The How: Acts Four and Five.
March 25, 2025.
Continued from March 23, The How: A Play in Five Acts
Act Four.
In Which a Unitary Executive Runs Amok
Don’t throw
away this thing we had
‘Cause when
push comes to shove
I will kill
your friends and family to remind you of my love
So sings our last King, George III, in Lin Manuel Miranda’s Hamilton.
If you think it matters what presidents, courts, and Congress have said and done in interpreting the Constitution in the more than 230 years since it was written, that makes you a living constitutionalist.
Constitutional originalists, and Unitary Executive
Theorists, believe the debate and events leading to creation of the law
constitute an objective legal construct, and that’s that. In other words, originalists
hold that the Federalist Papers are fair game because they illuminate what went
into the Constitution, but nothing after adoption of the document is written
should be considered in interpreting constitutionality.
Except for the Decision of 1789.
Originalists contend that so many of the delegates to the
Constitutional Convention were included in the first Congress that what they did
and thought counts, too.
Unitary Executive Theorists seize on that because in 1789 the
first Congress left to the president broad removal power, the ability to hire
and fire Executive Branch officers.
Removal authority has been a contentious issue ever since,
with significant Congressional and Supreme Court action through the centuries.
But for Unitary Executive Theorists, everything stops with the Decision of 1789.
What the Founders Thought
There were huge differences among the state delegations –
north and south, large and small, religious and other divides. Time was short,
the job was big, and to reach agreement, they compromised on some issues and
deferred others. Deciding not to decide was a viable option, and they took it. The
first Congress did the same.
To counter the originalists, living constitutionalists point
to the many indecisions of 1789. To avoid another rabbit hole, call me a living
constitutionalist. See U Penn Law for a good example
of this debate.
Originalists also zoom in on Federalist No. 70, in which
Hamilton argues for a single “energetic” head of the executive branch. In
context, however, Hamilton is not arguing for the unlimited power of a
president. He is arguing against repeating the ineffectiveness of diffuse
leadership under the Articles of Confederacy.
The Articles had only a legislature. Hamilton supported the
Constitution’s addition of a Judicial and Executive Branch so that the
government could carry out its basic functions.
He argued that there should be only one chief executive –
not two or more. And he was very aware he needed to overcome the
Anti-Federalist fear that the Constitution would lead to a monarchy.
In the full context of the Federalist Letters, and the
Constitution, the creation of a tripartite government would provide a
functional central government, with adequate checks and balances to prevent it
from having too much power over individual or states’ rights. An agreement was
struck before the ink was dry that work on a Bill of Rights would commence
immediately.
Origin of Unitary Executive Theory
Almost 200 years later, when President Reagan got in hot
water over the Iran-Contra scandal, Congress launched an investigation. Members
of the Justice Department believed that was an overreach, and the Unitary
Executive Theory was born. President George W. Bush later relied on the theory
to expand presidential authority.
But it took Donald Trump to make Unified Executive Theory a
soon to be household term. Theory is one thing, pushing the envelope is another,
Trump is blowing things to pieces.
In asserting his unlimited power as president, Trump rejects
important concepts that have been bedrock parts of our government for decades,
if not centuries. That includes independent agencies, executive oversight, and
the civil service sector.
Independent agencies include everything from the Federal
Reserve Board to the Justice Department, which includes the FBI.
Executive oversight includes the Inspectors General fired by
Trump immediately after his inauguration as well as Congressional oversight.
The Civil Service Commission was established in 1883 to
create a merit-based hiring system for federal workers. It replaced the spoils
system, under which cronyism, nepotism, and corruption ran rampant.
A New Spoils System
One of Trump’s favorite presidents is Andrew Jackson. When
Jackson took office in 1829, his supporter, Senator William Marcy, declared, “To
the victor go the spoils of the enemy.” Jackson’s new spoils system doled out
jobs to political patrons and hacks and appointed unqualified supporters to
senior positions.
I was slow to crack the code. The Deep State equals
independent agencies and oversight. Waste, fraud, and abuse equals civil
service. It took me longer to realize that Trump and DOGE are introducing a new
Jacksonian-like spoils system.
