Resisting the Unitary Executive: A Formalist Critique of Presidential Removal Power

Even though over 200 years have passed, the question of the extent of executive power under the Constitution remains as relevant as it was upon the nation’s founding. In an unprecedented modern turn, President Trump has mounted an aggressive campaign targeting the civil service, bringing renewed urgency to the debate over Unitary Executive Theory (UET), the idea that the President has complete control over the executive branch. Many formalist proponents of UET argue that this power is derived from Article II of the Constitution, particularly the Vesting Clause and Take Care Clause. They further maintain that the executive branch should operate in an organizational structure with the President at the top and clear lines of authority downward, such that subordinates can be fully removable and easily controllable. In reality, however, the executive branch comprises over 400 agencies and 2.2 million employees, and was deliberately constrained by the Framers under a system of separated powers that continues to be upheld by the Supreme Court [1]. Consequently, the notion that UET permits the President to have a blanket removal power, understood as the authority to dismiss subordinate executive officials without limitation, is constitutionally unsound because it would concentrate executive power in a manner that undermines the Constitution’s very separation of powers. In contrast, the Constitution’s structure and Supreme Court precedent support a model of checks and balances, in which executive authority under the President is limited by interbranch accountability. Rather than requiring a strict hierarchy with the President at the top, the Constitution preserves balance by distributing authority over regulatory agencies across the branches and preventing unchecked presidential control.

The Constitution’s structure, particularly its system of separated powers, ensures that executive removal power is constrained by other branches of government and subject to interbranch checks. Specifically, Congress is granted significant authority to create offices, define duties, and structure the executive branch through the Appointments Clause, which necessarily limits the President’s ability to exercise total control over all executive actors [2]. The inclusion of the Appointments Clause underscores the Framers’ intention of an executive that does not align with the more recent vision held under UET. The President cannot appoint a high-level member of his cabinet, independent agencies, the judiciary, or other crucial federal leadership positions without Congressional approval. Thus, the legislative branch actively constrains and checks presidential control over the executive. The Supreme Court has upheld the necessity for this separation of power, as in Morrison v. Olson (1988), a case where the Court held that Congress did not violate Article III of the Constitution when it created a special court and empowered the Attorney General to recommend the appointment of an “independent counsel” to investigate government officials [3]. Chief Justice Rehnquist wrote for the majority that the Court had “never held that the Constitution requires that the three branches of Government operate with absolute independence,” supporting the idea that Congress and the Courts can structure certain executive offices without Presidential approval [4].

In the span of the Supreme Court’s jurisprudence, precedent consistently affirms that the President’s control over the executive is limited by constitutional checks and balances, which undermines the formalist interpretations that support removal power under UET. In Humphrey’s Executor v. United States (1935), for example, the Court upheld limits on the president’s removal power, affirming not only the constitutionality of independent agencies to operate free from direct presidential control, but also the judicial branch’s ability to limit presidential removal power as a check on executive overreach [5]. Humphrey’s Executor has remained the precedent in cases involving the presidential removal of members of independent agencies, albeit weakened by later decisions like Seila Law LLC v. Consumer Financial Protection Bureau (2020) [6]. The continued reliance on Humphrey’s Executor for nearly a century reflects both its doctrinal coherence and its role in enabling the modern administrative state to function.

Still, many pro-unitary formalists argue that the Take Care Clause of Article II justifies a centralized federal authority, in order that the President may be able to execute the law by whatever means in all situations [7]. However, this reasoning overstates the reach of the Take Care Clause, as broad executive powers, such as unrestricted removal authority, cannot be inferred solely from its text. In Youngstown Sheet & Tube Co. v. Sawyer (1952), for example, the Court rejected the President’s attempt to seize steel mills during the Korean War, holding that executive action must rest on statutory or constitutional authority rather than perceived necessity or urgency [8]. Thus, Youngstown Sheet & Tube reinforces that the Constitution imposes meaningful limits on executive power and that Congress has the right to check those limits. The Take Care Clause, then, does not justify unrestricted removal power, but rather must be understood to operate within a constitutional framework that subjects the President to restrictions imposed by the other branches.

Both the Constitution and Supreme Court precedent consistently demonstrate that executive authority is subject to checks by the other branches, rather than fully centralized under the President. Cases such as Humphrey’s Executor, Morrison, and Youngstown Sheet & Tube affirm that the President’s power over the executive is limited by the separation of powers and contingent on statutory or constitutional authorization. While proponents of UET under a formalist approach emphasize the Vesting Clause and Take Care Clause, these arguments overextend the Constitution and ignore its safeguards embedded through checks and balances. The lasting existence of independent agencies and constrained executive authority confirms that the framers envisioned a system where power is intentionally divided among the branches to prevent the accumulation of unchecked authority. Allowing a fully unitary executive would dismantle the balance of government envisioned by the Constitution, endangering the careful architecture of checks and balances and the rule of law itself.

As contemporary challenges to the civil service intensify, the destruction of limits to executive power could very well become a reality. The future of administrative governance may not solely depend on the question of a unitary executive, but on whether the essential structural safeguards of the Constitution can endure.

Bibliography

[1] “How Many Civilian Jobs Are in the US Federal Government? | USAFacts.” 2025. USAFacts. 2025. https://usafacts.org/answers/how-many-civilian-jobs-are-in-the-us-federal-government/country/united-states/. U.S. Const. amend. X, § 1.

[2] U.S. Const. art. II, § 2, cl. 2.

[3] Morrison v. Olson, 487 U.S. 654 (1988). https://supreme.justia.com/cases/federal/us/487/654/.

[4] Chemerinsky, Erwin. “Morrison v. Olson and the Triumph of the Unitary Executive Theory.” SCOTUSblog. December 3, 2025. https://www.scotusblog.com/2025/12/morrison-v-olson-and-the-triumph-of-the-unitary-executive-theory/.

[5] Humphrey’s Executor v. United States, 295 U.S. 602 (1935). https://supreme.justia.com/cases/federal/us/295/602/.

[6] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ___ (2020). https://supreme.justia.com/cases/federal/us/591/19-7/#tab-opinion-4267245.

[7] U.S. Const. art. II, § 3.

[8] Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579 (1952). https://supreme.justia.com/cases/federal/us/343/579/.