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Unitary Executive Theory and Its Implications in Modern Governance

The discourse surrounding unitary executive theory has seen a resurgence, particularly regarding the extent of presidential authority over independent agencies. Weaker interpretations of this theory maintain that while the president wields significant power in core constitutional duties—such as military oversight—he must respect Congress’s authority to configure independent agencies with mechanisms that grant their officials protections from removal. This perspective accepts the precedent established by Humphrey’s Executor v. United States (1935) as definitive law. In this landmark case, William Humphrey was dismissed from his role as a commissioner of the Federal Trade Commission (FTC) under President Franklin Roosevelt due to policy disagreements, leading to a legal battle that the Supreme Court ultimately resolved in Congress’s favor. The ruling affirmed that Congress could create quasi-legislative entities like the FTC and impose limits on the president’s power to dismiss their members.

A significant case that illustrates the evolution of this conflict is Morrison v. Olson from 1988. The Supreme Court upheld the provision regarding independent counsels as stipulated in the Ethics in Government Act. These independent counsels, once appointed, had virtually unlimited funding and autonomy to determine the duration of their investigations. Though the ruling was decided with a 7-1 majority, Justice Antonin Scalia’s dissent stands out for its foresight. He articulated caution regarding the potential risks to the balance of power, asserting, “Frequently an issue of this sort will come before the Court clad… in sheep’s clothing… But this wolf comes as a wolf.” Despite being in the minority during the case, Scalia’s position gained traction over time, especially when many Democrats revisited his dissent in the wake of disillusionment with Kenneth Starr’s investigation into Whitewater. By 1999, a bipartisan congressional majority decided against reauthorizing the independent counsel provision, reflecting a shared concern rooted in Scalia’s arguments that aligned with unitary executive theory.

In recent years, the topic has resurfaced prominently, particularly following Donald Trump’s return to the presidency. His administration has shown a clear preference for a more expansive interpretation of presidential power, which raises the possibility that the Supreme Court may soon need to reconsider the implications of Humphrey’s Executor and confront its compatibility with constitutional principles, especially within the realm of education.

The relevance of unitary executive theory extends to the Institute for Education Sciences (IES) and its associated centers, which are intended to operate with a level of autonomy from both the U.S. Department of Education and the political influence of the presidency. The IES director, who serves a six-year term designed to span different presidential administrations, requires oversight by a board appointed by the president and can be removed only for just cause. The National Center for Education Statistics (NCES) follows a similar model, with its own six-year term director. Moreover, the National Assessment of Educational Progress, recognized as the Nation’s Report Card, is governed by the National Assessment Governing Board (NAGB), which is also appointed by the education secretary and aims to maintain a nonpartisan perspective over multiple administrations.

However, the Trump administration has already enacted measures that challenge the autonomy of IES, NCES, and NAGB. This includes the cancellation of hundreds of millions of dollars in IES contracts, notably affecting the upcoming Long-Term Trend NAEP assessment for 17-year-olds. Furthermore, Peggy Carr, who was appointed director of NCES in 2021 for a six-year term, was placed on administrative leave, with administration officials indicating this action was a result of her appointment during President Biden’s term. This move has been perceived as a clear indication of the administration’s willingness to exert influence over independent educational agencies.

Given the relative obscurity of these agencies compared to others like the Federal Reserve or FTC, they might serve as a litmus test for the administration’s approach to independence. The implications of losing the autonomy of IES, while significant, may not generate the same level of public concern as the potential loss of independence faced by more widely recognized institutions.

Meanwhile, President Trump seems unfazed by the conversations surrounding executive power. His recent statement invoking Napoleon—“He who saves his Country does not violate any Law”—reflects a broader willingness to elevate presidential authority. The historical context of executive power debates is crucial here; Edmund Randolph famously termed Article II the “foetus of monarchy” during discussions at the Virginia ratifying convention. Critics of Trump today would benefit from recognizing similar expansions of executive power seen during the Obama and Biden administrations. True constitutional thinking requires an impartial assessment that transcends immediate political interests. Otherwise, concerns raised may come across as self-serving rather than genuinely principled. A pattern of constitutionalism that is selective according to convenience undermines the very tenets of constitutional governance.

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