The One Man Gang vs. The Unitary Executive

A gangster does not need to understand how businesses work. He only needs to know how to threaten businesses into doing what he wants in order to reap the profits of their resourcefulness and efficiency. If a gangster finds himself at the head of a government, he does not need to understand how government works, if he views government merely as an instrument for implementing threats. It would be a mistake to look for any coherent plan or policy agenda in a mind that is aggressively ignorant and clearly does not understand basic things about the workings of the national economy, international trade, or government agencies. A more fruitful use of intellectual effort would be to examine how the United States arrived at a position that it should consider a palpably ignorant, malignant narcissist as the lesser evil in a presidential election. The shamelessly illegal actions of the current president require no deeper analysis than those of a toddler with no impulse control and no understanding or care about the consequences of his actions on others. The fact that millions of constituents are unaware of this illegality attests to a deficiency of civic education, but even more educated people may be misled by some vague understanding of so-called “unitary executive” theory. As we shall see, the legally defensible versions of this theory fall well short of the near-absolute monarchism espoused by the incumbent president, not out of any theory, but out of sheer ignorance and an insatiable demand for obedient, unquestioning loyalty.

Reviewing some of the controlling precedents, we might begin with U.S. v. Perkins, 116 U.S. 483 (1886), in which a unanimous Supreme Court affirmed “that when Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest.” This applied only to such officers that were appointed by heads of departments, since those heads had no right of appointment independent of Congress.

The President, by contrast, does have appointment power independent of Congress. In Myers v. United States, 272 U.S. 52 (1926), a 6-3 majority ruled it was unconstitutional for Congress to give the Senate “advice and consent” removal power of postmasters, who by statute were appointed by the President. The president in general has appointment and removal power over executive branch officials, except where constitutionally limited. Article II’s statement, “the Executive power shall be vested in a President,” is a granting of power, not just the naming of a department. The President has full power over the executive branch except where constitutionally limited.

The Constitution places limits on the President’s appointment power. “Principal officers” must be confirmed by the Senate. “Congress may by law vest the appointment of such inferior officers as they may think proper in the President alone, in the courts of law or in the heads of departments.” This does not enable Congress to limit the President’s removal power of such officers that he may appoint, nor does it allow Congress to grant itself any share in the power of removal of executive officers, e.g., by the “advice and consent” of the Senate. Nonetheless, whether Congress can “condition the [President’s power of removal] by fixing a definite term and precluding a removal except for cause will depend upon the character of the office.”

This strong view of the president’s removal authority was far from absolute, as it applied only to presidential appointments and did not prevent Congress from statutorily limiting this power to removal for cause for at least some fixed-term offices. Even this much was opposed by reasoned dissents by Justices Holmes and Brandeis, who argued for much more limited removal power.

A fair interpretation of Myers is that federal executive power is completely in the President, with these constitutional exceptions: appointments of officers, treaties, declaration of war and letters of marque and reprisal.

In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), a unanimous opinion given by Chief Justice Sutherland held it was constitutional for Congress to limit by statute the President’s power to remove officials of the Federal Trade Commission, so they could only be removed for inefficiency, neglect of duty, or malfeasance. This was because their functions are of quasi-legislative and quasi-judicial quality, not executive.

Officers of the United States are distinct from mere employees of the United States. The latter have no federal executive power by which they may compel anyone to do anything. Buckley v Valeo, 424 U.S. 1 (1976) defined that any appointee exercising “significant authority” pursuant to the laws of the United States is an ‘Officer of the United States.’ Non-officer civil service employees may, no less than private sector employees, have legal protections from termination or remedy for wrongful termination, and may have additional protections by statute. By current law, they can be terminated by heads of agencies or their subordinates, not by the President nor by Rasputin, and even then only for cause or for reduction of workforce, under strict criteria depending on status.

In Bowsher v Synar, 478 U.S. 714 (1986), a 7-2 majority ruled that Congress cannot give itself the power of removal, except by impeachment, of an executive officer. Such removal power would make that officer an agent of Congress, in which case he cannot control how laws are executed, a power that is denied to Congress.

