Weaker versions of unitary executive theory argue that the president has near absolute authority when exercising core constitutional responsibilities such as supervising the military but must accept the authority of Congress to structure independent agencies so that there are removal protections. They accept Humphrey’s Executor v. United States (1935) as settled law. William Humphrey was fired as a commissioner of the Federal Trade Commission by Franklin Roosevelt because of policy disagreements. Humphrey sued, and after his death his estate continued the litigation on his behalf. The Supreme Court ruled that Congress could establish quasi-legislative agencies like the FTC and restrict the authority of the president to remove their members.
Perhaps no case better illustrates how the conflict has evolved than Morrison v. Olson from 1988. In this case, the Supreme Court upheld the independent counsel provision of the Ethics in Government Act. Independent counsels, once appointed, had an unlimited budget and could essentially choose when to end their investigations. The Court’s decision was 7-1, but Justice Antonin Scalia’s lone dissent is more important today than the majority opinion. He famously said, “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” While obviously in a minority at the time, his position eventually became widely accepted. In fact, when Democrats became disillusioned with independent counsels because of Kenneth Starr’s Whitewater investigation, they dusted off Scalia’s dissent to defend their position. In 1999, a bipartisan majority in Congress refused to reauthorize the provision. Given the widespread agreement with Scalia’s reasoning, which was grounded in unitary executive theory, you could say we’re all in some sense unitarians now.
The debate over the unitary executive has, of course, come roaring back with Trump’s reascension to the presidency. Quite obviously, his administration prefers the maximalist position. Undoubtedly, at least one of his actions will force the Court to reconsider whether Humphrey’s Executor can be reconciled with the Constitution. And it could involve education.
Unitary executive theory is particularly relevant to the Institute for Education Sciences, or IES. That’s because that Institute, and its four centers, are supposed to enjoy a degree of independence from the rest of the U.S. Department of Education and from political control via the president and U.S. Secretary of Education. The director of IES serves a six-year term, so as to span presidential administrations, is advised by a presidentially appointed board (the National Board for Education Sciences), and can only be removed for cause. Likewise, the director of the National Center for Education Statistics, or NCES, serves a six-year term. Finally, the National Assessment of Educational Progress, also known as the Nation’s Report Card, is overseen by a board (the National Assessment Governing Board, or NAGB) that is appointed by the education secretary. It is designed to span administrations and be largely apolitical.
The Trump Administration has already taken actions that challenge the independence of IES, NCES, and NAGB. It has canceled hundreds of millions of dollars in IES contracts, including those for an upcoming administration of Long-Term Trend NAEP for 17-year-olds. It also put Peggy Carr, director of NCES, on administrative leave, despite her appointment in 2021 for a six-year term. When asked why Carr was placed on leave, an administration spokesperson said it was because she was appointed by President Biden—a tip of the unitarian hand.
Given the relatively lower profile of these agencies, they might be an inviting test case for the administration. If IES lost its independence, it would hardly be as significant as if the same fate were to befall the Federal Reserve or the FTC.
President Trump, for his part, doesn’t seem worried about making others worry. Quoting Napoleon on X, “He who saves his Country does not violate any Law,” would be one obvious hint. However, debates and concerns about executive power have been interwoven throughout American history. Edmund Randolph famously called Article II the “foetus of monarchy” when he spoke against the Constitution in the Virginia ratifying convention. Today’s critics of Trump would be in a much stronger position if more of them had been at least half as concerned with dramatic expansions of executive power by presidents Obama and Biden. Thinking constitutionally requires thinking beyond your immediate political self-interest. After all, one day it might be your ox that’s getting gored. Lamentations about violating norms and principles are likely to be greeted skeptically if they only seem to arise when it’s politically useful. A constitutionalism of convenience is no constitutionalism at all.
