Since January 20, 2025, the United States of America has lived to the rhythm of an executive power that has known no respite. Donald Trump, the now 47e president, imposes his infernal cadence, signing many decrees (Executive Orders) so that the entire federal administrative machine is in line with its wishes.
The maelström created by the occupant of 1600 Pennsylvania avenue was accompanied by a massive dismissal and a step of independent federal agencies, which are seen by the chief of the executive as holding “Important executive powers without making enough accounts to the President and, through them, to the American people”.
The will of President Trump is clear: he intends to implement the theory of the unitary executive. Designed by the American right during the Reagan years, it starts from a postulate of disconcerting simplicity: article 2 of the Constitution having that “(L) e executive is entrusted to a president of the United States of America”said executive power cannot be exercised by a person or entity independent of the presidential will.
Concretely, what is unitary executive theory?
Prized by the Republican Party, the theory of the unitary executive meets a political need. Faced with the emergence of “the administrative state” which, composed of plethora of agencies, diluted the federal executive power, this doctrine is in line with the DNA of the Grand Old Party, hostile to Big Government And reluctant to leave in “non -elected bureaucrats” in the hands of directing public affairs and making important political choices.
The multiplication of independent agencies, however created by the will of the legislator in order to preserve certain specific areas of the strokes caused by political alternations, is therefore perceived as a dispossession of the executive power devolved to the President of the United States alone-and, therefore, as an obstacle to the exercise of the political mandate which was entrusted to it.
Thus, the so-called “maximalist” version of the theory of the unitary executive would result in the possibility, for the President of the United States, to discreet the management of federal agencies at discretion-whether independent or not-and to exercise increased control over their functioning. This is precisely what Donald Trump is implementing, violating federal legislation and some precedents.
Indeed, if Donald Trump’s second term is marked by the large number of legal appeals made against his first decisions, those related to the dismissal of directors of federal agencies are singular. Depted from his duties by the President of the United States, Gwynne Wilcox, president of the National Labor Relations Board, filed an appeal to a federal court.
Legally, his dismissal is subject to the existence of a fault. The Trump administration is aware that Gwynne Wilcox’s dismissal is illegal. However, she believes that the federal legislation in question is unconstitutional. The assumed objective of the new administration therefore implies the creation of legal disputes allowing it to reach the overthrow of an eighty-year-old jurisprudence.
Humphrey’s Executor, thorn in the foot of theory
In 1935, the Supreme Court confirmed unanimously the possibility, for the Congress, to subordinate the dismissal of an agency director (in this case, here, of the director of the Federal Commerce Commission) to the existence of a fault. The Humphrey’s Executor judgment has become the target of the American right, which, like the very conservative judge Antonin Scalia, sees it “Six pages (stop) devoid of historical or textual preceding”.
This short rant, resulting from the dissident opinion of the magistrate in the Morrison v. Olson, symbolizes all the acrimony of the conservative legal movement for the judgment of 1935. Strategically, President Trump strikes at the right time: in addition to the fact that the overthrow of Humphrey’s Executor is one of the objectives of the “2025 project” – which sees it as a violation of the principle of separation of powers -, the venerable judgment has already been weakened by the current majority of the supreme court.
The theory of the unitary executive could put in the hands of a single man an excessive amount of power.
In 2020, with the Seila Law judgment, the Supreme Court brought a major hit to the right deemed by the right. By affirming that the law subordinating the dismissal of the director of the Consumer Protection Office in financial matters (CFPB) to the existence of a fault contravene the principle of separation of powers, it paved the way for the reversal of the Humphrey’s Executor judgment. However, Seila Law establishes a distinction with the old previous one, recognizing the singularity of the director of the CFPB. However, through his dissident opinion, judge Thomas, joined by judge Gorsuch (appointed by Trump in 2017), cast doubt on what will happen to the 1935 judgment, which he sees as “A direct threat to the constitutional structure”.
The inflection of the Supreme Court has been taken into account by the Trump administration and its attempt to reversal the Humphrey’s Executor judgment is fully assumed: in a letter addressed to Richard Durbin, member of the Senate Judicial Committee, the Advocate General of the United States by acting Sarah Harris said that “The department (of justice) intends to ask the Supreme Court to overthrow this decision”.
An even stronger illéliberal drift?
Could the advent of the theory of the unitary executive result in an even stronger illiberal drift? The question asked is more due to the distribution of executive power than its extent, as noted by law professor Ilya Somin in an article published in the Reason media.
For the academic, associated with the Cato Institute libertarian reflection group, the extent of the executive power is today larger than in the past. Without returning to the so -called original conception of this extent, the theory of the unitary executive could put in the hands of a single man an excessive amount of power.
Thus, if the supporters of originism, who consider that the Constitution should be interpreted according to the meaning it had at the time of its ratification, believe that the theory of the unitary executive responds to this interpretation, Ilya Somin maintains that this should not be the priority. “(L) originalists should give priority to the reduction in the extent of the executive power rather than the restoration of the unit. Indeed, the first is the only safe (and originalist) means of allowing the second ”concludes Professor Ilya Somin.
