideological buy-in that remains strong among varied constituencies in our legal culture. The extent to which the most vigorous conservative proponents of vast executive power remain committed to this understanding under Democratic administrations remains questionable, however (consider, for example, conservative commentary on DACA/DAPA, the Paris Agreement, or the Iran nuclear deal, all of which in some way involved allegations of executive overreach).
The Evolving Contest Over the Nature of the “Unitary” Executive
These conflicts came to a head at the end of Reagan’s second term in 1988 in the famous Morrison v. Olson case, which originally emerged from conflicts surrounding the regulatory state during Reagan’s first term. The case had its roots in an attempt by Congress to exercise its oversight power by subpoenaing documents from the Environmental Protection Agency (EPA), creating implications both for inter-branch battles over regulation and, more important for this term’s cases, for debates over presidential removal power of officers of the executive branch.
In Morrison, a court led by Reagan appointee William Rehnquist soundly rejected arguments grounded in the new theories developed over the previous eight years, ruling constitutional (7-1, with recently appointed justice Anthony Kennedy recused) the provision in the post-Watergate Ethics in Government Act of 1978 that asserted that the a special prosecutor may only be removed for good cause and after appropriate process. Most of the Court’s conservatives were not yet convinced by the unitary executive model or by originalist reasoning.
But Justice Scalia’s solo dissent became a sort of talisman for an emerging coterie of conservatives. It foreshadowed the rise of the style of originalist jurisprudence that would reach its zenith in the 2008 Second Amendment case District of Columbia v. Heller. In his dissent, Scalia laid out an expansive conception of the president’s removal power, which has gained a high degree of currency among many of today’s movement conservatives.
Scalia made the case that the Vesting Clause of the Constitution – which states that “the executive Power shall be vested in a President of the United States” – “does not mean some of the executive power, but all of the executive power.” Since the power to bring prosecutions is one of the core competencies of the executive branch, no prosecutor can be “independent” of the president. According to Scalia’s understanding, federal officers must either serve at the president’s pleasure, or report to an official who is directly accountable to the president’s will. That is to say, the executive branch is “unitary.” It must be the president’s to command and control.
Current Justice Samuel Alito was the Deputy Assistant Attorney General during the Reagan administration, and he also embraced a version of the “unitary executive” theory. But Alito’s story illustrates an important gap that appeared even within the conservative legal movement itself. As John Harrison wrote in 2017, two distinct strands developed. Speaking at his confirmation hearing in 2006, Alito laid out the distinction clearly, saying:
I think it’s important to draw a distinction between two very different ideas. One is the scope of Executive power, and often Presidents or occasionally Presidents have asserted inherent Executive powers not set out in the Constitution. And we might think of that as how big is this table, the extent of Executive power. And the second question is when you have a power that is within the prerogative of the Executive, who controls the Executive? And those are separate questions. And the issue of, to my mind, the concept of unitary Executive doesn’t have to do with the scope of Executive power. It has to do with who within the Executive branch controls the exercise of Executive power, and the theory is the Constitution says the Executive power is conferred on the President.
Hence, in Alito’s view it appears that while the executive branch had to be the province of the president, the territory itself has limited bounds.
Pushing the Bounds of the Unitary Executive Theory
By contrast, Barr emerged from the Reagan years with a far greater desire to see the executive branch’s territory and powers expand and to protect its activities from scrutiny of other branches. In the first months of the George H.W. Bush administration, as the head of the Office of Legal Counsel, he drafted a famous internal memo on Common Legislative Encroachments on Executive Branch Authority – a playbook for administration officials to both protect and expand the power of their branch. The controversy surrounding another 1989 memo, which empowered the FBI to detain fugitives overseas without prior approval from the countries in which they were seized, previewed Barr’s later approach to the Mueller report. He released a misleading summary, intended to deflect suspicion (although in this case the House did successfully subpoena the document and the full story came out). As Deputy Attorney General later in the same administration, and then later in interviews during the George W. Bush administration, Barr expressed an extraordinarily expansive view of a president’s unilateral war-making authority, with essentially no limiting principle and no need to turn to Congress for approval.
