Does the law require a unitary executive? The answer, according to experts at an event at Harvard Law School on Wednesday, is simple. Sort of.
“The first short and easy answer is, yes, it does,” said Susan Davies, the former head of the Office of Legal Policy at the U.S. Department of Justice.
It’s the extent of that power that is the real question, said Davies, who moderated this week’s Rappaport Forum, a Harvard Law series dedicated to promoting and modeling rigorous, open, and respectful discussion of vital issues facing the world.
For nearly an hour, Aditya Bamzai, a professor at the University of Virginia School of Law debated Peter Shane, a professor at New York University School of Law, on the question of how much authority the American president has over the more than 400 agencies and subagencies that comprise the federal bureaucracy.
Since assuming office in January, President Donald Trump has adhered to what some scholars have called a “muscular version” of the president’s authority over the administrative state, taking controversial actions such as firing leadership and lower-level employees across agencies, freezing congressionally allocated funding for programs, and even considering closing the Department of Education.
Davies set the scene by describing how Article II of the Constitution grants the president — notably, a single individual, not a committee or group, she said — authority over the executive branch, which includes agencies such as the Department of Health and Human Services, the Department of Justice, and the Environmental Protection Agency. But these agencies were created and are funded by Congress. So, where does the chief executive’s reach over the administrative state end — if it does so at all?
Bamzai suggested we look to the nation’s history for guidance. “The idea of a single executive put forth in the Virginia Plan won out at the [Constitutional] Convention and made its way into our Constitution, so at least nominally, in its form, there is a single executive atop the executive branch at the federal level,” he said.
The country’s founders also meant for there to be single executive in substance, he argued. To explore why he believes that to be so, Bamzai proposed a hypothetical. “Imagine that our current Congress were to cleave off a portion of the executive branch, for example, let’s just pick the State Department, and render its head not answerable to the president,” he said. “Would that be constitutional?”
Probably not, given Supreme Court precedent, Bamzai said. “That answer suggests, then, that there are some implied limits on how Congress might structure executive agencies at the federal level.”
Bamzai said that the issue is whether the first clause of Article II — which vests executive power in the president — confers additional powers, such as that of removal, to the chief executive beyond the authority specifically given to the president in the second section of the article.
The debate over this question has raged since the country’s founding, he continued. “Literally everyone who had an opinion on law seems to have had an opinion on the president’s authority to control the executive branch.”
In fact, he said, the very first debate in Congress over the meaning of the Constitution was about who controls the executive branch and how, he said. The fight was over a draft bill that contained language granting the president authority to remove the heads of several departments, he continued, and that prompted a dispute over where the Constitution lodges the power to remove, if it does so at all.
Those who believed the Constitution confers removal power to the president ultimately prevailed, he said. “Scholars continue to debate the import of this early debate, called the ‘Decision of 1789,’” he said, “but one aspect of it is undeniable, and that’s that it was a close debate.”
The question arose again during the presidencies of Thomas Jefferson, Andrew Jackson, and Andrew Johnson, Bamzai said. During the Civil War era, Congress also began to create federal agencies whose members were subject to removal only for cause, such as malfeasance or neglect of duty. Taken together, what does this all mean?
“I tend to say that the better interpretation of the Constitution acknowledges a presidential authority to remove that Congress cannot take away by statute, that this was the best interpretation of the text in early debates, and it was the prevailing practice until about the Civil War,” Bamzai said.
But Bamzai argued that even after Congress instituted some of these “for cause” restrictions, that move “cannot be understood to displace the traditional perspective on allocation of the removal power.”
Bamzai said that he recognized that some believe that the fact that early Americans debated this question precludes the idea there could be a settled meaning on the issue. But he said he didn’t buy that argument.
“I’m disinclined to take that general jurisprudential view, because I believe certain statutes, such as, for instance, some parts of the statutes known as the Alien and Sedition Acts, were unconstitutional even though they received majority support in the 18th century,” he said. “Thus, I would say the mere fact that an issue was disputed does not necessarily mean that the Constitution lacks meaning on a particular question.”
