The Court as handmaiden to executive power | David Adler

The Supreme Court as handmaiden to unlimited presidential power is not a pretty picture for a nation founded on ideals that included the rule of law, separation of powers, checks and balances, a constitutionally constrained executive, legislative dominance and the power of judicial review, which the founders believed, would be exercised to superintendent the boundaries of governmental authority, and which were enthusiastically embraced and ratified by the American people.

What makes this sordid behavior of the Court even more galling, beyond the fact that it is voluntary, is the fact that it represents an affront to the principles and purposes for which it was created and expected to serve, and rests on an insupportable historical thesis entirely devoid of evidence. It also reflects a glaring hypocrisy that removes the mask from the philosophical doctrine of constitutional interpretation it purports to advance.

Six of the current justices — Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Chief Justice Roberts — have rendered decisions that reflect a demonstrable commitment to the theory of a unitary executive which has been erroneously characterized by its defenders and some commentators as “conservative.” In truth, the theory represents a radical departure from the structure of the presidency created by the framers of the Constitution. A genuinely conservative model would preserve and protect the founding principles and traditions, not destroy them, in service of autocracy. This notion of a unitary executive, cut from whole cloth, ignores the values and stated principles that shaped the presidency in the Constitutional Convention.

James Madison spoke for the Convention when he declared that the executive powers are “confined and defined,” part of the carefully crafted design that enumerated powers, not merely to the legislature and the judiciary, but also to presidency. The unitary theory of the presidency does not remotely resemble the framers’ creation, but, indeed, represents contempt for every word, every syllable that they uttered when discussing the newly minted executive.

The unitary theory would clothe the president with all power conceivably executive in nature. It asserts that the president — a singular person — is the embodiment of the executive branch, that in this capacity he is everywhere, all at once, and that his power is inviolate, impervious to congressional regulation and not fully subject to review by the courts.

Beginning with its indefensible and pernicious ruling in Trump v. United States (2024), which conferred on the presidency sweeping immunity from prosecution to its recent rulings that broke from 90 years of precedents, to hold that the president possesses unenumerated powers to fire government officials without congressional approval and to bring prosecutions on behalf of the United States, the Court has facilitated President Trump’s agenda and his unprecedented use of executive orders to revise the character and shape of America’s legal and governmental structure.

The irony is that these six justices, firmly in control of the Court, profess to embrace the doctrine of original intention jurisprudence, which claims to interpret the Constitution in accord with the framers’ aims and purposes. But their assertions of the unitary executive theory cannot be squared with what was said and done in the Convention.

There was, in the Convention, no challenge to the definition of “executive power” advanced by James Madison, James Wilson and Roger Sherman. No delegate advanced an alternative understanding. Nor was there any argument about the scope of executive power. For the framers, as Wilson explained, “executive power” was limited “to executing the laws and appointing officers.” Sherman “considered the Executive as nothing more than an institution for carrying the will of the Legislature into effect.” Madison’s reminder that in a republic “the legislature necessarily predominates,” is lost on this the Court, eager to feed presidential power, oblivious to its hypocrisy. You can’t be both an Originalist and an advocate of the unitary executive.