Barr’s vision was not merely of a unitary executive, but of a preeminent executive. He favored a presidency shielded from accountability and empowered to act unilaterally, with little consultation with the other branches. The other branches were little more than distractions or obstacles to be brushed aside. Even to this day he does his best – as he did in his November 2019 speech to the Federalist Society – to muddy the substantial distinctions between the unitary executive theory and his quasi-monarchical vision.
At the outset of the Gulf War, it appears that George H.W. Bush was ready to push the limits of executive power if he had to. But he preferred not to directly challenge Congress as long as he could. So, as much as his administration was staffed with lawyers willing to push the boundaries of executive power, the issue did not come before the Court in high profile clashes.
It was under George W. Bush that the more extreme versions of the conservative vision of executive power were really tested. Administration officials such as Dick Cheney and Donald Rumsfeld brought to the administration a radically expansive view of the president’s prerogatives. John Yoo, who spent 2001-2003 working in the administration’s Office of Legal Counsel, was one of the key architects of this vision, famous for authoring memos justifying torture and extraordinary detentions and renditions.
But in cases such a Medellín v. Texas, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, the Bush-era Court rejected the most extreme claims. Conservatives on the Court did not entirely dismiss arguments for a very robust executive. But their response displayed some nuance – neither a wholesale rejection of strong executive power, nor a complete endorsement of the administration’s audacity. Alito refused to join portions of Thomas’ dissent in Hamdan, for instance, that called for strong deference to the President’s judgments and for the courts to defer to the executive in interpreting the Geneva Conventions. Thomas’ opinions show some willingness to entertain elements of the extreme position (as is also true of his opinions in the 2020 term), but even under a Republican president, many of the Court’s conservatives hesitated to embrace the administration’s position.
Executive Power Under Democrats
It is not only under Republican presidents that the executive branch has sought to extend its influence. As is well documented in then-Professor Kagan’s famous 2001 article on “presidential administration,” the Clinton administration worked to control the regulatory activity of executive agencies, making agency action into a manifestation of Clinton’s own policy and political agendas. Kagan made the case that this promoted accountability and effectiveness, her argument echoing, even if it did not perfectly mirror, the functionalist justifications that legal thinkers on the right put forward for the unitary executive. Both agreed that it is only by keeping the administrative state accountable to a president disciplined by looming elections that it can remain justified within a true democracy.
The Obama administration became notorious for executive unilateralism after the Democrats lost control of Congress in the 2010 midterms. To a large degree, the expansion of executive power can be seen as a practical adaptation to an intransigent Congress. But there are also deeper ideological roots grounded in belief in the benefits of removing expertise and rational decision making from the political hurly-burly. Institutions such as the Office of Information and Regulatory Affairs (OIRA) play a key role in democratic administrations, and the story of an executive power creed as a way to ensconce technocracy might help explain how and why the executive has expanded under democratic presidents. The theory of armed humanitarianism – promoted in the 1990s by people like Samantha Power and advanced by the Clinton Administration in the run up to and aftermath of Somalia – might also account for some of the executive power creep under both Clinton and Obama.
At the Supreme Court, the Clinton administration’s more ambitious claims of extraordinary executive power met with sharp rebuff. In addition to striking down the line item veto in Clinton v. City of New York, the Court took a limited view of presidential immunity in Clinton v. Jones, rejecting the idea that a president was shielded from civil litigation while in office.
Although Obama embraced executive action, he rarely went so far as to assert inherent executive power under the Constitution. Instead, he pursued a strategy of “aggressive compliance,” pushing the language of a statute as far as it can go, avoiding direct constitutional claims, and refraining from assertions that Congress lacks authority. As a consequence, Obama avoided high-profile Supreme Court confrontations over the fundamental limits to his executive power. Most of the marquee cases challenging Obama’s actions were in fact statutory arguments, sidestepping the constitutional issues that might have been implicated.
It was under the Obama administration in 2010, that an important precursor to this year’s Seila Law was decided: Free Enterprise Fund v. Public Company Accounting Oversight Board. A five justice conservative majority ruled in the case that a dual for-cause removal protection for members of the Public Company Accounting Oversight Board was illegal – a ruling that checked agency independence without entirely unwinding the exceptions woven into the twentieth century canon of precedent.
