THE QUIET WAR: CHECKS, BALANCES AND SEPARATED GOVERNMENT VS THE UNITARY PRESIDENCY

The nation, for those of us who are watching, is in the midst of yet another Olympian struggle between the advocates of a textualist interpretation of the constitution’s separated powers (to use a term favored by the late justice Antonin Scalia) and the re-emergent, manosphere-like notion of a muscular unitary presidency.  The contest is not new, it’s been going on for more than two centuries, but today one version, the unitary presidency, is being championed by the president and the political right with great vigor and uncompromising determination.

Advocates on the side of the unitary presidency argue that the constitution’s article II gives them broad exercise of that unitary power; opponents stress the critical importance of Article I’s articulation of checks and balances that grant all three branches of government equal power.  Separated powers were and are intended by the founders and contemporaries for the sole purpose of putting limits on the imprudent exercise of presidential power.  Cautious the founders were one might say, and the constitutional instrument that resulted from their deliberations patient indeed, waiting for some 240 years before that particular kind of greedy unitary president they were on guard against came along in the person of Mr. Trump.  You could say that Mr. Lincoln’s bookend predecessor and successor, Messers Buchanan and Johnson respectively, did give the congress some practice in trying but failing to dump a US president.

The debate between these two power centers has been tugging relentlessly at the nation’s stressed seams since the founding.   But large numbers of Americans, while rightfully concerned with the loss of critical benefits, seem either unaware or dismissive of the significance and potential consequences should the unitary presidency school of government become deeply rooted, unimpeded and unrestrained in its ability to impact in so many ways how we live our lives.

George Washington was the first to express a belief in a unitary presidency with significant authority over the execution of federal law.  Many years later the theory was strengthened by the administration of former president Richard Nixon.  The idea of the unitary presidency continued to gain traction under presidents Ronald Reagan and George W. Bush.  Enter President Trump and the latest chapter of this long-term, often enervating battle.  For the current years of Mr. Trump’s term a new highlight has been added, the input of a Supreme Court that has signaled it will seriously consider altering the governmental balance of a strong chief executive tempered by separated powers.  The Roberts Court has issued a series of rulings that have favored the unitary presidency: some have struck legal scholars dumb in their stark departure from Supreme Court norms, others have shown disdain if not contempt for the previously highly respected Stare Decisis or precedent, some rulings have been legally murky, and some have in a number of cases involving women’s rights and education implicitly introduced the profoundly troubling role of religion.

Over the course of the past half century the campaign for governmental dominance has surged from one side to the other.  In general terms, the side that won table stakes from winning a nationwide election in turn gained the opportunity to show off their political skills and throw its weight behind either a unitary presidency or keep wrestling with the hard work of separated government.  It can fairly be stated that the unitary presidency can get more accomplished more quickly than having to deal with the tangled and time-consuming business of passing legislation, famously (and correctly) characterized by Otto von Bismarck when he said “Laws are like making sausage.  It is better not to see them being made”.

But while a unitary presidency can achieve its political ends with less delay, fewer words, and little of the infighting of separated government, it also presents the risk of unchecked power, imposed ideological purity and trampling on the prized values of a diverse democracy, all features of early 2025 that we are saddened to live with day in and day out under this administration.  Not only are we seeing in real time the institutionalization of a unitary presidency under Mr. Trump, it is undergirded by staggering elements of cruelty, obsessiveness, and the slavish obedience of the president’s party in both chambers of the Congress.  This acute imbalance is ramping up the notion of the unitary presidency to new and untested levels.