Name: The Legal Theory Behind Trump’s Plan to Consolidate Power
Uploaded: 2025-03-11T04:00:00Z
Duration: 7 min 1 s
Description: President Trump is using the popular conservative ideology known as the “unitary executive theory” to give more power to the executive branch. WSJ explains.

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President Trump is using the popular conservative ideology known as the “unitary executive theory” to give more power to the executive branch. WSJ explains. Photo: Roberto Schmidt / AFP

https://m.wsj.net/video/20250311/58539273-8a82-4977-af7c-99dd713d181f/2/hls/manifest-hd-wifi.m3u8

President Trump is using the popular conservative ideology known as the “unitary executive theory” to give more power to the executive branch. WSJ explains.

The Legal Theory Behind Trump’s Plan to Consolidate Power

Reporter: President Donald Trump is using a popular conservative legal theory to-

Restore that original vision of the presidency that the Constitution creates.

I have the right to do whatever I want as president.

Reporter: Like fire thousands of federal workers, dismantle entire agencies, and oversee what were created as independent regulatory agencies. The Supreme Court will be the deciding factor on this executive power reach that critics say-

Is far more extreme, but which would, I would argue, fundamentally change how the country runs.

Reporter: Here's the legal theory and the point of President Trump's executive actions, and why the Supreme Court might allow this expansion of executive power.

Show me what democracy looks like!

Reporter: The ideology is called the unitary executive theory. That Article II of the Constitution, which creates the president, puts all of the executive power in a single unitary president.

This is not new and it's not a theory. It's a description of what the Framers did in Article II.

Read Article II, which gives the president powers that you wouldn't believe.

Reporter: But there are still questions about just how much power, and over what. It's well-established in the Constitution that the president oversees these cabinet agencies. What's not as defined are independent agencies, things like the FTC, SEC, CFPB. Largely economic watchdog and regulatory agencies created by Congress and signed into law by the president, they were designed to be insulated from politics and changing administrations, but they're Trump's primary target.

Protesters: Stand up, fight back!

Reporter: In one executive order, President Trump brought these independent agencies under the executive branch.

Trump is arguing there should not be these independent agencies.

Reporter: Michael Waldman runs the Brennan Center at NYU Law and has written extensively about the dangers of the unitary executive theory.

It would undo a lot of what we rely on now to regulate the economy, to police the stock market, to assure competition in markets.

Reporter: That executive order cites Article II and the unitary executive theory that says that all employees are subject to the president's supervision. It's his justification for firing so far thousands of them.

He's trying to act horizontally, make all the heads of the federal executive agencies responsible to him, and then he's also trying to act vertically.

Reporter: John Yoo has long advocated for the theory. During the Bush administration, he argued in the "Torture Memos" that Article II gave the president executive authority to use enhanced interrogation techniques.

President Trump is saying, "Look back at that unitary executive theory." Why should all those hundreds of thousands employees be protected from removal too?

Reporter: And Trump has fired top officials at some of these independent agencies.

The Constitution is clear that when it comes to principal and governmental officials that the president appoints with the advice and consent of the Senate. So it's kind of a harder question, under what circumstances can Congress place restrictions on the president's ability to remove someone?

Reporter: It's a harder question, but not a new one. In the 1930s, President FDR fired William Humphrey, the head of the FTC, for political reasons. The Supreme Court ruled the Constitution did not give illimitable power of removal to the president, and the chairman could only be removed for cause.

What the Trump administration is likely to ask the Supreme Court to do, and there's a chance they will, is to overturn that case.

Reporter: Another in the 80s looked at the legality of a judicial independent counsel, and if they could be protected from presidential removal. The court said yes.

Fred: But there was one justice who thought that this was a core executive function, and that was Justice Scalia.

Scalia: The Constitution did not leave the president's powers at our mercy. It says that the executive power, not some executive power, shall be vested in a president of the United States, not a president of the United States and others.

And although he was the only justice in the dissent, that particular dissent has become kind of a rallying cry for people who have broader conceptions of executive power.

Reporter: Trump has also claimed that it's his right as the executive to stop payments that Congress has authorized, called impoundment, which goes against a 1970s law.

This disaster of a law is clearly unconstitutional, a blatant violation of the separation of powers.

It's an aggressive and novel conception of the unitary executive theory.

It is an audacious power grab cloaked in legalistic language, and it's gonna be up to the Supreme Court to stand up to it.

It's quite plausible that President Trump is intentionally creating a test case.

Reporter: Legal experts believe part of the point of Trump's exertion of this authority is to give the Supreme Court opportunities to overturn these precedents.

The Roberts Court in a way has been building this for 20 years.

Reporter: In a case five years ago about whether the president could remove the head of CFPB, the court found he could. Justice Thomas and Justice Gorsuch argued that the previous precedent protecting independent agencies is an unfortunate example of the Court's failure to apply the Constitution as written, and that those agencies encroach on the power of the executive.

If the Supreme Court agrees with the maximalist and extreme interpretation of the unitary executive theory in the cases that will be coming before it, it would upend much of the economy and really have us far closer to the control of a king than a president affected by the rule of law and checks and balances.

Reporter: So, if Congress passes policy and a budget for these agencies, can the president just not do it?

Suppose President Trump doesn't wanna spend the money Congress wants to spend, he doesn't wanna regulate what Congress wants to regulate. That is a kind of problem, I think, that the Founders' system doesn't have clear checks on, except for impeachment. They were quite clear that failure to execute the law would be a high crime and misdemeanor worthy of removal from office. If you see the president acting in aggressive ways, maybe it's 'cause Congress actually supports him.

The people elected me to do the job, and I'm doing it.

John: I would say we don't really have a true separation of powers fight here because this Congress supports President Trump.

A lot of this comes down to what should the role of government be in protecting consumers, protecting the environment and so on. Whatever other legal dimensions there are, this would likely make it so that much of the time these independent agencies would have their wings clipped by the executive branch.

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