Do Not Confuse Unitary Executive Theory With Being Narcissistic, Corrupt, and Foolish

Imagine that you are the chief executive of a very large and diverse company that has not filed for bankruptcy multiple times. Assume that your goal is for the company to thrive, rather than for self-aggrandizement or self-entrenchment. How would you run it? If you established a committee to examine health problems at a major plant, would you appoint as its chair a new employee with only a BA in biology, whose most noteworthy past experience was practicing medicine without a license? If the company's CFO pointed out that a new initiative--say, reneging on agreements with your main suppliers--was having disastrous effects on earnings and depleting trust in the company, would you listen, or attack the CFO? When hiring, would you scrap your successful, stable, industry-standard set of hiring standards? If your company's largest divisions were headed by morons and desperately under-staffed with the upper management who might assist those morons, would you reorganize--or would you instead lavish praise on the morons, and assure shareholders and customers that it was no big deal? 

The answers to these questions are so obvious that you could even get a correct response from a law professor. Nor will it shock anyone, no matter their politics, that the Trump regime in the past couple of days has provided at least a hat-trick of wrong answers. Trump has declared his full confidence in Defense Secretary Pete Hegseth, who is obviously not competent to run his department and has fired or lost those who might help him. His State Department--and it must be said that this regime's approach all along has been to run State from the White House, while complying with Marco Rubio's apparently bottomless appetite for humiliation--is looking into eliminating the foreign service exam and replacing it with loyalty-based criteria that ignore any longer-term interest in having stability in foreign relations across administrations. And he continues to attack the chair of the Federal Reserve, with the result, if not the intent, of supplying visual learners with a precise chart of the level of confidence placed by the world in Jerome Powell versus Donald Trump:

And it's just Monday. [Okay, now it's Tuesday. The chart above now looks even worse and the regime's behavior on all of these issues has not gotten better. The challenge of this administration is that every day brings five new terrible choices and fifty new or newly revealed lies--for instance, Rubio's lie about a State Department overhaul--and its programmatic lack of transparency makes it difficult to track. Happily, its infighting and indiscipline, and the constant war over who can be closest to the throne, means it leaks like a sieve.]  

My point here is not to criticize Trump, at least not directly. (Of course he should be criticized for all these things, and for whatever he's done in the past week that we don't know about yet--not to mention the things it is harder to find out about, like whether Trump's cronies suggested to Warner Bros. Discovery that the best way to stay safe would be to emulate Jeff Bezos's Amazon and provide an in-kind bribe by paying a Trump family member. Although the two are inextricably intertwined, it is important, in the welter of regime actions that merely constitute terrible policy, not to forget the personal corruption.) Rather, it is to offer a reminder that none of this is synonymous with unitary executive theory. The two should be understood as different, although obviously closely related, matters.

It is absolutely true that the Trump regime has taken a broad view of unitary executive theory and pushed that position aggressively. (This Ross Douthat interview with Jack Goldsmith nicely lays things out.) And unitary executive theory has a lot to say about Congress's ability, had it the guts to do so, to rein in the regime's excesses. But once, under its auspices, the executive branch is viewed as operating top to bottom according to the president's design, this general architecture says virtually nothing about how the chief executive chooses to organize and manage his branch. The executive branch is a very large enterprise, with at least twice as many employees as Walmart, the largest private employer in the United States. Even (or perhaps especially) if one were to posit, wrongly, that Congress has nothing to say about how that branch is organized, the head of this unitary organization has no obligation to organize and manage it badly, to attempt to make every decision personally--or to make every decision personal, as this regime does. A decision to exalt personal loyalty over loyalty to the Constitution and over competence and experience; a decision to contract out key diplomatic jobs to a gormless real estate developer pal; a decision to let one's lieutenant in one's chief policy priority skip an actual chief of staff and rely on a close friend as de facto chief of staff: these and a hundred other choices are not necessary consequences of a belief in unitary executive theory. Rather, they represent Donald Trump's version of what it means to run any large enterprrise.

It's understandable that news articles and polemics often conflate the two. And it may well be that a unitary executive approach renders the executive branch especially susceptible to all these problems, especially in the absence of a backbone-possessing Congress and in light of the extent to which party politics, polarization, and an unserious legislative bench have laid waste to the hoped-for mechanics of Federalist No. 51. That concern should be taken seriously. Depending on one's interpretive methodology, these manifest problems may weaken the case for aggressive application of the theory. By weakening or eliminating many of the justifications for any presumption of regularity and constitutionality on the part of the executive, the executive branch's ongoing mismanagement certainly, in my view, counsels strongly in favor of more careful, forceful, stringent, and skeptical judicial scrutiny of this executive branch. But the mismanagement is not the same as the theory.

I'm not arguing for or against the theory. But perhaps those who do advocate for a unitary executive should turn their thoughts more closely, and their writing more explicitly, to the question of what sound administration should look like under a unitary executive, and what ethical and oath-driven principles should guide it. Perhaps the needed work right now is not in offering further historical detail on why the president may fire his subordinates, and more practical analysis, legal and otherwise, about why he is not obliged to, and should try to keep the smart ones and cut down on the morons instead of championing them. They might also offer more work on why the notion that the president possesses the full share of Article II power says nothing about whether any personal loyalty is owed to him by those subordinates. (It is not.)

Whatever the answers to these questions are, they certainly won't look anything like what we are living through. No executive of even marginal competence would run any large enterprise like this. The lawyers may supply the theory; but at every step of the way, albeit with a great deal of help, Trump is supplying the disastrous practice.

In all of this, there is one irony that under other circumstances would be delicious. It's not unfamiliar, since it helps define the difference between the first Trump administration and the present regime. It is this: As bad as things are, the reason they are not worse on a day-to-day basis is the presence of those long-serving, dutiful professional federal employees who have not yet been fired or forced out. Once again--this time over fierce resistance--Trump's best hope for avoiding the consequences of his own unfitness for office is the "Deep State."