The Court as handmaiden to executive power
The Supreme Court as handmaiden to unchecked presidential power shatters the picture of a nation founded on ideals that included the rule of law, separation of powers, checks and balances, a constitutionally constrained executive, legislative dominance, and the power of judicial review. The Court, the founders believed, would exercise its authority to superintend the Constitution that the American people ratified, one that sharply curtailed executive powers. It possessed no discretionary authority to expand them.
Justice Joseph Story, the most scholarly of justices, declared in 1820 that the Court was “not at liberty to add one jot of power to the national government, beyond what the people have granted by the Constitution.” The justices, it bears reminder, are not exempt from the principle of the rule of law. Indeed, they take an oath under Article VI, section 3 “to support this Constitution.”
What makes this sordid behavior of the Court even more galling, beyond the fact that it is an exercise in judicial fiat, is the fact that it represents an affront to the fundamental principles and purposes for which it was created – and expected to serve – and rests on an insupportable historical thesis entirely devoid of evidence. It also reflects a glaring hypocrisy that removes the mask from the philosophical doctrine of constitutional interpretation that it purports to advance.
Six of the current justices – Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Chief Justice Roberts – have rendered decisions that reflect a demonstrable commitment to the theory of a unitary executive which has been erroneously characterized by its defenders and some commentators as “conservative.” In truth, there is nothing “conservative” about this theory, which represents a radical departure from the structure of the presidency created by the framers of the Constitution. A genuinely conservative model would preserve and protect the founding principles and traditions, not destroy them, in service of autocracy. This notion of a unitary executive, cut from whole cloth, ignores the discussions, values and principles that shaped the presidency in the Constitutional Convention.
James Madison spoke for the Convention when he declared that the executive powers are “confined and defined,” part of the carefully crafted design that enumerated powers, not merely to the legislature and the judiciary, but also to the presidency. The unitary theory of the presidency does not remotely resemble the framers’ creation, but, indeed, represents contempt for every word and every syllable that they uttered when discussing the newly minted executive.
The unitary theory would clothe the president with all power conceivably executive in nature and ignores the textual power of Congress regarding appointments, the Necessary and Proper Clause, and the admixture of powers central to checks and balances. It asserts that the president – a singular person – is the embodiment of the executive branch. In this capacity, he is everywhere, all at once, and his power is inviolate, impervious to congressional regulation grounded in the Constitution and not fully subject to review by the courts.
Beginning with its indefensible and pernicious ruling in Trump v. United States (2024), which conferred on the presidency sweeping immunity from prosecution, to its recent rulings that break from 90 years of precedents to hold that the president possesses unenumerated powers to fire government officials without congressional approval and to bring prosecutions on behalf of the United States, the Court has facilitated President Trump’s agenda and his unprecedented use of executive orders to revise the character, content and shape of America’s legal and governmental structure.
The irony is that these six justices, firmly in control of the Court, profess to embrace the doctrine of original intention jurisprudence, which claims to interpret the Constitution in accord with the framers’ aims and purposes. But their assertions of the unitary executive theory cannot be squared with what was said and done in the Convention.
There was, in the Convention, no challenge to the definition of “executive power” advanced by James Madison, James Wilson and Roger Sherman. No delegate advanced an alternative understanding. Nor was there any argument about the scope of executive power. As Wilson explained, “executive power” was limited “to executing the laws and appointing officers.” Madison’s reminder that in a republic “the legislature necessarily predominates” is lost on this Court, eager to feed presidential power, oblivious to its hypocrisy. The justices cannot be both originalists and advocates of the unitary executive, a theory at war with the framers and the Constitution.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. He can be reached at david.adler@alturasinstitute.com.