A critique of MAGA’s unitary executive legal theory

CONTEXT

My post yesterday urgently warned about the impending nullification of a 90-year old legal doctrine that makes it hard for a president to politicize, corrupt and weaponize independent federal agencies. The legal doctrine under threat is called Humphrey’s Executor, which was part of the name of the 1935 USSC decision to give congress the power to make it hard for presidents to ruin and corrupt critically important government functions that both parties at one time deemed to be too important for partisan politics or corruption and political weaponization. Today, the Republican Party wants to eliminate the Humphrey’s Executor precedent. That will empower djt and deeply corrupt, authoritarian MAGA elites to corrupt, politicize, and weaponize the federal government against democracy, the rule of law, civil liberties, political opposition, and tolerant, pluralist government.

A corrupt authoritarian takeover of American government and law is exactly what is going on right now in American politics, whether people know it, or believe it or not. The evidence is rock solid.

The unitary executive theory

The UET: To get rid of the Humphrey’s Executor legal doctrine, MAGA legal theory relies on the UET. The UET says the president should have powers close or equal to a true dictator. MAGA elites claim the UET is what the Founders intended and how the constitution defines the distribution of power in the federal government. Under a UET regime, the power of the courts and congress are sharply reduced and that power flows to the president. The UET, like originalism, is based on flawed legal reasoning and flawed (manipulated) history that distorts inconvenient facts. The UET is best and most rationally seen as a recipe for dictatorship.

A UET critique: The UET asserts nearly unlimited presidential control over the executive branch. It is grounded in false history and an unconstitutional legal framework. Proponents claim the Vesting Clause grants the president sole authority over federal agencies. However some historians argue that the Founding era included some independent government functions like the Sinking Fund Commission (SFC).**  The historical fact and existence of the SFC directly contradicts UET’s claims of historical and constitutional absolutism. Also, Madison explicitly rejected unchecked executive power, designing a system where Congress could counterbalance presidents through oversight and funding. Modern UET emerged not from Founding principles but from Reagan-era conservatives seeking to dismantle regulatory safeguards, later weaponized by djt to justify purging inspectors general and corrupting and weaponizing the US justice department.

** The SFC was established in 1790 by the First U.S. Congress and signed into law by President George Washington. Congress created the SFC to deal with repaying Revolutionary War debt. Its structure intentionally insulated fiscal decisions from presidential control.

Modern legal scholars warn that the UET attacks and erodes democracy by concentrating power in the presidency. The UET’s danger is exemplified by our MAGA USSC’s Seila Law (2020) decision. That UET-grounded decision weakened the Consumer Financial Protection Bureau’s independence. In short, a UET president is empowered to politicize and corrupt neutral, honest, competent agencies. This power is broad and vast, including election oversight, environmental regulation and consumer and worker protections. Various studies show that similar UET-based power grabs in Hungary and Turkey accelerated authoritarianism there.  

Polling indicates that public understanding of the UET and MAGA’s use of it is minimal. Polls show that rank and file Republicans increasingly equate “strong leadership” with unilateral executive action, a very dangerous ongoing authoritarian lie. The cynical mendacity of MAGA rhetoric praising autocrats like Viktor Orbán while dismissing checks on presidential power as “deep state” obstruction is becoming increasingly real to tens of millions of Americans. Due to its abstract legal framing, most Americans remain unaware of UET’s gigantic anti-democratic implications, especially its role in enabling corruption and undermining the rule of law. Although UET thrives in partisan echo chambers, e.g., Faux News, its historical illegitimacy and anti-democratic intent make it a deadly threat to our democracy, civil liberties and rule of law.