JURIST Guest Columnist Steven Schwinn of University of Illinois Chicago John Marshall Law School discusses President Trump and the Unitary Executive Theory
President Trump has been on a recent tear against independent inspectors general (IGs). In just the last couple weeks, he has taken significant swipes at the independence of IGs charged with oversight and investigation into federal coronavirus relief, hospital preparedness for the coronavirus pandemic, and activities of the intelligence community. And he’s done this in the name of his claimed plenary authority to supervise and control anything and everything that happens within the Executive Branch. In other words, he’s done this in the name of the “unitary executive theory.”
But President Trump’s actions don’t validate the unitary executive theory. To the contrary: they illustrate its limits, and, ultimately, why it’s just plain wrong. President Trump’s tear against the independence of the IGs show why it’s time to abandon this constitutional fiction.
President Trump’s tears started with his signing statement on the coronavirus aid and relief package that Congress passed late last month. In his statement, the President argued that Congress could not require the Chair of the Council of Inspectors General on Integrity and Efficiency to consult with Congress regarding the selection of top officials for the newly created Pandemic Response Accountability Committee, designed to oversee the new federal aid and relief program. He also argued that he could control any report that the new Special Inspector General for Pandemic Recovery might submit to Congress — contrary to the law. In support of his sweeping claims, he cited the Vesting Clause and the Take Care Clause of Article II — the textual nucleus of the unitary executive theory.
Next, President Trump fired Michael Atkinson, the Inspector General for the Intelligence Community, based on Atkinson’s role in the President’s impeachment. Recall that Atkinson received a whistleblower complaint about President Trump’s phone call with Ukrainian President Volodymyr Zelensky. Pursuant to the IGIC statute, Atkinson forwarded the complaint to the acting director of national intelligence, who was supposed to forward it to Congress. (The acting DNI derailed this process, however, and did not immediately send the report to Congress.) In firing Atkinson, the President explained only that he lacked the “fullest confidence” in Atkinson. The President cited no wrongdoing. As authority for the termination, the President referenced only his “power as President” and his “power of appointment, by and with the advice and consent of the Senate.” And while the letter didn’t specifically cite the unitary executive theory, that’s exactly what the President was invoking.
Then, President Trump took aim at the IG for the Department of Health and Human Services. The IG issued a report that hospitals were short on vital supplies and equipment to deal with the coronavirus pandemic. The report also concluded that hospitals couldn’t count on shipments from the federal strategic stockpile. The President blasted the report as “just plain wrong,” and criticized the IG as a partisan hold-over from the Obama Administration. In doing so, he adhered yet again to the unitary executive theory.
Finally, and most recently, President Trump removed Glenn Fine as the acting IG at the Department of Defense. President Trump said that he had authority as President to remove Fine, and that the move was part of a broader effort to purge his administration of partisan hold-overs from the Obama Administration. (Fine is a career official who has served both Democrat and Republican administrations.) Fine also served as Chair of the Pandemic Response Accountability Committee, the oversight body created by the coronavirus aid and relief package. Fine’s removal as acting IG also meant that he could no longer serve as Chair of that oversight committee. (But as I mentioned above, President Trump already kneecapped the IG in his signing statement on the coronavirus aid bill.) Yet again, the President’s action falls squarely within executive authority as envisioned by the unitary executive theory.
These moves are deeply troubling for anyone who cares about democratic oversight and accountability. But at the same time, the President’s behavior is really only the natural extension of a decades-long effort to entrench the unitary executive theory in our understanding of the Constitution. This effort draws heavily on Justice Scalia’s lone dissent in Morrison v. Olson (1988), the case involving the old Office of Independent Counsel, which Congress created to investigate alleged wrongdoing in the administration. As part of the independent counsel law, Congress insulated the office from the political whims of the administration, to make it, well, independent. It did this by limiting the Attorney General’s authority (and therefore the President’s authority) to fire independent counsel only “for cause” (and not at will). The Court ruled that this partial restriction on the President’s power to terminate an official did not impermissibly encroach on the President’s executive power.
Justice Scalia dissented. Writing only for himself, Justice Scalia argued that Article II gave the President, and the President alone, unilateral and plenary executive authority. He asserted that this authority included the power to control executive officials and to fire them at will. According to Justice Scalia, even the modest for-cause termination requirement in the independent counsel statute impermissibly restricted this unilateral and plenary power—the power of the unitary executive.
While the IG statutes do not contain a “for cause” removal restriction, they nevertheless ensure independence in different ways. For example, they specify that IGs should be appointed without regard to politics. They authorize IGs to engage in investigations and to issue reports about problems and deficiencies in the agencies they serve, free of political interference. And they specify that the IGs must report certain problems to Congress, even if the IGs are supervised day-to-day within the Executive Branch.
President Trump’s attacks on the IGs threaten to destroy this different kind of independence. In so doing, they put on full display, and reveal the natural extension of, Justice Scalia’s unitary executive theory in his dissent in Morrison—that the President must control (and therefore can politicize) everything within the Executive Branch.
But at the same time, President Trump’s attacks show why the unitary executive theory is wrong. In particular, President Trump’s muscular version of the unitary executive theory tramples Congress’s own robust powers. These include the power to create the administrative bureaucracy and its various offices in the first place; the power to authorize its departments and officers to enforce the law; the power to appropriate funding for the administrative bureaucracy; and, perhaps most relevant here, the power to oversee, investigate, and publicize the actions and behavior within the Executive Branch. By attacking the IGs, President Trump impermissibly encroaches on each of these congressional authorities.
President Trump’s tears against the IGs reveal the damage that the unitary executive theory can do. They also reveal why the unitary executive theory is wrong. It’s time that we call this “theory” what it is—a constitutional fiction—before this Administration can do more, and lasting, damage to our separation of powers.
Steven D. Schwinn is a Professor of Law at the University of Illinois Chicago John Marshall Law School. He teaches and writes on the U.S. Constitution and human rights. Professor Schwinn is co-editor of the Constitutional Law Prof Blog.
Suggested citation: Steve Schwinn, Trump’s Tears Against Inspectors General Tell Us It’s Time to Abandon the Unitary Executive Theory, JURIST – Academic Commentary, April 13, 2020, https://www.jurist.org/commentary/2020/04/steven-schwinn-trumps-tears/
This article was prepared for publication by Ashely Monti, a JURIST Staff Editor. Please direct any questions or comments to her at email@example.com
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.