In Morrison v Olson, 487 U.S. 654 (1988), a 7-1 Court (with Justice Scalia dissenting) held that the Ethics in Government Act of 1978 did not violate the separation of powers by establishing an “independent counsel,” since this office did not impermissibly interfere with the functions of the executive branch. This was an “inferior officer,” since she could be removed by the Attorney General, though she could act independently of him. She had investigative and prosecutorial powers, but could not formulate policy for the Government or Executive Branch.

This official was appointed by a specially created court; there was nothing incongruous about this, since courts sometimes appoint private attorneys to act as prosecutor for judicial contempt judgments. Consistent with Bowsher, the removal power is kept in the executive branch, by action of Attorney General, and only for good cause. No congressional approval is required for removal, though it is subject to judicial review. This is analogous to Humphrey’s Executor.

Yet the Court in Morrison reinterprets Humphrey’s Executor, finding the ruling depended not so much on categorizing an office as quasi-legislative or quasi-judicial, but rather that “it was not essential to the President’s proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will.” Analysis of functions is relevant only to determine whether they impede President’s ability to perform his constitutional duty (execution of the laws). Even though the independent counsel is “executive” as a prosecutor, she has limited jurisdiction, tenure, and no policymaking authority. The “good cause” removal condition does not burden the President in the execution of his Article II powers, for it allows counsel to be terminated for failing to faithfully execute the the laws.

Justice Scalia in his dissent argued that Article II intends to vest all the executive power in the President, but such an argument must reckon with (1) the written Constitution itself, which expressly grants some executive powers to the other branches, e.g. Congress’s power to declare war, and (2) the prior conceptions of the Framers, many of whom, believing in limited government, clearly did not intend for the executive power of a republic to be coextensive with that of an absolute monarch. Thus, the scope of Scalia’s “all,” if it is not to be problematic by his own originalist standards, should be confined to whatever executive power is possessed by the federal government, which is constrained by the Constitution and by legislation, insofar as faithful execution of the laws must have reference to law. Unitary executive theory would simply mean at most that whatever executive power exists in the federal goverment, save for enumerated exceptions, must be vested in the President. Any construction that granted the President any conceivably “executive” power whatsoever would be scarcely distinguishable from non-republican monarchies.

More recently, in Seila Law LLC v Consumer Financial Protection Bureau, 591 U.S. __ (2020), the Court held that Humphrey’s Executor was not applicable to the CFPB, which had overtly executive powers including the issuance binding decisions in administrative proceedings. “Unlike traditional independent agencies headed by multimember boards or commissions, the CFPB is led by a single Director, [12 U.S.C.] §5491(b)(1), who is appointed by the President with the advice and consent of the Senate, §5491(b)(2), for a five-year term, during which the President may remove the Director only for ‘inefficiency, neglect of duty, or malfeasance in office’…” The only other independent agencies with single directors, such as the Social Security Administrator, were recently established and had their protection from removal contested, so they hardly served as a historical precedent. Arguably, concentrating power in a single unelected individual not subject to removal is contrary to Constitutional design. The removal protection of the CFPB Director was held to be unconstitutional, but this was severable from other provisions establishing CFPB and its authority, which were allowed to stand.

It may be noted that all the cited precedents on unitary executive theory have to do with the appointment and removal powers, and the extent to which these may be limited, even to the President. Were it not for the Appointments Clause, it would be unquestionable that the president could appoint or remove any officer of the United States in the executive branch. The Constitution does not have a pure separation of powers, and the exceptions are numerous and often deliberate, either as a negotiated compromise or a principled attempt to impose checks and balances. Apart from these exceptions, however, we should forcefully assert, as did Scalia, the separation of powers, which the Framers regarded as the safeguard against tyranny, making possible a government of laws rather than men. The basic thought behind unitary executive theory is that there should be no official or group of officials with federal executive power who are not accountable to the only elected executive, namely the President, in whom all federal executive power (save the Constitutional exceptions involving other branches) resides. (We exclude the Vice President, who, though elected, has no defined executive powers, and his only constitutionally prescribed function is legislative, another exception to the separation of powers.) Even the most strenuous version of this theory could credibly hold, at most, that the President has power of removal of all officers in the executive branch whatsoever, with or without cause.

