Yesterday, we closed out the semester in Administrative Law by talking about competing versions of the “unitary executive” theory. This theory holds that the president possesses the authority to control all actions of the executive branch.

The weakest form of the unitary executive theory merely recognizes that the president is the head of the executive branch under Article II, but Congress can create agencies to implement federal statutes and place some conditions on the president’s control over them.

The strongest version, in contrast, holds that presidential will is superior even to law, especially on areas within the president’s Article II powers like foreign affairs.

The Culture Wars and the Unitary Executive

While it may not sound as hot-button as immigration or transgender rights, for over a decade the unitary executive theory has been the focal point of a conservative agenda to win the culture war.

A conservative political initiative called Project 2025 says, “It is not enough for conservatives to win elections. If we are going to rescue the country from the grip of the radical Left, we need both a governing agenda and the right people in place, ready to carry this agenda out on Day One of the next conservative Administration.”

A key pillar of this policy agenda is to enact the strong form of the unitary executive theory. In its book-length policy statement, Mandate for Leadership, Project 2025 author Russ Vought writes, “[t]he modern conservative President’s task is to limit, control, and direct the executive branch on behalf of the American people.” That task, according to Vought, is impeded by the practice of Congress creating executive agencies to implement statutes and allowing them some independence from the president.

A conservative president, according to Project 2025, must have full control over the executive branch. The only significant check on presidential power, in this version of the unitary executive theory, comes not from Congress but from the ballot box after four years of presidential control.

How Strong Do You Want Your President?

The unitary executive theory has some appeal from a formalist view of separation of powers. After all, Article II says the executive power is “vested in a President of the United States,” who shall “take Care that the Laws be faithfully executed.”

But in the current system, agencies decide all sorts of cases brought by the United States against individuals or private businesses under complex statutory schemes set up by Congress. And statutes like the Administrative Procedure Act have established detailed rules to make those hearings fair.

If the president has plenary control over agencies, decisions in those cases will be subject to the policy preferences of each sitting administration. The APA doesn’t apply to the president, so in the strong version of the unitary executive theory, that statute’s protections of individual rights would be out the window.

So the question becomes, how strong do you want your president? (And would you feel differently if suddenly the president were from the other party?)

The Unitary Executive in the Supreme Court

Tomorrow, the Supreme Court will hear arguments in the case of SEC v. Jarkesy. In that case, an otherwise routine agency finding of securities fraud will become the latest battleground in the unitary executive war.

Jarkesy raises three claims that, if upheld, could radically destabilize the structure and functioning of the federal government.

Limits on Delegations from Congress to the Executive Branch

The first and probably least destabilizing claim is that Congress delegated too much power to the agency without articulating parameters for exercising it. Taken to its extreme, this “nondelegation” argument could prevent Congress from delegating to agencies at all — but even a recent dissenting opinion by Justice Gorsuch didn’t purport to go near that far. More likely, success on this ground would simply mean that Congress would have to write statutes in a way that more clearly defines the agency’s authority.

Seventh Amendment Right to a Jury Trial

The second and third claims could have more dramatic consequences for government. First, Jarkesy argues that the SEC didn’t have the authority to decide his claim at all, because the Seventh Amendment guarantees him a jury trial “[i]n Suits at common law,” like fraud. By this theory, no matter how tied up a claim is with a statutory scheme like securities regulation, only a federal or state court can hear it.

At its most extreme, success on this claim could mean that thousands of cases currently heard by agencies each year would have to go to the courts instead. While the current Supreme Court leans definitively right, they also manage the federal courts, and I can’t see them storming to jump on a bandwagon that would throw the judiciary into instant chaos.

Removing Career Protections for ALJs

In my view, Jarkesy and company could radically disrupt the federal government on their third claim: that Administrative Law Judges who hear claims before the SEC and myriad other agencies cannot have protection from removal by the president — removal at any time, for any reason, or for no reason at all.

Right now, Congress has created a system where ALJs have protection from political pressure as they make their decisions. Though they are appointed by a particular agency, a separate agency called the Merit Systems Protection Board decides their salary and any disciplinary actions, including removal, which can only be for cause.

In 2010, the Supreme Court struck down another arrangement involving special SEC adjudicators because both the adjudicators and the SEC Commissioners could only be removed for cause. These two layers of for-cause protection, the Court held, diluted the president’s power over the executive branch too much. At the time, Justice Breyer in a dissenting opinion pointed out that this decision might destabilize the ALJ system — and with it, the dozens of federal agencies that use them.

If the Court declares that system unconstitutional, individuals and businesses called to answer before federal agencies will have no protection from politically-motivated outcomes designed to suit the policy agenda of the current president.

What Will the Court Do?

Jarkesy follows on the heels of numerous other cases challenging the administrative state, including several decided by a Court with the current right-leaning majority. While the Court has supported some of the strong unitary executive theories, they have often limited the effect of their decisions, crafting remedies that leave the essential agency structure in place.

Tomorrow’s arguments will provide clues as to how the justices feel about the strong version of the unitary executive.