Balancing the Scales: A Case for a Strong, but Limited, Unitary Executive

Is the President of the United States a king? The checks and balances between branches in the U.S. government codified by the United States Constitution would certainly say no – but what about checks within the President’s own Executive Branch? The President’s executive authority is derived from the Executive Vesting Clause in Article II of the United States Constitution, which states that “[t]he executive Power shall be vested in a President of the United States of America” [1]. Despite the idea of a unitary executive being around since America’s founding and many cases involving executive power, a strong Unitary Executive Theory, which posits unlimited presidential authority within the executive branch, was not formulated until the early 1990s [2]. But even before a formal Unitary Executive Theory, the strength of the U.S. executive had been a topic of great discussion and debate amongst legal scholars and politicians. While a strong unitary executive is an integral part of the structure of the United States government, it is by no means a claim to absolute power, particularly with respect to independent agencies that perform functions that are not purely executive. Article II of the United States Constitution clearly gives the President broad executive powers, but Congress may impose structural constraints and removal guidelines on the President when creating agencies that consist of more than just executive functions, in order to ensure a balance between the President and independent agencies in the executive that promotes efficiency and accountability.

A strong unitary executive, which gives the President unlimited control over offices that perform solely executive functions is clear from both the United States Constitution and Court precedent, and is furthermore required for the efficient and transparent running of the United States government. In Myers v. United States (1926), the Supreme Court found that a Congressional Act that restricted the President’s power to remove executive branch officials, viz., a postmaster, was unconstitutional [3]. In that case, the argument of the majority rested on the Take Care Clause of the U.S. Constitution which states that the President “shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States” [4]. The majority argued that in order for the President to “take care that the laws be faithfully executed,” the President must be granted the “exclusive power of removal” [5]. A system that grants the President the sole power of removal over executive officials appointed with Senate advice and consent is indeed a mechanism that can ensure accountability within the executive branch. While it is inevitable that personal preferences and politics may push the President to remove officers, this is eclipsed by the beneficial aspects Presidential removal power has on the executive bureaucracy, particularly related to greater transparency and accountability. Justice Elena Kagan supports this position in her book, Presidential Administration when asserting that strong Presidential leadership “establishes an electoral link between the public and the bureaucracy” and concluding that “presidential control … possesses advantages over any alternative control device in advancing [the] democratic values” of transparency and accountability [6]. Indeed, Justice Kagan’s assertions help justify the importance of a strong unitary executive to upholding the values of the United States government and accountability to the people. However, it is important to realize that Kagan’s analysis pertains most directly to the offices that exhibit purely executive functions, such as the Departments of the Cabinet Officers, and is not meant to pertain to offices that perform more than just an executive actions.

Despite the importance of a strong unitary executive, those powers are not unlimited over independent agencies; in these instances, Congress should have the flexibility to determine exactly how much power the President has. One of the clearest instances of the Supreme Court ruling that the President did not have unchecked authority to remove commissioners of independent agencies came in Humphrey’s Executor v. United States (1935). In that case, the Court determined that President Franklin Roosevelt could not fire a Federal Trade Commission (FTC) commissioner on the basis of a policy disagreement [7]. The Court ruled that since the FTC was created by Congress “to carry into effect legislative policies” and “perform other specified duties as a legislative or as a judicial aid,” and therefore could not be “characterized as an arm or an eye of the executive” [8]. In defining the role of the FTC as “quasi-legislative” and “quasi-judicial,” the Court created an important distinction from the earlier Myers decision asserting a difference between those offices that carried out a purely executive function and those that had more broad responsibilities. A distinction like this is important because despite taking power away from the President, it still produces a bureaucracy that is more balanced in power and transparent to the people by allowing for the presence of independent agencies.

Indeed, Peter Strauss affirms this idea in his article discussing the place of independent agencies in the U.S. government, writing that “[e]ach agency is subject to control relationships with some or all of the three constitutionally named branches” and that these checks ensure “that [those agencies] will not pass out of control” [9]. For agencies that execute responsibilities across the three branches of government, it is important to have multiple forms of checks and balances, such as both the President having the power of appointment but Congress having the power of impeachment and removal, leading to a more transparent and accountable bureaucracy despite the weakening of executive power. While it may seem that the positives of weakening Presidential power in regard to independent agencies may seem to discredit the earlier argument in favor of strong Presidential authority, the discussion in the second paragraph concerned itself only with offices that exhibit executive authority, not those that have part legislative and part judicial roles as well. Furthermore, returning to the writing of Justice Kagan, basing her reasoning in Humphrey’s Executor, she argues that “Congress may limit the President’s capacity to direct administrative officials in the exercise of their substantive discretion” [10]. Kagan’s assertion permits the above conclusion that in instances where agencies have more than just an executive responsibility, Congress does indeed have the power and the right to place checks on the President’s power to regulate those independent agencies. Kagan justifies this slight break with her previous position by arguing that the presidency is constrained in its capacity of “technical decisionmaking” [11]. Kagan argues that the President does not have the capability to understand all the nuance of technical and scientific decision making that goes into the operations of independent agencies such as the Federal Energy Regulatory Commission. Independent agencies demonstrate the case where presidential authority under a unitary executive should be limited by Congress.

Overall, a strong unitary executive is important to maintain the transparency and accountability of offices wielding purely executive authority, such as the Department of State. However, when agencies operate on a broader spectrum, executing part legislative and part judicial actions, such as the Federal Trade Commission, it becomes the job of multiple branches of the government to check these agencies. A shared responsibility between multiple branches of the government ensures that one branch does not have overreaching authority over an agency that may dip into another branch’s responsibility, thereby promoting a balanced bureaucracy. Without the President’s power over executive officials, the executive bureaucracy could become even less accountable as it becomes disconnected from elected officials, leading to increased distrust in the American government. However, if the President has too much power and is able to interfere with independent agencies with responsibilities across the three branches of government, this too could lead to a dangerous precedent that undermines the American system of checks and balances, leading to the degradation of American governmental institutions. Therefore, a constitutionally sound unitary executive requires a balance in which presidential control remains strong over purely executive officials, while Congress retains some limited authority to structure independent agencies, as determined by the Supreme Court, in ways that promote expertise, transparency, and functional governance. A format that emphasizes checks and balances between independent agencies and the three branches of the United States government will ensure a more effective and accountable bureaucracy to better serve the people of the United States.

[1] U.S. Const. art. II, § 1, cl. 1.

[2] Stromberg, Joseph R. “The Unitary Executive: Presidential Power from Washington to Bush: News Article.” Independent Institute, n.d. Accessed April 15, 2026. https://www.independent.org/article/2009/11/18/the-unitary-executive-presidential-power-from-washington-to-bush/.

[3] Myers v. United States, 272 U.S. 52 (1926).

[4] U.S. Const. art. II, § 1, cl. 5.

[5] Myers v. United States, 272 U.S. 52 (1926).

[6] Kagan, Elena. "Presidential Administration." Harvard Law Review 114, no. 8 (June 2001): 2245–2383.

[7] Humphrey's Executor v. United States, 295 U.S. 602 (1935).

[8] Ibid.

[9] Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/208.

[10] Kagan, Elena. "Presidential Administration." Harvard Law Review 114, no. 8 (June 2001): 2245–2383.

[11] Ibid.