For Bamzai, there are also practical implications to a position that provides for broader presidential removal power. Keeping unwanted officials in their roles requires continuous oversight, he noted. “The actual implementation of removal restrictions will require constant supervision of the second branch [the executive branch] by the third branch of government [the judiciary].”
‘They’re acting on behalf of Congress’
Shane said that there was much in Bamzai’s remarks with which he agreed.
“You’re probably all under the impression that United States is divided in between polarized parties, Republicans and Democrats. No, it’s divided between people who are fascinated by the Appointments Clause and people who are not. And Aditya and I are members of the former party,” he joked.
Nonetheless, Shane took issue with the “supposedly historically based strong view of the unitary executive.”
The first problem, he said, is the sheer size and scope of the nation, its economy, and its domestic and global functions in the modern era.
“The idea that our binding guide to the president’s relationship to that administrative state in 2025 should be what people envisioned George Washington’s relationship would be to a federal government probably smaller than the smallest cabinet department today,” he said, strikes some people as “nuts.”
Remarkably, Shane noted, the number of civil servants today likely equals the entire population of the U.S. in 1787. The country’s bureaucracy is much different than at the founding, he suggested. “It’s not that they wouldn’t be concerned about the same things — there would be questions of values, things that they would want to achieve, that we would care about. But in a highly particularistic way, it just seems odd.”
Shane then turned to the text of the Constitution itself, which in his view does not actually favor the strong version of the unitary presidency theory. The idea that not just some, but all, executive power is vested in the president is only “plausible if you stop reading the Constitution after the first sentence of Article II,” he said.
In fact, he continued, later sections go on to divide some executive authority between the president and the Senate, such as treaty-making power. “At most, the first sentence could mean the president is vested with all of the executive power not vested elsewhere — to be vested explicitly, to be vested implicitly, to be shared. But it can’t mean ‘all,’ once you get past the first paragraph.”
Moreover, Shane said, Congress created the agencies and assigned them duties. “The Trump administration is fond of saying … that these agencies are acting on behalf of the president. They are not. They’re acting on behalf of Congress. The president’s duty is to ‘take care that the laws be faithfully executed’ — not to execute them, but to make sure that those who execute them are doing it faithfully.”
Shane also thought that originalists who embrace the strong unitary executive theory are misinterpreting history. “I don’t believe that the folks who ratified the Constitution had been given the impression that there’s a consensus that vesting the executive power in the president would give the president any sort of comprehensive removal power, much less this stronger version of the unitary executive.”
Finally, he argued, “the unitary executive idea is susceptible to metastasize.” Even if the president has the power to remove, it doesn’t follow that he or she would also have the power to redesign agencies or impound funds appropriated by Congress, Shane continued. The authority to remove officials in the hands of someone without the knowledge of that legal nuance could facilitate the “move from ‘I can fire everybody’ to ‘I can tell everyone what to do.’”
If the President is a one-person branch of government, he argued, then any administrator’s authority becomes as dependent on the president’s willingness to let them do their job as it is on Congress’s grant of statutory authority. Shane argued that would turn the separation of powers on its head.
But Bamzai suggested Shane’s final point was akin to a slippery slope argument, not unlike the one he could make for the other side, wherein a weak chief executive could be completely walled off from control of any or all agencies.
Davies, the moderator, wondered if the framers viewed the removal of superior officers in the same way as the firing of lower employees. Is there some type of middle ground between complete control by the president and none at all?
Bamzai responded that this, too, had been the subject of rich debate at the nation’s founding. “Taking my own perspective,” he continued, “I think that there’s at least a principled reason by which you could distinguish between the two [kinds of removals].”
Ultimately, in Shane’s view, some of those who advocate for the strong unitary president theory have a practical goal hiding behind theory. “I think a lot of the political push behind the theory came from folks who realized that, without a stronger constitutional presidency, electing a president who wanted to reduce the bureaucracy was not going to be able to produce that result.”
The Rappaport Forum began in 2020, through to the support of Jerome “Jerry” Rappaport ’49 M.P.A. ’63 and his wife Phyllis. The series and its dedication to constructive dialogue on important topics mirror the Harvard Law School Forum, a storied speaker series that Rappaport helped launch as a student in 1946.
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