The Right-Wing Justices Know Their Favorite Legal Theory Is Bunk

Now that the Supreme Court’s conservative bloc is putting this unitary executive theory to the test, its cracks are beginning to show—and its proponents are flailing.

https://newrepublic.com/article/204737/supreme-court-unitary-executive-theory

https://web.archive.org/web/20260102174849/https://newrepublic.com/article/204737/supreme-court-unitary-executive-theory


Rebecca Slaughter, former commissioner at the Federal Trade Commission, departs the U.S. Supreme Court. The court’s conservative bloc signaled that it’s poised to give the president control over potentially dozens of traditionally independent federal agencies.

The media’s takeaways from the December oral arguments in the Trump Justice Department’s bid to the Supreme Court to invalidate multimember “independent agencies” were unanimous: It was a big win for Trump and for legal conservatives’ decades-long drive to free presidents from congressionally imposed checks on presidential control over executive agencies and personnel. The widely anticipated result would render two dozen commissions and boards that have wielded political authority for decades unconstitutional at a stroke.

To provide a modicum of insulation from political interference, their governing statutes prescribe that the president may only remove commissioners or board members for “cause”—usually defined as “inefficiency, neglect of duty, or malfeasance in office.” Such limitations on presidential removal authority run counter to the “unitary executive theory” treasured by the conservative legal movement. On all sides, pundits heard all six conservative justices signaling that they would likely apply that theory to uphold Trump’s unexplained dismissal of Federal Trade Commissioner Rebecca Slaughter, eliminating for-cause removal safeguards and with it, multimember agency independence.

This consensus take is accurate as far as it goes. But beneath the conservative justices’ convergence around that bottom line, the lengthy session exposed reservations, confusion, and differences across the conservative bloc, potentially heralding divergence, uncertainty, proliferating lawsuits, and regulatory gridlock in years ahead—perhaps even this term. The right-wing justices’ emergent disarray seemed to reflect their awareness of pitfalls lurking in and around their hitherto unquestioned unitary executive gospel—including logical, legal, and most of all, real-world consequences that menace the economy, the nation, and the court itself.

With these threats suddenly hoving into view, the conservative justices were flailing to figure out credible strategies to head it off. Obviously, the gritted-teeth dogmatism of the conservative justices is the engine that has driven this kooky theory forward, despite its evident lack of grounding in constitutional text and history. But liberals also deserve blame. They have stood by while conservative presidential absolutists have framed the debate with labels, shibboleths, and catchphrases that, while misleading or outright false, have tilted the playing field rightward.

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