The unitary executive is on the march. Since the Founding, there has been ongoing—and sometimes fierce—debate concerning the nature and scope of the President’s powers to control, direct, and fire executive and administrative officials. Proponents of the unitary executive argue for a high, if not complete, degree of presidential control. Proponents of executive pluralism argue that Congress has discretion to insulate various officers, employees, and agencies from presidential direction. Over the past 15 years, the Roberts Court has adopted an increasingly deep commitment to the unitary view.
The second Trump administration has taken advantage of this development to fire executive branch officials and to assert power to transform the bureaucracy and even dismantle administrative agencies. In Trump v. Wilcox, the Court stayed district court injunctions on Trump’s removal of members of the independent National Labor Relations Board and the Merit Systems Protection Board, despite statutory restrictions on their removal. In balancing the equities, the Court concluded that “the Government faces greater risk of harm from an order allowing a removed offer to continue exercising her statutory duty than a wrongfully terminated officer faces from being unable to perform her statutory duty.” The rights and duties of the President to control other officers now apparently outweigh those officers’ rights and duties to carry out the law. The Court thus seems to be preparing, in Trump v. Slaughter, to overrule Humphrey’s Executor and expand the President’s power to fire the heads of independent agencies.
Nathaniel Donahue’s splendid new article Officers at Common Law shows how this unitary theory—which is often justified on the basis of originalism—fails to account for the legal forms of official accountability that existed at the Founding and in the early Republic. The common law of officers, drawn from British and colonial practice and transplanted to the federal level, understood executive officers to be personally responsible for the laws they were charged with administering and potentially liable for acting beyond their authority. The system was not principally hierarchical—nor could it be, given the absence of a modern bureaucratic state and the decentralized nature of American governance. Rather, persons injured by administrative actions could sue officers for unlawful interference using common law causes of action, and the courts would hold them liable in their private capacity if they had acted outside the scope of their legal authorities.
This kind of statecraft is structurally inconsistent with the brutalist-modern architecture that the unitary executive contemplates, where the President, vested with a democratic mandate, wields the bureaucracy of the federal government as an instrument of his personal-political power. The “original” government was not a towering monolith, but a sprawling political village made up of multiple officer-freeholds, their owners subject to liability for trespass for injuring the persons or property of the townspeople. This historical context, which Donahue amply documents, casts doubt on the notion that the ambiguous phrases “executive power” or “take care that the laws be faithfully executed” entailed the President’s unilateral control power over all officers.
Donahue is not the first to examine the distinctive role of the law of officers in American political development and administrative law. Karen Orren, Jerry Mashaw, and Nick Parrillo’s classic studies unearthed a lost world of “officers’ rights,” damage suits, and fee-based compensation that provided substantial, but limited, forms of accountability for administrative misfeasance. Donahue’s study is a major contribution to this line of scholarship. It stands out both for its combination of legal and historical granularity and for its critical interventions in contemporary constitutional controversies. Examining a wealth of state and federal case law, as well as treatises and manuals for justices of the peace and other local officers, Donahue uncovers the mazes of personal, legal, and monetary accountability through which the Constitution was initially administered.
This account then yields novel insights for contemporary questions concerning the scope of the President’s control over administrative agencies. The unitary theory suggests that any discretionary decision must be subject to presidential control. Donahue shows, however, that the system of personal-official responsibility at common law sometimes meant that subordinate executive officers retained politically-uncontrolled discretion where the statute confided the decision or even the “opinion” in them. To the extent that scholars and jurists like Professor Jennifer Mascott and Justice Thomas would expand the definition of “officer” to require political appointment deep into the administrative hierarchy, the common law of officers might require such officials to hold independent decisional powers.
This scholarship, like much honest and careful historical scholarship, does not yield clear and unambiguous instructions for courts in answering specific legal questions. While it shows that the unitary theory relies on a vision of bureaucratic hierarchy that was foreign to the Framers, it doesn’t tell us directly whether the President may fire a member of the Federal Reserve Board, and for what cause and with what procedure, or whether the president may fire tens of thousands of civil servants under the guise of a “reduction in force.” One could certainly rely on Donahue’s work to make strong originalist or traditionalist arguments against broad readings of presidential control. But that’s not all the work is useful for, beyond its intrinsic academic merit. From the standpoint of constitutional and political theory, it discloses the risks of our current moment, as well as promising opportunities for non-reformist reform.
As to risks, the argument shows that, whatever unilateral control the President had in the Founding period, it was embedded in and constrained by horizontal patterns of accountability to citizens, to the law, and to the courts. At present, we have an administrative state in which officer suits play a marginal role, at best, and the equitable jurisdiction of the federal courts affords disanalogous and diminishing relief. If the Court and the President continue to institute a maximal form of the unitary executive theory, it will not be constrained by common law in the way Founding-Era practice was. Hierarchy without constraint is a recipe for authoritarianism.
As to reform possibilities, the pluralistic form of official accountability at work in the early Republic opens up possibilities for flattening and distributing the federal executive power. We will not and should not return to quasi-aristocratic rule by local notables. Nor will Jacksonian party-patronage come back in precisely the same form it first arose. But the common law of personal accountability for statutory duties has an important message for the present: The law may fail in its execution unless social structures and political values equip officers with not only the authority, but also the obligation, to administer law faithfully.
