In the most recent administrations, executive power has grown significantly through a constitutional interpretation labeled the Unitary Executive Theory (UET), an interpretation that maintains that the executive power is held in one position. This interpretation is dangerous to the Constitution and the principles of democracy and will lead to dictatorship in the United States. While every modern president has expanded executive power through the UET, former President Donald Trump’s usage of the unitary executive to give rise to dictatorship shows exactly how threatening the UET can be to the Constitution and to democracy.
If, as the UET asserts, the executive power is held in one position, then the legislative branch holds no constitutional ability to constrain actions taken by the executive, whose power is held completely by the president. This suggestion would encroach upon the separation of powers by disabling the system of checks and balances against the executive branch. In 1986, Attorney General Edwin Meese penned a report to then-President Ronald Reagan on the separation of powers. The report goes so far as to suggest that the executive branch may create and enforce crosscutting laws restricting congressional activities where the President sees fit. This could, in the event of a coup, allow the president to seize complete control over both the executive and legislative branches of government, and effectively render the judiciary powerless.
The minacity of the UET to the Constitution has shown itself most perceptibly in the most recent administration when President Trump repeatedly attempted to fire Special Counsel Robert Mueller, who was actively investigating Trump at the time. While then-Deputy Attorney General Rod Rosenstein prevented this from taking place, Trump’s final Attorney General William Barr may not have. In a 2018 memo to the president as a private citizen, Barr wrote, “Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction. Apart from whether Mueller [has] a strong enough factual basis for doing so, Mueller’s obstruction theory is fatally misconceived.” Barr continues, claiming that simply holding the president accountable to the rule of law, “would have grave consequences … and would do lasting damage to the Presidency.” Barr’s take on the unitary executive is the probable reason for his appointment to the position. Had the incident occurred under his leadership, Trump may have been able to fulfill the constitutional interpretation by expanding the powers of the president throughout the executive branch.
If the UET was in place as a stronghold in the judiciary, Trump may have achieved this. It should be noted that the latter two of the former president’s three nominations to the Supreme Court have supported aspects of the UET. Justice Brett Kavanaugh proposed to congress a statute under which “a sitting President cannot be indicted,” and, in line with General Meese’s ideas of congressional crosscutting laws, Kavanaugh suggested that “Congress should give back to the President the full power to act when he believes that a particular independent counsel is ‘out to get him.” In a stark betrayal of Justice Amy Coney Barrett’s professed originalist ideals, when asked about the UET in a congressional hearing, the Justice simply stated, “Article II provides that “[t]he executive Power shall be vested in a President of the United States of America.” While this may give the impression of maintaining her originalist values, the founding fathers would not support this interpretation of the Constitution. Trump’s initiative to fill the judiciary with proponents of the UET would indicate that he was in the process of attempting a coup prior to his ousting.
Trump did not have time to explicitly attempt to commandeer the powers of Congress using the UET. However, on January 6, Trump exhorted Vice President Mike Pence, a member of the executive, to use his (ceremonial) powers to prevent the certification of the election, and, in doing so, undermine the separation of powers. When Pence refused to violate his constitutional duty, Trump called upon a mob to storm the Capitol and forcefully stop the certification.
Over the last four years, President Trump has placed his associates and peddlers of the unitary executive theory into the federal government in order to attempt a coup. If the American people had not voted Trump out of office, he would have used the UET to utilize complete power over the executive, enabled by Attorney General Bill Barr, and his appointees to the Supreme Court to overtake the power of the Congress. The judiciary can reject this constitutional interpretation, and Congress can enact robust legislation to prevent overreach, otherwise the UET, which has been disseminated by every president in the 20th century, will undoubtedly lead to an eventual coup and the death of the Constitution.
