The Myth of the Unitary Executive: Untethered from the Constitution and Out of Touch with Founding-era History

In March 1788, as vehement debate over the ratification of the Constitution swept across the young American republic, Alexander Hamilton published Federalist No. 70, which laid out his sprawling vision for the executive branch [1]. Hamilton argued that the president must lead the country with “energy,” “vigor,” and “expedition,” while still committing to a “steady administration of the laws” [2]. In other words, the president must — within the limits of the law — make decisions, take action, and assert control over his branch, his government, and his country. In recent decades, however, a new theory that asserts complete presidential authority over the executive branch has disastrously overextended Hamilton’s original vision.

The unitary executive theory (UET), as it is known, is particularly important today because it has been at the forefront of recent legal and political debates around President Donald Trump’s authority to overhaul federal agencies, unilaterally cut federal funding that Congress appropriated, and remove accountability and independence measures within the executive branch. The theory, popularized in the 1980s during the Reagan administration, interprets Article II of the Constitution and founding-era practice as vesting power over all executive branch functions entirely in the president [3].

However, UET runs into one major problem: it is completely untethered from the Constitution and history. More pointedly, supporters of UET stretch ambiguous clauses of the Constitution and distort founding-era history. And while these proponents do point to Hamilton’s call for “energy” in the executive, they neglect the equal, if not more important concern for the steady, consistent administration of law. Therefore, while a fully unitary executive undoubtedly acts with decisiveness, it comes at the great cost of continuity and predictability, undermining the very rule of law that the Constitution was framed to secure.

Despite what its advocates may argue, UET is undoubtedly a modern phenomenon. Today, Americans live in “an era of presidential primacy” defined by a strong, powerful executive [4]. In fact, as a result of 20th century expansions of presidential authority and centralized control over executive decision-making, transfers of power in the White House can often seem more like “regime change” than steady, unassuming transitions between administrations [5]. Indeed, it is widely accepted today by Congress, the courts, and the public that the president has at least some level of broad constitutional authority to wield administrative power and direct the executive branch. However, for almost all of American history, this was not the case: Until recently, it was commonly understood that presidential authority over the so-called administrative state was derived only from congressional statutes, so if a particular administrative action or directive was not rooted in the text of a specific statute, a court could strike the president’s action down [6]. It was not until President Ronald Reagan came to power in January 1981 with bold plans to deregulate the administrative state (even if it meant ignoring congressional directives) that presidents began asserting greater authority to unilaterally control the executive branch [7]. And although UET began as a fixture of conservative jurisprudence, since Reagan, presidents of both political parties have used the theory to assert broad authority over the executive branch. Even so, UET still lacks constitutional viability.

UET rests on a strained interpretation of Article II’s framework for the executive branch, as seen through three key clauses: the Vesting Clause, the Take Care Clause, and the Appointments Clause. But first, as a brief yet important preface, it should be mentioned that the method of constitutional interpretation used in this article is mostly originalist, meaning it looks at the text as it was understood at the time it was written — which, for all three of the Article II clauses, was 1787. That being said, there surely are times in the article in which a more pragmatic, consequentialist lens is employed. Even so, no jurist — and indeed, no Supreme Court justice — falls perfectly into one ideology of constitutional interpretation, and, as such, such moments of pragmatic thinking in an otherwise originalist article should not be too much of a nuisance.