None of this has anything to do with using “executive orders” to create, revise or abrogate the law. Nor to impound congressional appropriations. Nor to shut down Congressionally created agencies or strip them of personnel and facilities to the point that they are unable to perform their Congressionally prescribed functions. All executive power is to be in the service of the law by faithfully executing it. But faith of any kind is a foreign concept to the current executive.

Mendacity as Legal Practice

Despite common stereotypes of dishonest lawyers, in fact members of the bar ordinarily hold themselves to high standards of honesty when speaking in court, even while they vigorously advocate for their client’s position. Willfully lying to a judge is punishable criminally and can lead to disbarment. This makes it all the more exceptional that the Trump Justice Department is willing to be so shamelessly mendacious on repeated occasions. In some cases, its trampling of established norms provide a legal advantage, exploiting a system that depends on acceptance of basic rules of conduct.

I noted last time that the NIH directive on indirect rates looked like it was written by policy illiterates, and indeed it was written by DOGE and imposed on NIH with a one-hour time limit to post. Yet counsel for NIH shamelessly asserted in court that this was a rational action by NIH. This repeats a pattern where the government just finds out what’s a legal reason to justify an action, and asserts that reason pretextually. Such pretext is found in the NIH notice itself, and in blatantly disingenuous defenses of mass firings for “performance,” which quite obviously had no other basis than “fire whoever we can.”

The USAID-related civil suits, AIDS Vaccine Advocacy Coalition v. U.S. Department of State and Global Health Council v. Donald J. Trump, demonstrate such mendacity to the point of outright defiance of court orders. Despite the imposition of a temporary restraining order (TRO) on February 13, the administration took no action to unfreeze payments. Set aside, if you can, that the payments frozen supported shelters for minors escaping recruitment into gangs in Central America, medical services for youth in Bangladesh, time-sensitive antimalaria campaigns, HIV prevention medication and clinical trials in Africa. Set aside, if you can, the sheer immorality of wanting to freeze such payments, even for work already completed and contractually obligated. Consider now the shifting reasons the government offered for failing to comply with the TRO. First, they could not even identify whether any actions had been taken, upon which the judge ordered compliance by 11:59 pm on Feb 26. Instead, on Feb 26, the government represented that it was technically impossible to comply, and that at any rate no funds were owed any longer, since the general freeze had been replaced by an individual review of all USAID contracts, and these had been duly terminated. Even if one wishes to believe it possible that such a review of thousands of contracts was conducted in good faith in such a short time, it would not absolve the government from owing payment for work through Feb 13, at the least, or Feb 26 at the latest. The government is rather brazenly defying the TRO, trying to render it null retroactively through a thoroughly pretextual assertion. The lie is so transparent, one should hardly believe anything that ever comes from a Trump lawyer’s mouth – I do not say Justice Department lawyer, for the D.C. U.S. Attorney correctly described his office as “President Trump’s lawyers,” their independence being a quaint memory. The fact that they are willing to go to such dishonest lengths just to stiff their contractors, without even the decency to honor payments for work to date, shows they are beneath the most basic form of morality necessary to any civilization, the ability to keep one’s word, or even to recognize this an obligation in principle.

In another case on the USAID shutdown, the government was rewarded for its mendacity. U.S. District Judge Carl Nichols wrote that he could only rule on employment claims, since the USAID was technically “still standing.” Even here he could not give injunctive relief: “Where one side claims that USAID’s operations are essential to human flourishing and the other side claims they are presently at odds with it, it is simply not possible for the court to conclude, as a matter of law or equity, that the public interest favors or disfavors an injunction.” Because the Trump administration was willing to lie shamelessly about some nefarious secret purpose behind USAID, that muddied the waters, offsetting the claim that shutting it down would be harmful.

