Joshua and Larry's recent post, Insubordination and Impeachment, offered some reasons we "should be thankful for this bout of intermittent insubordination" where executive branch officials ignore or defy the Presiden'ts apparent wishes.  In their post, they flagged Jack Goldsmith's post, "Our Non-Unitary Executive," which observed that “What is most remarkable is the extent to which his senior officials act as if Trump were not the chief executive.  Never has a president been so regularly ignored or contradicted by his own officials.”

As Jack, Larry, and Joshua all observe, this administration has provided numerous examples of how the executive branch is not truly “unitary” as some theories maintain (and as some members of the current Court have suggested). In the entry ban litigation, State Department employees disputed the administration’s claim that nationality could be used as a proxy for risk to the United States; the former Secretary of State and UN Ambassador have disputed some of the President’s foreign policy claims; and there are other examples as well.  More recently, some State Department employees have allegedly challenged the President’s efforts to drum up a justification for THE WALL and his revisions to asylum laws.

As Representative Adam Schiff noted (on Twitter), “Secretary Pompeo disputed his own State Department’s conclusion there is “no credible evidence” showing terrorists trying to enter through Southern border.”

This is notable not just for what it says about the unitary executive constitutional theory, which maintains that everyone in the executive branch is acting as an arm of the President.  Under the unitary executive theory, when Congress attempts to create some separation between the bureaucracy and the President (such as by insulating officers from Presidential removal), Congress violates Article II, which requires the executive to be unitary.  The Court has occasionally embraced that theory; and the recently confirmed Justice Kavanaugh is an avid proponent of it. (Justice Scalia relied on this theory to argue that the former Independent Counsel statute is unconstitutional, and some have (mistakenly) invoked the theory to argue that Special Counsel Robert Mueller’s investigation is unconstitutional, even though the Special Counsel was appointed by an officer who is removable at will by the President.)

The decidedly non-unitary practice of this administration is also notable because the Court appeared to celebrate it on one occasion, even though it has generally done the opposite. In Trump v. Hawaii, the Court distanced itself from the unitary-executive theory, at least partially.  The Court explained that in evaluating whether the President’s challenged order (the third entry ban) was lawful, “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”

According to the Court, the authority of the Presidency included other institutions tied to the office, but not acting in concert with it.  In particular, the Court explained “The Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.” Importantly, that process deviated from, changed, and pushed back on the President’s initial plans--adding some countries, while taking others off.  And according to the Court, that contributed to, rather than detracted from, the legitimacy of the order and the constitutional basis for it. 

There will be many occasions when this Court will be called upon to assess the scope of executive power, and whether the Constitution requires a unitary executive such that Congress cannot insulate some officers from Presidential removal.  It may be called upon to do so in the context of the Mueller investigation, or in adjudicating whether the current structure of the Consumer Financial Protection Bureau is constitutional. (Then-Judge Kavanaugh has said it is not. I wrote a series of posts related to that decision here, here, and here.) 

When the Court does address the scope of executive power, it should remember the time when it had faith in the bureaucracy, and when it pointed to the bureaucracy's seeming independence as a source of constitutional legitimacy, rather than a mark against it.

@LeahLitman 

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