Outside the Beltway

SCOTUS, the Unitary Executive “Theory,” and the Debilitation of the Modern State

Permanent damage appears to be coming (oh, and it enhances the authoritarian power of the presidency as well).

Steven L. Taylor · Tuesday, December 9, 2025 · 4 comments

Ihave argued that we are likely headed towards a government system wherein elections are held, but that most power is concentrated in the president, making each election essentially the selection of an authoritarian ruler for a four-year period (see here, for example). The Supreme Court of the United States continues to be the handmaiden of this change, and this week’s hearing about the ability of the President to fire members of independent agencies signals the further acceleration of movement in that direction.

The NYT reports: Justices Seem Ready to Give Trump More Power to Fire Independent Government Officials.

The Supreme Court on Monday appeared poised to make it easier for President Trump to fire independent government officials despite laws meant to insulate them from political pressure in what would be a major expansion of presidential power.

[…]

A decision in the president’s favor, they said, would call into question the constitutionality of job protections extended to leaders of more than two dozen other bipartisan commissions and boards. Congress intended to protect these agencies from partisan pressures and charged them with protecting consumers, workers and the environment.

In simple terms, if the Court does as it appears poised to do, it will radically reconfigure the way government works in the United States by basically making agencies designed to function as the result of rolling appointments of experts to slowly reflect evolving national politics/balancing partisan influence (a notion that is, I would note, inherently conservative, if we are to use the word’s actual meaning) to one that will allow a new president to make sweeping changes every four years. It will gut expertise and increase personalistic rule by a given president. It will also invite corruption and diminish basic governmental capacity.

If we need an illustration of what this means, consider the way in which Health and Human Services and the Center for Disease control has been turned into a playground for the ideological fever dreams of people like Robert F. Kennedy, Jr. and Mehmet Oz and how even if a new administration comes in and says that we are going back to “normal” on vaccines how hard accomplishing that goal will be.

Now, envision that dynamic for the whole of the administrative state.

There is a lot to unpack here, and I would send readers to Don Moynihan’s Substack post, At will? Whose will? as it comprehensively covers the topic.

I would note the following paragraphs that succinctly summarize what we are facing, emphasis mine.

The Court will endorse Trump’s practice of politicizing agencies, of valuing loyalty over competence. It also is one more step along the path of unitary executive theory, the radical idea that the Founders actually wanted a King and not a President. In the hearing on the Slaughter case, Justice Sotomayor noted that “Neither King, not parliament, not prime ministers ever had an unqualified removal power” but that is what unitary executive would grant.

[…]

And so, the judiciary will kill key parts of the working model of American governance, built up over time to adapt to the needs of the country, with no functional alternative beyond handing unprecedented power to an eager authoritarian.

He also provide the following list, which I concur with (emphases in the original).

The purging of employees is important for three reasons.

First, it will worsen state capacity, in both the short term as acquiescent hacks replace principled public servants, and in the long run as talented people decide that a workplace where they can be fired by ideologues is not for them.

Second, it gives lie to the claim that Trump officials made to justify politicization: they denounced a deep state engaged in bureaucratic resistance to legitimate presidential power. Such claims were based on one-sided anecdotes. It always seemed more likely that Trump officials were either blaming civil servants for not being willing to violate the law, or for their own managerial failures. This explanation seems much more plausible when we see why people are being fired.

Third, and most relevant for future debates about the civil service, there is a push to move to a completely at-will system, while also removing union protections from employees. And this is what I want to focus on.

There is much, much more in the post, which I recommend in full.

In terms of the authoritarian turn in American politics, I am less concerned that we are going to see some massive attempt at visible electoral fraud and, instead, see the utter erosion of the foundations of democratic governance, which takes into account the long-term evolution of goverment via the collective action of elected officials, and replaces its with a more personalistic power centered on the president.

I would add that the gerrymandering wars, and what I suspect will be the gutting of the meager Voting Rights Act protections against racial gerrymandering, will lead to the death of what meager competition exists for House seats. This will mean that only massive swings in general public opinion will have much chance of changing the hands of control of the House (more on this at some point in the future).

Couple that with the massive shifts to the global political order, specifically the fact that Europe can no longer trust the US’s leadership position and the willingness of the Trump administration to see the world in terms of great powers’ spheres of influence, and it is hard not to see the Trump administration as one of the most consequential in American history.

That statement is not, it should be clear, a compliment.