How much power should the president of the United States have over his administration? There are two lines of thought on this issue, according to authors Stephen Skowronek, John A. Dearborn, and Desmond King in their book, “Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive” as reviewed by Stephen I. Vladeck in the November/December 2021 issue of Foreign Affairs.

The first line of thought is the “deep state”. It refers to the bureaucracy of the administrative branch. They’re the experts, advisors, and bureaucrats who are assigned to carry out the president’s wishes. The term “deep state” is not meant by the authors to be evil as portrayed by our previous president’s administration.

How much power should the expertise-driven bureaucracy have when it comes to putting checks on a sitting president? Should bureaucrats be able to act according to laws and traditions on everything from tax collection, meat inspection, vehicle safety, environmental protections to national security planning? Are these partisan or non-partisan issues?

Since the Great Depression, the size and scope of the power of the federal government over the lives of average Americans has increased dramatically. Executive branch power has grown to the point that it has “turned American government into a presidency centered government.”

The second line of thought is found among conservatives and is called the “unitary executive”. In this approach to governing, all power of the executive lies in the hands of the president. The ability to hire and fire administrators ensures the president’s decisions will be carried out.

Throughout modern American history since the Great Depression and FDR’s New Deal, there has been a tension between the two theories of governing. In the modern period, this diffusion of power is disappearing because of Supreme Court decisions, according to the authors.

The Constitution clearly states that “the executive Power shall be vested in a President of the United States.” The late conservative justice Antonin Scalia put it this way: “’This does not mean some of the executive power, but all of the executive power.’ In other words, executive power lies with the president and the president alone.”

This issue arose with Scalia’s lone dissenting voice in the 1988 Supreme court ruling in Morrison v. Olson. Out of this case came the holding that “Congress could protect ‘inferior’ executive -branch officers—in this case, the independent counsel [who were investigating senior government officials]—from being dismissed by the president without cause.”

In the 2020 ruling in Seila Law v. Consumer Financial Protection Bureau, the conservatively dominated court ruled that senior inferior officers are not protected from removal from office without cause “if they are the singular head of an independent agency, versus one of a number of commissioners in charge of an agency.” On the surface this seems reasonable, but not “if the whole point of independent agencies is their independence….” This ruling took a great deal of power away from Congress and put it in the hands of the president.

In 2021 Justice Amy Coney Barrett cast the deciding 5-4 vote in U.S. v. Arthrex. In this case, there are 200 patent judges in the U.S. Patent and Trademark Office who hear challenges to validity of granted patents. This case ruled that each of those judges is subject to dismissal by the president because no one supervises them. With this decision the power of a president increased dramatically, enough to fire a judge, whose job is to be independent.

Although Trump is no longer president, and will not likely ever be president again, the door to future chief executives being able to fire lower levels of government officials has now been increased. As the article concludes, “the presidency ends up being accountable to virtually no one…. We should expect future presidents will use it as such.”

In fact, the Biden administration fired the Trump-appointed commissioner of the Social Security Administration without cause, although the Democrats have not in the past supported the unitary execute theory. “If the unitary executive theory is ascendant, even Democrats want to reap the benefits.”

The solution to this increase in the power of the chief executive lies with the Court. As the authors stated, “…The United States is better off with tension between the Oval Office and its bureaucracy…. The United States may simply have to hope that the Court will respond differently in the future, in defense of checks on presidential authority, if the country elects another Trump, because the alternative—a president unbounded by either external or internal checks—would be worse.”