Context
The unitary executive: The six Republican justices on the current USSC (US Supreme Court) support an authoritarian radical legal theory called the unitary executive. Of the six, only Alito has publicly stated he supports a unitary executive. The support of the other five is implicit but clear from their decisions and reliance on the shadow docket to dismantle democracy with essentially no explanation. The implicit, unstated goal of a radical right unitary executive is to establish a dictatorship that (1) calls itself a democracy, and (2) is run by an unrestrained president who is above the law. The explicit stated goal is that by giving almost unlimited power to the president, they will be more accountable to voters via elections than presidents in the past have been.
So far, the six Republican judges have not explained how an unrestrained president will be constrained by elections alone. The six simply say that elections will be the accountability mechanism and our liberty will be protected that way. They provide no explanation of how that would actually work in view of how democracy and elections currently work. They also ignore dissents in their opinions that expose the logical incoherence of empowering a dictator and then expecting them to be accountable to the people. Empirical evidence about dictatorships indicate that they are simply wrong. By definition, dictators are not accountable to the people. Calling a president with dictator-level power a "unitary executive" does not change the fact that he is still a dictator. The disdain of the six Republican judges for reasoned dissenting argument is evidence of their authoritarian intent.
Dictatorship science: From a social science point of view, the unitary executive theory operates on a catastrophically flawed assumption about competence and the public interest. Political science systematically refutes the idea that loyalist-staffed agencies will govern effectively and serve the public rather than the president's personal interests or special interests. There is no mechanism that would ensure service to the public interest as long as a unitary executive is in office. Available evidence shows the opposite occurs routinely (and this), with the dictator and allied special interests generally benefitting at the expense of the public interest and civil liberties.
The experts opine
A NYT opinion (not paywalled) by legal scholars of democracy and dictatorship assess the current state of affairs with the USSC regarding our democracy and rule of law. At issue is radical right authoritarian or MAGA attacks on the independence of supposedly independent federal agencies. Court’s right wing has made clear over several terms that the New Deal/Great Society model of expert, semi‑independent agencies is basically unconstitutional. The opinion ties this to recent and pending cases about agencies like the CFPB, SEC, FTC, NLRB, and others.
According to the experts, the USSC is (1) further removing of restrictions on a president’s power to fire people with or without any reason, (2) placing limits on agencies’ funding outside the annual appropriations process, and (3) limiting delegation of authority from Congress to executive agencies. This is part of a coordinated campaign to gut and neuter the administrative functions by shifting power from congress and federal agencies to the president.
In particular, agencies that serve democracy and the public interest while constraining a president, e.g., ethics offices, civil service protections, and protections for consumers, labor, environment, and elections, are all attacked. They are weakened or completely neutered as unconstitutional or “unaccountable”. By contrast with gutting public interest federal functions, agencies that enable Trump, e.g., ICE, DOJ leadership, partisan election enforcement, and the national security apparatus, are folded more tightly under direct presidential control. The net effect has been and is continuing to be a transfer of an enormous amount of unaccountable power to the president, i.e., the unitary executive.
In short, the USSC’s ongoing project is not a neutral rebalancing of power. Instead, it is a focused, wholesale empowerment of presidential power that is aligned with his own interests and those of allied special interests. That presidential power is not aligned with the public interest, democracy, the rule of law or civil liberties. It is aligned with the president himself.
The one-way flow of power: Finally, the experts point out that that the Court’s supposed concerns about “accountability” and “separation of powers” overwhelmingly cuts in only one direction, namely in favor of the unitary executive. Environmental, labor, consumer protection, civil rights, and financial regulatory agencies are gutted and neutered. By contrast, corporate and wealthy interests gain major new leverage, e.g., by blocking or nullifying complex regulation. Also, when the Court invalidates or narrows agency powers, it rarely insists that Congress actually step in to fill the gap. The USSC knows full well that polarization and gridlock will keep our broken Congress from doing much of anything to compete with the president for the affected powers.
Collectively, all of that contradicts elite MAGA claims that these power flows are about a legitimate constitutional structure. Instead, this is about major deregulatory politics disguised as distortions about what the Founders intended and actually produced. The USSC's administrative‑law project is partisan institutional engineering, not a neutral, principled or fact-based exercise of constitutional theory.
Points for consideration
Accountability America's democratic regulatory state depends on a mix of laws enacted by Congress, expert implementation of those laws by agencies with expertise, and procedural safeguards, transparency, and judicial review to protect the public interest. Weak, delegitimized independent agencies will be unable to resist abusive, partisan, or corrupt uses of power exercised by a unitary executive. In essence, we will have a dictator for a president, or something close to it.
Is that a plausible assessment of our current situation? What compelling empirical evidence is there that contradicts that assessment?
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