The Unitary Executive Theory and Supreme Court Removal Power Jurisprudence

• In Event: The Supreme Court in American Constitutional Development

Abstract

Since the presidency of Donald Trump, public and academic interest in the theory of the unitary executive has increased exponentially. One of the most important aspects of the unitary theory is its political weaponization of the president’s removal power as a means of asserting control over independent regulatory agencies. Whether such a use of the removal power is constitutionally legitimate has, however, remained contested, both in academic discourse and Supreme Court jurisprudence. Two recent Supreme Court cases, Seila Law LLC. v. Consumer Financial Protection Bureau and Collins v. Yellen have been touted as watershed cases in which the Court fully embraces the unitary theory’s version of the removal power. In this paper, I seek to investigate this claim, and determine to what degree Seila Law and Collins genuinely indicate a final legal sanctioning of the unitary theory. Additionally, I inquire as to whether it is actually necessary for the Court to fully affirm the theory of the unitary executive for the president to make meaningful political use of the removal power. I find that, after a historical case study analysis of the Court’s removal power jurisprudence, the only way by which the Court can provide a full legal endorsement of the unitary theory is by unambiguously overturning Humphrey’s Executor v. United States. I also find that, while the Court has limited the removal restrictions implemented by Humphrey’s Executor in a number of cases it has never seriously considered fully overturning its prior decision. Thus, while Seila Law and Collins do provide a stronger legal justification for the president’s unilateral removal power, they are in no way full-throated affirmations of the unitary executive theory.

Author

• Joseph Karol Natali, Baylor University