The entire motivation behind the USAID shutdown is that Elon Musk credulously accepts the conspiracy theory proffered by Mike Benz for years without evidence, namely that USAID is a front for CIA operations and evil left-wing propaganda. The ultimate disproof is that Elon’s team was unable to find any true fraud or abuse, only programs with ideological or policy aims he didn’t like, and even these overlapped with tangible social and medical benefits. Actual fraud would be a prosecutable crime, and it’s inexplicable that Trumps’ lawyers would decline to prosecute this.

That Donald Trump can accept such fantasy uncritically suggests mediocre intelligence and negligible curiosity. The aggression with which he has always sought to cheat and defraud his contractors exhibits low moral character. With Musk, we have a man of high intelligence, yet no social maturity, and an astonishing near-total ignorance of how government works, or even how personnel management works (or scientific research, or endowments, etc.).

What shall we say about the cowardice of their enablers, who see through these lies as easily as we, yet pretend otherwise? For lawyers, officers of the court, this is a betrayal of their vocation, especially when such deceit as in the service of those who spurn the role of law. The politicians, especially those who call themselves Christians, have committed an even deeper betrayal.

Government by Confiscation

The NIH’s notice to unilaterally revise indirect cost rates on grants to 15% reads as though it were written by someone who barely understands what indirect costs are and how they are computed, which suggests it was imposed on them from without, as are many agency policies throughout the federal government. While it is unquestionable that the presidency sets policy throughout the executive branch, there is a reason why we rely on knowledgeable professionals in the civil service to advise on such policy. Moreover, the setting of policy cannot contravene federal laws, regulations, Congressional appropriation, case law, and most fundamentally, the obligation of contracts.

The notice in question relies on a specious, unprecedented reading of federal regulations (2 C.F.R. 200.414) that would give any agency the right to unilaterally ignore the federally-negotiated indirect cost rate agreement, which legally binds the federal government, and replace it with a de minimis rate, effectively defrauding institutions of reimbursement of real costs per the terms and conditions of existing contracts. The agency even claims that they would have the right to apply such a reduction retroactively to the beginning of an existing award, and reclaim indirect costs already paid in previous years. Quite apart from its illegality on multiple fronts, the mere pretense of having such a right is to claim to be beneath the most basic principles of honesty and integrity in abiding by one’s word, which a contract is supposed to formalize.

Such thorough dishonesty has long been a hallmark of Donald Trump’s business practices. Stiffing his contractors and subcontractors, even in violation of signed agreements, as a mere negotiating tactic to strong-arm weaker parties into accepting pennies on the dollar, is well-documented in Trump’s business career, via numerous legal disputes. A most thorough exposé of his amoral practices was given by his long-time fixer, Michael Cohen, in the book Disloyal. No one should be shocked by its contents, as it well accords with the public persona of Trump, which people excuse because they agree with him on one or another issue, thinking they are using him when they are the ones being used.

Having decades of experience in this domain, I am well positioned to appreciate how thoroughly ignorant Elon Musk and others in the Trump administration are in this matter, when they characterize indirect costs as some kind of surcharge by which universities rip off the federal government. In fact, indirect cost, which is to say the added cost of administration and facilities that is attributable to supporting research, is painstakingly audited every one to three years by the negotiating agency (DHHS or the Office of Naval Research). In fact, even the negotiated rate, often around 55%-65% of direct costs for universities (with certain excluded categories), and higher for hospitals, does not cover the full real cost of supporting federally-sponsored research. Large institutions cover the difference with internal funds. They can accept lower indirect rates from non-profit foundations (a small fraction of most research portfolios) only by cost-sharing with internal funds, so most institutions require investigators to provide such sources themselves. The actual indirect cost recovery rate ends up averaging 40% of directs or less, so a large institution may already be subsidizing federally-funded research on the order of $100M/yr or more.

