By Robert Reich
Trump allies have threatened that if he regains the presidency, he will invoke the “unitary executive” theory as the basis for using the Justice Department to persecute his political enemies, take over the FBI, usurp the authority of independent agencies like the FTC and even the Federal Reserve, and substitute loyalists for independent civil servants.
The “unitary executive” theory posits that the Constitution gives the president authority to control all executive action under Article II, whose first line states that “The executive Power shall be vested in a President of the United States.”
As former Justice Scalia — a proponent of the theory — asserted in his dissent in Morrison v. Olson (1988), “this does not mean some of the executive power, but all of the executive power.”
Make no mistake: The “unitary executive” theory is thinly disguised justification for authoritarianism. If implemented, it would be a major step for the anti-democracy movement.
Two of the most influential figures behind this effort are Jeffrey B. Clark and Russell T. Vought. During Trump’s presidency, Vought was director of the Office of Management and Budget. Clark, who oversaw the Justice Department’s civil and environmental divisions, was the only senior official at the department who tried to help Trump overturn the 2020 election.
Both are now acting as Trump’s brain trust to put the “unitary executive” theory into action if Trump wins.
A personal note: I worked in the Justice Department in 1974 and 1975, under Attorney General Edward Levi, when the department was trying to regain the legitimacy it had lost under Richard Nixon — who had used the Justice Department to go after his “enemies.”
Central to restoring public trust were new guidelines. They allowed a president to set broad policies for the department (such as directing it to put greater resources and emphasis on particular types of crimes or adopting certain positions before the Supreme Court). But they barred a president from getting involved in specific criminal case decisions absent extraordinary circumstances, such as if a case has foreign policy implications.
Unfortunately, those guidelines were never put into law.
Nonetheless, if Trump is reelected, he would need at least five justices on the Supreme Court to go along with his “unitary executive” theory.
He is dangerously close to having them already. Last month, in United States ex rel. Polansky v. Executive Health Resources (decided June 16), three Supreme Court justices suggested they’d employ the “unitary executive” theory to invalidate whistleblowers’ lawsuits because the president didn’t appoint them.
How alarmed should we be?