One of the central facets of the unitary executive theory is that the executive branch of government should operate as a single, fully coordinated entity, with all decisions (major and minor) and all appointees (major and minor) reflecting the policies of the executive— e.g., the president, the sole person elected by a vote of all the voters across the country.
Many students of the Constitution believe such a view subverts the balance among the three branches of government and effectively reestablishes the monarchical government the Founding Fathers had fought to escape. Nonetheless, in its 2024 ruling in Trump v. US, the Supreme Court held that the president is not just a person—the president embodies an entire branch of government and is largely immune from accountability for conduct undertaken in the official role of president.
It’s impossible to know whether and to what degree the justices contemplated a president determined to test the outer boundaries of his power when that ruling was issued.
Nonetheless, it appears the Supreme Court and lower courts are unprepared to invoke their own Constitutional authority to decide—as Justice Marshall put it—”what the law is” and are continuing to permit the executive to have a free hand to remake the authority and staffing of the executive branch.
Agency Leaders Face Dismissal
Nowhere has the Trump administration’s efforts in this direction been so clear as in its dealings with the once “independent” executive agencies—the Equal Employment Opportunity Commission (EEOC), the Federal Trade Commission (FTC), the Consumer Financial Protection Bureau (CFPB), the Federal Communications Commission (FCC), the National Labor Relations Board (NLRB), and others. In contravention of both tradition and statute, the administration has systematically displaced and terminated—without cause—Democratic commissioners, directors, and members, all of whom do not share the administration’s policy positions.
In many instances, there’s no question of the president’s authority to take such action, e.g., with EEOC commissioners, with the NLRB General Counsel. In others, such as a member of the NLRB or Federal Reserve, the question has yet to be determined by the Supreme Court. But recent rulings by appellate courts and “signals” from the Supreme Court appear to indicate that the executive may soon be unitary and that independent agencies will become a thing of the past.
5th Circuit Finds NLRB Structure and Enforcement Unconstitutional
In a sweeping ruling, in SpaceX v. National Labor Relations Board, the majority of the 5th Circuit ruled that the structure of the NLRB likely violates the U.S. Constitution by insulating NLRB members and administrative law judges (ALJs) from presidential removal.
The NLRB, like many independent federal agencies, employs ALJs to adjudicate claims of violations of the National Labor Relations Act (NLRA) and issue decisions. However, unlike other federal agencies, the NLRB has five members to oversee and review the ALJ’s proceedings. Further, the NLRA establishes that Board members may only be removed by the president “for neglect of duty or malfeasance in office, but for no other cause.”
The Fifth Circuit strongly opined that the existing Supreme Court precedent protecting members from summary dismissal, Humphrey’s Executor v. U.S., doesn’t apply here, although that issue must be left to the Supreme Court. The appeals court then held that the “good cause” protections from removal that the ALJs enjoyed were unconstitutional.
Labor-Management Relations in Disarray; Agencies at Risk
The implications of the 5th Circuit’s ruling are enormous. Employers there—and elsewhere—will challenge the Board’s authority to enforce the statute with respect to unfair labor practices. Enforcement may simply grind to a halt. Even more significantly, all the formerly independent agencies face the prospect of being converted to “at-will” employees, whose tenure will rely on serving the president’s wishes.