A reduction to 15% would require a level of cost sharing that would be unbearable for many small to mid-size institutions, forcing them to refuse NIH funding. If the intent is to punish big universities, it will actually hurt small institutions more, but Trump has never truly cared about small businesses, as his own business practices prove. Elon suggests universities should use their endowments, proving he has no idea how endowments work. You can only spend the revenue, not the assets, or it’s not a true endowment. The revenue in most cases (2%-4% of assets depending on market) is already obligated to pay for the salaries of faculty beyond the NIH salary cap (reduced in 2012 and returned to that level only in 2022). Again, this “solution” would not help small institutions, but there is no evidence Musk cares about the consequences of his supposed “efficiency,” which should mean doing more with less, not less with less. Moreover, since 2008, NIH alone among federal agencies has refused to pay inflationary 3% increases, at first as a crisis measure, and now as a permanent fiction that inflation does not exist.

Indirect costs are so named because they cannot be directly attributed to a particular grant, but they are directly attributable to research operations as a whole. Federally-funded projects require added space, utilities and infrastructure, especially IT. They also require considerable administrative effort to maintain audit compliance for all transactions and reports. Ironically, NIH imposes more administrative burden on recipients than any other federal agency, yet they would illegally demand that this administrative work be uncompensated. It is already inadequately compensated. Since a cap of 26% of direct costs was imposed in 1991 on the administrative portion of indirect cost rates, real administrative burden has increased over the decades due to dozens of new regulatory changes, so the real cost of research administration is closer to 30%-35%. These are not mere secretaries or clerks. They are more like bookkeepers who must also have vast regulatory knowledge to ensure proposals, reports, and finances are all compliant. Grant administration is notoriously understaffed and overworked; draconian cuts will mean layoffs, worsening the problem possibly to the point of dysfunction. Small businesses actually tend to have higher negotiated rates, since they lack the efficiencies of scale that large universities have.

An intelligent examination of indirect cost rates might consider reducing the facilities portion and increasing the administration portion, since universities might be reasonably expected to shoulder more of their facilities costs, and the current model with capped administrative expenses may create perverse incentives to overbuild infrastructure (though this is speculative). NIH very recently recognized that recipients are undercompensated for administrative costs, by increasing the indirect cost base on subcontracts from $25,000 to $50,000. Its sudden new claim that universities are overcharging is a willful lie.

The 15% rate is based on no new analysis whatsoever; it was simply the lowest rate that they think they can legally get away with. This is naked confiscation, or more bluntly, theft. The felonious behavior of Donald Trump was not limited to his Stormy Daniels payments (which were exposed only because he initially stiffed his fixer Michael Cohen on his holiday bonus, necessitating later payments), for hundreds of small contractors have attested to his refusal to make legally obligated payments for no other reason than to apply leverage and force them to accept lower payment. Cohen correctly identified this as the tactics of a gangster.

The United States government enjoys what authority it has only insofar as it is grounded in the rule of law, for it makes no claims to an immanent right to rule, as did absolute monarchs. When a government willfully acts without any regard for the rule of law, not only in this but in many other matters, it loses its authority and right to command obedience. I have only spoken on the matter that happens to be within my expertise, and perhaps this will only be persuasive to those with similar knowledge. But I do not delude myself that he is acting incompetently only in my domain of knowledge; there is little reason to doubt that such infantile recklessness, matched with an uncritical and unmerited confidence in one’s own judgment, pervades all of his rash orders.

Many of these orders may be stopped by the courts, but a thief does not cease to be a thief simply because he is prevented on several occasions. The most serious concern is not how many illegalities will stand, but the fact that the chief enforcer of federal laws sees illegality as a fair means to any end, even going so far to condemn and discredit judges who rule against him. The dictatorship which seemed like a delusion when it was described only by those on the left is now already a practical reality, at least as far as the compliant Congressional majority is concerned. Even if they should change their position later, they may find there is no longer a state apparatus willing to implement their will.