With that prefaced, let’s look at the Vesting Clause. More than any other clause in the Constitution, proponents of UET point to the Vesting Clause, which states that “the executive power shall be vested in a President of the United States of America,” for proof that every possible executive power is fully vested in the president, not other executive branch officials [8]. This reading of the Vesting Clause defines the term “executive Power” too broadly. Sure, executive powers that are expressly granted to the president in Article II — such as being the commander-in-chief — are vested fully in the president, but what about administrative and regulatory powers that are derived from congressional statutes? Proponents of UET often argue that, unlike Article I’s Vesting Clause, which says that all legislative powers “herein granted shall be vested [emphasis added]” in Congress, Article II’s Vesting Clause simply says executive power “shall be vested” [9]. By intentionally omitting “herein granted” from Article II’s Vesting Clause, proponents of UET argue, the Framers of the Constitution must have granted the President broad unenumerated powers [10]. But, following this Framers-intent reasoning, if the Framers wanted to vest all executive power, both enumerated and unenumerated, in the president, why didn’t they just add the word “all” in front of “executive Power” to be clear? Indeed, the Vesting Clause is quite ambiguous, and it is thus quite a stretch to conclude that the Vesting Clause grants the president full authority over all unenumerated executive powers, many of which the Framers could not have ever anticipated. For instance, it was not until the early 20th century that the civil service and administrative state began to take their modern shape. In order to resolve conflicts arising from ambiguous constitutional language such as Article II’s Vesting Clause, courts should use the principle of Occam’s Razor, which states that, when faced with two competing ideas, the one with the simplest explanation is usually correct. And so, in this framework, the disagreement over whether “executive Power” includes all unenumerated executive powers, many of which did not even exist until hundreds of years after the drafting of the Vesting Clause, can be resolved by the fact that a restrained approach to reading the clause rests on far fewer assumptions, and so avoids unduly granting dangerous, unspecified, and unconsidered powers to a single figure.

The Take Care Clause is also wrongly cited to support UET. The clause, stating that the president “shall take Care that the Laws be faithfully executed,” is construed to suggest that, as long as the president acts in good faith, he can use any and all executive powers at will [11]. To a certain extent, this makes sense. Its logic does follow that of Chief Justice John Marshall in the landmark case McCulloch v. Maryland (1819), in which he concluded that, “if the end be legitimate, and within the scope of the Constitution,” then the government may employ, “all the means which are appropriate,” which does grant some level of discretion in how laws are carried out (the “means,” by Marshall’s reasoning) [12]. And while Chief Justice Marshall was interpreting the Necessary and Proper Clause in that case, a similar logic could reasonably be employed to interpreting the Take Care Clause. Even so, the Take Care Clause does not say that the president should take care that he faithfully executes the laws, only that he takes care that whoever executes the laws does so faithfully. This is important because, almost always, the president is not the one actually executing the laws (he’s not paving roads, auditing taxes, distributing healthcare, etc.). And thus, the most “faithful” way for the president to take care of the law is by allowing the independent executive agency to have independence. So while the Take Care Clause may imply some level of presidential control over independent executive agencies to ensure faithfulness, it does not grant complete control. Because of this, it makes complete sense why the president would have the power to remove an independent executive official for cause, but would not have the same power just because he disagrees with their politics. And so, in this close reading of the text, the Take Care Clause actually does not support UET.

Lastly, proponents of UET point to Article II’s Appointments Clause, which gives the president the power to appoint ambassadors, ministers, consuls, judges, and “all other Officers of the United States” with the “Advice and Consent” of the Senate [13]. Proponents of UET use the Appointments Clause to claim that the president has the unilateral power to fire anyone within the executive branch — nevermind that the clause focuses on appointment, not removal. For officials appointed to independent executive agencies, this makes no sense — where is the independence in being fired at the president’s will? Although the president undoubtedly has authority to exercise some removal authority, the Appointments Clause’s silence on the matter leaves room for Congress to restrict that power. In other words, legislation that establishes independent executive agencies is constitutional because nowhere in the Constitution does it specifically give the president the power to remove executive officials. Of course, there are some cases in which the authority to remove is directly linked to an enumerated executive power, such as removing the Secretary of Defense under the Commander-in-Chief’s powers. In cases like this, Congress may have less authority, but in general this is the exception, not the rule.