Trump and Barr’s Efforts to Elevate the Presidency Over Other Branches
So as Trump entered office, the Court had shown certain long-term tendencies that had started to reveal themselves since the Nixon administration. Majorities had been increasingly willing to embrace and extend a model of executive power in which the president retains a high degree of internal control, with strict limits to Congress’ power to check presidential discretion inside the executive branch. But at the same time, the Court has been generally reluctant to massively inflate the size and scope of executive power, or to grant absolute immunity.
President Trump brought his absolutist sensibilities to the administration. He had the sense that, as president, he should be allowed to do whatever he wanted, with no fear of consequences and no checks to his will from other branches.
In Barr, Trump has found an ally. The Attorney General and his fellow ideologues are committed to a vision of the American regime in which the president not only exercises complete control over the executive branch, but also stands elevated above the other branches of government, more powerful than Congress and the courts and shielded from oversight. Trump’s Solicitor General Noel Francisco (who stepped down on July 3) has also been a fellow traveler, a long-term member of the conservative legal movement like Barr, and similarly willing to invest in the project of pushing the traditional bounds of presidential power during the Trump administration. Both Barr and Francisco also subscribe to a strand of Catholicism that has come to dominate much of the conservative legal movement.
Trump’s non-ideological instincts have, thus, been yoked to a movement with decades of history. Barr’s November 2019 speech to the Federalist Society gave chilling testament to his continued commitment to his fringe vision, and to his determination to actualize it under the Trump administration.
The Effects of the Appointments of Justices Gorsuch and Kavanaugh
Two Supreme Court seats opened after Obama left office, and both presented potential opportunities to seed the institution with agents who would be willing to perpetuate the administration’s radical vision. When Neil Gorsuch was being vetted, commentators emphasized the need to investigate his work as Principal Deputy to the Associate Attorney General under the Bush administration. A trove of emails released during his confirmation hearings showed him advancing the Bush administration’s controversial efforts to expand executive power during the war on terror. Trump and his allies may have believed, or at least hoped, that Gorsuch would bring this executive-friendly attitude to the Supreme Court bench.
But in spite of evidence that Gorsuch was willing to work to widen presidential powers during his time in the Justice Department, he had also expressed reservations about overreach by executive agencies and, more broadly, a strong commitment to the separation of powers (a philosophy he would articulate with greater coherence after his confirmation in his book A Republic, If You Can Keep It). Some expressed skepticism about the quality of Gorsuch’s commitment to a healthy understanding separation of powers doctrine, but the nature of his likely contribution to the Court’s executive powers jurisprudence was far from certain.
As Brett Kavanaugh underwent consideration before Congress in September 2018, the Mueller probe seemed to be circling ever closer to the President (Paul Manafort’s guilty plea and agreement to cooperate may have seemed especially menacing, and Roger Stone’s associates were parading before a DC grand jury). Democratic senators worried that Trump had appointed Kavanaugh for self-protection, with Chris Coons tweeting that Trump may have nominated Kavanaugh with “an eye towards protecting himself” and Mazie Hirono (D-HI) arguing that Trump’s choice showed how he was “committed to self-preservation every minute, every hour, every day.”
Some legal commentators looked askance at Kavanaugh’s record on presidential power. While he had been a staunch critic of executive overreach as a member of Kenn Starr’s prosecution team in the Clinton years, his views shifted during his time working for the Bush White House. Many were worried by his criticism of United States v. Nixon, suggesting that the case have been “wrongly decided” when it held that a president could be subject to a criminal subpoena for information by a special prosecutor, as in Kavanaugh’s view, a president should not have to answer to subordinate members of his own branch, even to lawyers in the special counsel’s office. A 2009 article also raised eyebrows, in which Kavanaugh suggested the president should not be subject to suit or criminal prosecution while in office. This was in the form of a recommendation that Congress should pass a law, however, not a claim about an inherent constitutional mandate. Kavanaugh’s record left skeptics of expansive executive authority and immunity worried, but without any sense of certainty.
