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Marshall on the (Maximalist) Unitary Executive Theory
tl;dr: Made-up constraints on Congress’s power: How is this a conservative theory?
At the core of the Trump administration’s theory of executive power lies a mistake. It’s easy to see how the mistake got going. It’s troubling to see how far it has traveled.
The mistake involves the question of the President’s power over the administration of federal law. Article II of the Constitution gives the President the duty to “take Care that the Laws be faithfully executed.” That duty has been taken to imply certain executive power — at a minimum, a complex removal power, and the power to oversee the administration of federal law by officers of the United States. How far the power extends beyond that minimum has been the subject of scores of cases since the Constitution was enacted almost 240 years ago.
But recently, there’s been an effort to simplify the substance of these cases into a purer, more tweetable form. My colleague Adrian Vermeule has articulated a prominent example of this simpler form. In a Substack essay, The Head and Body of Leviathan, Adrian maps “the ultimate legal consequences of the constitutional conception of executive power, as the Supreme Court currently understands it.” “How far,” he asks, “might the logic of that conception go?”
