Saturday, July 12, 2025
How Should the “Only Nationally Elected Official” Behave?
As has been the case all year–and indeed is generally the case–most of the interesting developments in constitutional law in the last few weeks, especially those involving separation of powers and unitary executive “theory,” have had little or nothing to do with the Supreme Court. Even in corners where people discuss these things, most of the interesting and pressing questions about unitary executive “theory” simply haven’t happened. I put quotes around “theory” not to reject the concept or the outlines of the argument as a textual or logical matter, but because there is so little of it. Most of the discussion seems to me to be focused on historical justifications for a unitary executive, and on questions of power–always everyone’s favorite topic and generally a tedious one. But much less has been said about the broader implications that a theory might supply. In particular, the discussions rarely dig into the essential concomitant to power: the moral, ethical, political, and philosophical duties and obligations that must accompany that power. This is unsurprising on Donald Trump’s part–he is not a knowledgeable or reflective man, and what little reflection he engages in doesn’t run toward questions of moral duty–but a failing on the part of others. (Any statement so broad invites the usual “honorable exceptions” boilerplate, which applies here, viz. Thomas Crocker and Alan Rozenshtein. I surely have missed others. But, having gone looking for such discussions, I stand by the general statement.)
Here’s one case in point from the past week. Virtually the entire theory of this regime, such as it is, has been summed up by Stephen Miller, one of about a half dozen people effectively serving as acting President. (Which is not at all to say that Trump does nothing. We know, for example, that he likes tariffs, bribery, and revenge. And he has some thoughts about Cats, interior decoration, and the Baseball Hall of Fame. But the Trumpian cult of personality and media presence should not obscure the fact that a good deal of the time, Trump is far from the most active or influential member of the Trump regime. More on this anon.) As Miller says, “A president is elected by the whole American people. He’s the only official in the entire government that is elected by the entire nation….The whole will of democracy is imbued into the elected president.” He ties this to unitary executive theory on the view that since he is the one elected official, his Article II powers must be within his control.
I have no special objection to this, allowing for its imprecision, whether I ultimately agree with it or not. Of course, the pseudo-corollary positions the regime also takes–that there is only one “will of democracy” that belongs to the largest voting unit; citizens don’t or can’t have varied views, some of them in tension, that seek expression through votes for different offices; that those offices are in some sense subordinate rather than coordinate; and that elected representatives who do not fall in line with the president’s desires are somehow acting improperly–are bunk. But I’m not concerned with that here. (This president also appears to believe–like most modern presidents but way more so, as is customary with him–that he has a “mandate,” although mandates are as mythical and elusive as chupacabras. The fact that presidents are so gripped by this delusion, and have so many enablers-at-large in this, provides one more occasion to marvel at the extent to which American culture and history are just one long, sublimated urge for monarchy.)
It is characteristic that Miller’s focus here is on power. And it’s not just characteristic of Miller. Academics have suffered through a good decade or so (not to speak of the decades before that) of workshop talk reducing everything to questions of power (and treating the point as insightful). This usually comes from the left but is hardly exclusive to it. Indeed, a great deal of the thinking of the current right, as opposed to that of actual conservatives, is essentially ersatz leftish theory with a bit of theocracy, a Frank Frazetta drawing or two, and some outré takes on history and anthropology sprinkled on top.
But it would be more interesting and worthwhile to ask: If that’s your basic theory, what obligations, as opposed to powers, does it entail? Beyond the usual, trivial “If the people don’t like it, they can vote” argument, what internal constraint or conception of duty should guide the unitary executive–as well as his constitutional-oath-bound subordinates, state and federal officers outside the federal executive branch, and the people, who have a duty to monitor and judge the actions of the executive? What would the behavior of a president be if he acted more or less in accord with Miller’s description of the president as representing and serving all the people–as opposed to, say, a view that he is obligated only to those who support him, or only those who “won”; or that he is not so much the people’s representative as a Dear Leader-ish cult-of-personality figure, blessed by the occasional election, whose will is precedent in importance and authority to that of the people; or that he has been given power, not constrained much (if at all) by moral duty, to dispense or withhold favor to those he considers either good Americans or enemies?
Trump’s words and actions suggest that he falls on the right side of that hyphen, despite justificatory verbiage like Miller’s. And this week’s prominent example involves disaster relief. As is almost invariably the case–see, for example, the aptly named DOJ Weaponization Working Group, whose mission is to centralize and supersize the use of law as a tool to punish personal and political enemies–Trump’s goals are always best understood by assuming that what he criticizes in others is exactly what he plans to do. In this case, last year Trump accused President Biden of letting politics affect disaster relief last year in North Carolina. And so we could have guessed that he would take office with the goal of making disaster relief even more sectional and political.
Which he did. As this story notes, the administration has taken a starkly different approach to disaster relief in California, a state with which he is at barely undeclared war, than it is now in Texas. (The justifications offered by the administration–not counting those offered by Caroline Leavitt, for obvious reasons–must be viewed with skepticism. They should be evaluated skeptically in light of a longer pattern of Trumpian planning for targeted federal hostility to California, as well as his singling out of what he considers enemy cities with respect to illegal immigration while saying little about cities, like Houston and Charlotte, with equally significant populations. It’s striking that Trump, whose ego and conception of the presidency both depend on the notion that he was chosen by the whole people, is so clearly, often explicitly, at war with vast swaths of the American people.)
Trump’s plan to shutter FEMA appears to be undergoing revision, both because he has discovered that Texas has weather and because Trump mostly has impulses, not policies. But I doubt that one element of his general plan will change: his desire to have disaster relief funds distributed directly from the White House. As virtually every decision in the last six months indicates, this is hardly about ensuring that Americans, no matter where, receive the same level (or lack thereof) of federal disaster relief. It’s about treating it as a political tool, a political weapon, and a form of lordly, personalist-authoritarian favor, handing out such relief where and how he pleases while insisting that the knee be bent and the Nobel nominations be kept handy.
I raise this example–a prominent one but, of course, only one of many–not to suggest that it refutes unitary executive theory, but to suggest that this, far more than questions such as who fired whom in 1807, is the kind of thing those interested in the unitary executive should be asking about. It raises the kinds of questions–about what obligations and duties should guide and constrain a unitary or powerful executive, and what implications the nationally-elected status of the president have for how he governs and how he may not govern–that demand urgent attention. In particular, they demand urgent attention from those who advocate and accept the premises of the unitary executive.
Posted by Paul Horwitz on July 12, 2025 at 10:34 AM in Paul Horwitz | Permalink
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