Both Gorsuch and Kavanaugh entered office as fierce critics of the administrative state – especially of independent agencies shielded from strict control by the president. But on the issue of the extent of presidential power, the boundaries of the respective territories of the different branches and their relative power, and the issue of presidential immunity, their positions were far less obvious.
The Rejection of Trump’s Absolutist Vision of Presidential Power
During the current term, Trump’s personal lawyers put forward an absolutist vision of presidential power, especially of presidential immunity, abetted to an only slightly more limited extent by the Solicitor General’s office under Noel Francisco.
In the subpoena cases, the Court rejected the absolute immunity claim completely. Chief Justice Roberts, in his majority opinion in Vance, took care to highlight the fact that nine justices unanimously disclaimed the idea of absolute immunity, whether under Article II or the Supremacy Clause. Even Thomas, the justice most willing to grant deference to the executive in immunity cases, took care to shoot down founding era Senator Philip Schuyler’s claim that “the President is a kind of sacred person.”
The Court may have kicked the can down the road in terms of the immediate political battle surrounding the release of Trump’s financial records. But the opinions reveal a high degree of concern when it comes to preserving a separation of powers jurisprudence that rejects a “sacralized” or monarchic understanding of presidential power. At the same time, Roberts went out of his way to reject congressional supremacy. His opinion was clearly designed to preserve the give and take between branches, leaving none supreme.
Instead of radically shifting the constitutional understanding of presidential power, Trump’s appointees united with the Chief Justice and the Court’s four more liberal members. They joined the majority opinion in Mazars, and Kavanaugh wrote a concurrence joined by Gorsuch in Vance. While Kavanaugh called for a slightly stricter standard (rooted in United States v. Nixon’s requirement that a prosecutor demonstrate a specific need for the subpoenaed materials), across the two cases, there was little distance between Trump-appointed justices, and Roberts and the liberals.
Seila Law also represented a stepwise advance of the Court’s evolving jurisprudence on the administrative state, rather than a radical departure. Back in 2010, in Free Enterprise Fund v. Public Company Accounting Oversight Board, a five justice conservative majority (with Scalia and Kennedy, instead of Gorsuch and Kavanaugh), had ruled to restrict limits to a president’s removal power, without throwing away all the limits to this authority that previous Courts had recognized throughout the twentieth century. Some commentators worried that the Court might even take the opportunity to rule the entire Consumer Financial Protection Bureau unconstitutional. But instead, the new conservative majority followed in the footsteps of the ruling ten years ago.
This is a court with a clear commitment to the version of the unitary executive in which the president exercises a high degree of control within the executive’s traditional territory. Moreover, the majority is skeptical of an independent administrative state. The liberals joined an opinion by Kagan (who, in her own way, is no enemy of executive involvement in agency process), disputing the idea that restrictions on the firing power were extraordinary or beyond the design of the framers. Again, this separation of powers ruling was no extreme jurisprudential leap, merely another skirmish in a decades long exchange.
As in the census case last year, Department of Commerce v. New York, a majority in DHS v. Regents of the University of California was willing to reject the president’s power to act unilaterally with regard to DACA, without respect for process. In this area, Gorsuch and Kavanaugh did join Alito and Thomas in questioning Robert’s procedural qualms. But the Court as a whole was ready to restrain the excesses of presidential discretion.
In the End: Robust Rather than Absolute Presidential Powers
This term, Trump asked the Court to reinvent separation of powers law, demoting Congress from its status as a coequal branch and diminishing the powers of states under our system of federalism – to translate Trump’s instincts and Barr’s ideology into settled constitutional law.
The Court slapped aside these radical claims. Even with two Trump appointees on the bench, the lines of discussion, debate, and consensus remained relatively consistent. The opinions represent an extension of a jurisprudential framework in which the president can claim robust, though by no means absolute, control within the executive branch. Crucially, the extent of executive authority, discretion, and immunity is still subject to limits, and dialogue with Congress, the courts, and the states remains vital.
Image: U.S. President Donald Trump makes a statement on the census with Attorney General William Barr in the Rose Garden of the White House on July 11, 2019 in Washington, DC. President Trump, who had previously pushed to add a citizenship question to the 2020 census, announced that he would direct the Commerce Department to collect that data in other ways. (Photo by Alex Wong/Getty Images)