ELSA IANNOTTA—Peter Shane began his lecture by examining the unitary executive theory: the belief that Article II guarantees presidential control over the discretionary functions of the executive branch. Interpretations of the scope of presidential power vary widely, some argue the President controls officers who assist in executive functions, others claim the President can dictate how discretionary powers are exercised, and the most extreme positions would grant the President personal authority to execute the laws, making agency heads reliant on the President’s approval.
President Trump embraces the extreme view, insisting Article II lets him “do whatever I want.” The President’s lawyers rely on dicta from the Roberts Court that characterizes the constitutional presidency as uniquely powerful and claim this view is rooted in history. For example, in Trump v. Mazars, the Roberts Court described the President as the only individual constituting an entire branch of government; in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court emphasized that executive officers act on the President’s authority, accountable to voters; and in Trump v. United States, the Court asserted that certain presidential actions are beyond congressional or judicial reach.
Shane identifies three flaws in this narrative: it mangles the constitutional text, distorts history, and disregards institutional dangers.
Mangles the Text
Shane asserts that the best reading of the Constitution, in 1789 and today, is that the President leads the executive branch while Congress determines how laws are executed by creating departments and assigning duties. The Take Care Clause tasks the President with a duty to ensure faithful execution of the law and authorizes the President to require reports from department heads. Congress decides how inferior officers are appointed, whether by the President, department heads, or the courts.
Justice Scalia’s dissent in Morrison v. Olson argued that the Article II Vesting Clause grants the President “all” executive power. Shane, drawing on Victoria Nourse, characterizes this as “pragmatic enrichment”—an interpretation that fills textual gaps rather than deriving meaning from the text itself. Yet the Vesting Clause states only that “[t]he executive power shall be vested in a President of the United States.” Shane notes that the Framers clearly knew how to use the term “all,” as demonstrated by Article I’s Vesting Clause, which provides that “All legislative powers herein granted . . . . ” The Framers’ choice to include “all” in Article I but omit it from Article II suggests they did not intend to confer complete executive authority on the President.
Shane asserts that the Roberts Court is either non-originalist or phony originalist. Ordinary, plain-meaning originalism gives the Constitution the meaning it would have conveyed to a reasonable person in the era of its founding. Shane finds it unlikely that a reasonable ratifier in 1789 would have read Article II as granting the President full removal power or the authority to execute the law personally. The Vesting Clause simply grants power; it does not imply exclusivity or immunity from regulation. The Take Care Clause articulates a duty not to suspend the law rather than a grant of power. The Opinions Clause suggests distance between the President and department heads, as the power to demand written reports implies the President lacks absolute control.
Flouts History
To understand the Framers’ view of executive power in 1789, Shane cites The Federalist Papers, where Alexander Hamilton argued the President lacked unilateral authority to remove officials appointed with Senate approval. Shane interprets this as evidence against comprehensive presidential removal power despite Hamilton’s later change in position. Shane also notes that the First Congress articulated four different positions without shedding light on which view prevailed: (1) removal only by impeachment, (2) removal tied to appointment power, (3) presidential removal subject to congressional approval, and (4) Article II grants the President plenary removal power.
In Seila Law v. Consumer Financial Protection Bureau, the Roberts Court claimed the Framers made the President “the most democratic and politically accountable official in Government.” Shane responds that the President was in fact insulated from voters at the Founding. The legislature chose the electors, the electors chose the President, and only the House of Representatives was directly accountable to the people.
Ignores the Institutional Dangers
Although government agencies are rooted in the nation’s history, the Roberts Court is increasingly questioning their constitutional foundations. Shane points out that the Trump administration is seeking to overturn Humphrey’s Executor—the landmark 1935 case that allows Congress to limit the President’s removal power over multi-member agency heads to only “for cause.” President Trump tested the scope of his power by firing independent principal officers from the Merit Systems Protection Board and the National Labor Relations Board. While district courts initially blocked these firings as unlawful under statute, the Supreme Court lifted the injunctions on emergency review, allowing the removals to proceed temporarily.
Adjudication Amid Ambiguity
Shane criticizes the Supreme Court not only for its analytic flaws but also for its hubris. He contrasts Humphrey’s Executor, where an ideologically divided Court upheld Congress’s authority to create independent agencies, with the Roberts Court, which appears poised to limit Congress’s power to regulate the executive based on a highly debatable reading of history. This contrast highlights a broader question: even if the 1789 ratifiers had a clear understanding of George Washington’s relationship to the federal bureaucracy, should we follow it in 2025?
Shane notes that political partisanship was nascent in 1789, the federal government’s reach was limited, and the federal establishment was far smaller than modern cabinet departments. Considering these major differences, he recommends interpreting the Constitution by identifying which originalist principles remain relevant and applying them to contemporary needs, emphasizing efficiency, accountability, adherence to the rule of law, and public integrity.
A key challenge for the administrative state is balancing executive vigor with the risk of authoritarianism and enhancing accountability without causing paralysis. Shane argues that, at least out of respect for stare decisis, the Roberts Court should reject extreme unitary executive claims and uphold a presidency that is powerful yet accountable rather than one that can act without limits.
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