If there are any doubts, see the notes for the February 18
presidential action, Ensuring Accountability for All Federal Agencies. He is
not messing around.
Trump’s overreach does not stop with the Executive Branch. Congressional
oversight has melted away, as Trump has made clear any Republican failing to
obey orders will be primaried, or worse. Now he is turning up the heat on the Judicial
Branch, calling for impeachment of any judge who rules in a manner he decides
is unfavorable. The House responded, “how high,” and is considering legislation
to target “activist judges.”
After just two months, Trump is our de facto Unitary Executive.
As the lights dim on Act Four, special effect smoke swirls
and a single spot focuses on Trump, rising through a trap door center stage.
Curtain down.
Act Five.
In Which Our Fate Hangs in the Balance.
I warned you about a rabbit hole. I only cited three of the
eighty-five Federalist Letters. We skipped Maddison’s Virginia Plan and William
Patterson’s New Jersey Plan and never mentioned Article II, Section 3’s
Faithful Execution or Take Care Clause. I did not cite Humphrey’s Executor or
Seila Law. Links to articles from the legal literature are included in case you
want more.
In the weeks to come, expect to hear more about references
like those. Because Trump’s February firing of Gwenn Wilcox from the NLRB,
despite her term being unexpired, triggered a lawsuit that is likely to reach
the Supreme Court and serve as a test of presidential power. Other suits
testing presidential powers and the Unitary Executive Theory are wending their
way through the courts, too. Team Trump cannot wait. They want the fight.
Trump is disbanding agencies created by Congress,
reallocating funds authorized by Congress, gutting the civil service,
eliminating oversight of his office, and deciding to ignore or suspend laws.
Separately, each is a bold expansion of Executive power. Cumulatively, they are
an assault unprecedented in American history.
The Supreme Court has a 6-3 conservative majority. Trump
appointed three of the six.
It is 1787 again. America is deciding if we will have
balanced government, with checks and balances, or if we will submit to rule by
a single person.
The stage is empty. Act Five ends. The curtain closes. The
audience shuffles out.
Notes.
Please consider the notes for Acts 1-3 as cumulative with
the notes for Acts 4-5.
https://hamiltonmusical.com/new-york/
https://www.journals.uchicago.edu/doi/full/10.1086/714860
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1083&context=public_law_and_legal_theory
https://www.law.cornell.edu/wex/unitary_executive_theory_%28uet%29
https://www.historians.org/resource/what-is-federal-civil-service-like-today/
https://www.archives.gov/milestone-documents/pendleton-act
https://www.whitehouse.gov/presidential-actions/2025/02/ensuring-accountability-for-all-agencies/
https://people.howstuffworks.com/virginia-plan-vs-new-jersey-plan.htm
https://constitutioncenter.org/the-constitution/articles/article-ii/clauses/348
https://www.yahoo.com/news/why-founders-left-presidential-powers-151215429.html
https://www.montpelier.org/learn/constitutional-check-up/
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?params=/context/penn_law_review/article/9808/&path_info=Shugerman_Final.pdf
https://genius.com/Jonathan-groff-and-original-broadway-cast-of-hamilton-youll-be-back-lyrics
https://www.axios.com/2025/03/17/tom-homan-deportation-flights-trump-court-order
https://www.foxnews.com/politics/trump-calls-judge-deportation-legal-battle-impeached
https://www.cnn.com/2025/03/21/politics/trump-signature-alien-enemies-act-proclamation/index.html
https://www.npr.org/2025/03/18/g-s1-54493/judge-boasberg-trump-deportation-flights
https://www.cnn.com/2025/03/21/politics/trump-signature-alien-enemies-act-proclamation/index.html
https://apnews.com/article/donald-trump-federal-judges-impeachment-29da1153a9f82106748098a6606fec39
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9808&context=penn_law_review
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1083&context=public_law_and_legal_theory
https://constitution.congress.gov/browse/essay/artII-S2-C2-3-15-2/ALDE_00013108/
https://millercenter.org/president/jackson/domestic-affairs
https://theconversation.com/president-trump-may-think-he-is-president-jackson-reincarnated-but-there-are-lessons-in-old-hickorys-resistance-to-sycophants-248532
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