Even if some proponents of UET concede that Article II does not explicitly support a unitary executive, nonetheless, they might rebut, the Framers wanted to craft an energetic executive with full authority over his branch. To prove this, they point to Framers such as Hamilton and often specifically Federalist No. 70. For example, in Collins v. Yellen (2021) (“Yellen”), which allowed the President to remove the director of the Federal Housing Finance Agency without cause, Justice Neil Gorsuch cited Federalist No. 70 in his concurring opinion [14]. Justice Gorsuch, using excerpts of Federalist No. 70, wrote that “the point of ensuring presidential supervision of the Executive Branch is to ensure ‘a due dependence on the people’ and ‘a due responsibility’ to them; these are key ‘ingredients which constitute safety in the republican sense’” [15]. But this historical argument is not sound because it is selective: It emphasizes the Framers such as Hamilton who favored a strong executive while ignoring the many other Framers who had concerns with a unitary executive — from Madison, who had a countervailing concern for the executive’s steady administration of the law, to Edmund Randolph, who pushed for a three-person executive to prevent a unitary president from having too much executive power. And, sure, in the end Randolph didn’t end up getting his executive committee, but let’s remember that Hamilton did not get everything he wanted either — at the Constitutional Convention, he had pushed hard for life-long executive appointments. Indeed, the Constitution was not written by one person, and as a result it is wrong to only point to one (albeit influential) Framer’s opinion in favor of an energetic executive as proof that the Constitution was drafted with an underlying agreement that there should be a unitary executive. This originalist argument lies on the false foundation that there was ever a single common understanding of the Constitution.

Ultimately, then, UET both lacks grounding in Article II and relies on a too selective history of the framing of the Constitution. Despite this, the Roberts Court seems poised to continue forcing the contemporary judicial landscape into a unitary executive framework. In Seila Law LLC v. Consumer Financial Protection Bureau (2020), Chief Justice Roberts, on behalf of the conservative majority, ruled that the director of the Consumer Financial Protection Bureau could be removed by the president without cause [16]. A year later, in Yellen, the conservative majority extended this ruling to the director of the Federal Housing Finance Agency [17]. And now, in the Supreme Court’s current term, the conservative majority could extend this precedent to the Federal Trade Commission commissioner, who President Trump fired without cause, or even to Lisa Cook, a member of the Federal Reserve Board of Governors fired by President Trump [18]. Until these two cases are ruled on in 2026, it remains to be seen how far the conservative majority will go to advance UET. But what is known is that UET, if left unchallenged, risks transforming the Constitution’s carefully balanced system of separated powers into one of concentrated and unaccountable authority.

References:

[1] Alexander Hamilton, “The Federalist Papers, No. 70,” New York Packet, March 18, 1788, https://avalon.law.yale.edu/18th_century/fed70.asp. [2] Ibid. [3] Ashraf Ahmed et al., “The Making of Presidential Administration,” Harvard Law Review 137, no. 8 (2024), accessed October 20, 2025, https://harvardlawreview.org/print/vol-137/the-making-of-presidential-administration/.
[4] Ibid. [5] Cristina M. Rodríguez, “Foreword: Regime Change,” Harvard Law Review 135, no. 1 (2021): 7, accessed October 20, 2025, https://harvardlawreview.org/wp-content/uploads/2021/11/135-Harv.-L.-Rev.-1.pdf.
[6] Ahmed et al., “The Making,” [7] Ibid. [8] U.S. Const. art. II, § 1, cl. 1. [9] Yuval Levin, American Covenant: How the Constitution Unified Our Nation ― and Could Again (Basic Books, 2024), 169. [10] Ibid. [11] U.S. Const. art. II, § 3. [12] McCulloch v. Maryland, 17 U.S. 316 (1819). [13] U.S. Const. art. II, § 2, cl. 2. [14] Collins v. Yellen, 594 U.S. ___ (2021). [15] Ibid. [16] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020). [17] Collins v. Yellen, 594 U.S. ___ (2021). [18] Amy Howe, "Supreme Court declines to take action on Trump's request to fire Fed governor for now," SCOTUSblog, October 1, 2025, accessed October 26, 2025, https://www.scotusblog.com/2025/10/supreme-court-declines-to-take-action-on-trumps-request-to-fire-fed-governor-for-now/.