The “unitary executive theory” was busy last week. Allies of former President Donald Trump threatened that if he were to regain the presidency, he would invoke the theory as the basis for using the Justice Department to persecute his political enemies. Meanwhile, in United States ex rel. Polansky v. Executive Health Resources, three Supreme Court Justices suggested that they would like to employ the theory to invalidate a practice that has deep historical roots.
What is the unitary executive theory? And does it justify the extreme positions for which we see it being invoked? In today’s column, I evaluate the theory and its use in the Supreme Court. In an accompanying essay on the Dorf on Law blog, I discuss its cynical deployment by Trump’s enablers.
The Unitary Executive
The unitary executive theory posits that the Constitution gives the President authority to control all executive action. If fully adopted, it would act as a very substantial limit on the power of Congress to assign executive authority to high-ranking personnel who do not serve at the pleasure of the President.
For a leading example of what the unitary executive theory entails, consider Justice Antonin Scalia’s dissent from the Supreme Court’s 1988 decision in Morrison v. Olson. In that case, the majority upheld the statute under which special prosecutors were then appointed and given some functional independence from the President and the Attorney General. Dissenting, Justice Scalia quoted the first line of Article II: “The executive Power shall be vested in a President of the United States.” He then said that “this does not mean some of the executive power, but all of the executive power.”
Justice Scalia was the lone dissenter in Morrison, but in the intervening years, additional Justices have signed onto his approach. Indeed, some Roberts Court rulings construe the Appointments Clause in ways that rely on a version of the unitary executive theory. Meanwhile, bolder politicians, advocates, and activists have tried to put the theory into practice in order to accomplish what Steve Bannon called “deconstruction of the administrative state.”
Is the unitary executive theory sound? In addition to pointing to the text of Article II, jurists and scholars who promote the theory make historical and functional arguments. They often cite Federalist No. 70, in which Alexander Hamilton pointed to “unity” of the Executive as a key to achieving the “energy in the Executive” needed for government to operate effectively.
Yet Federalist 70 can take us only so far. For one thing, Hamilton favored a stronger executive branch than did virtually any of the Constitution’s other framers. A more balanced picture comes into focus if one examines a wider range of views.
Moreover, even Hamilton did not believe in the unitary executive theory. As Treasury Secretary, Hamilton proposed, Congress enacted, and President George Washington signed legislation creating what we would now call an independent agency (the Sinking Fund Commission) with authority to purchase federal debt. As Professor Christine Chabot observes in a 2020 law review article, its “independent structure marks a deliberate and important decision not to entrust a single elected President with absolute control over the execution of federal laws.”
Yet despite its dubious pedigree, the unitary executive theory remains popular among conservatives, as last week illustrated.
SCOTUS Allows the Government to Blow the Whistle on Whistleblower
A federal statute, the False Claims Act (FCA), gives whistleblowers who work for federal contractors an incentive to come forward to report when their employer has defrauded the government. It allows a whistleblower to sue in the name of and on behalf of the United States government to recover the fraudulent charges. If the suit succeeds, the whistleblower receives a share of the recovery. Modeled on an old English practice by which royal subjects could sue on the king’s behalf, the statute refers to such a case as a qui tam (“in the name of the king”) action.
Dr. Jesse Polansky brought a qui tam suit alleging that his employer helped hospitals overbill the government for Medicare. Because the ultimate liability in a qui tam lawsuit runs to the government, it has the option of taking over such a case, but here it initially declined to do so. After years of pre-trial discovery, however, the government eventually moved to intervene and dismiss the case, concluding that the relatively small amount at stake did not justify further litigation expenses. Dr. Polansky objected that, having failed to assert its interests early, the government could not dismiss the litigation later.
The Supreme Court disagreed. Given the relatively arcane subject matter, Justice Elena Kagan wrote a delightfully lively majority opinion in Polansky parsing the various provisions and sub-provisions of the FCA to conclude that the government’s dismissal motion was timely after all and should be evaluated under Federal Rule of Civil Procedure 41, just like a comparable non-qui-tam motion for voluntary dismissal.
Justice Clarence Thomas was the lone dissenter. He read the FCA to give the government the power to dismiss only those lawsuits it takes over at the outset. But he also went on to suggest that the FCA’s qui tam provisions are unconstitutional because they violate the unitary executive theory of Article II. Quoting his own separate opinion in Seila Law, LLC v. CFPB, Justice Thomas wrote that “because the entire ‘executive power’ belongs to the President alone, it can only be exercised by the President and those acting under him.” And because qui tam plaintiffs are not appointed as “officers” answerable to the President, they are therefore constitutionally incapable of exercising the power the FCA gives them.
To be sure, Justice Thomas stopped just short of saying he thinks that qui tam actions definitely violate Article II, because he thought the issue should first be considered by the lower courts. But he was pretty clear where he would likely come out. Moreover, three other Justices seem to share his leaning. Justice Neil Gorsuch joined Justice Thomas’s separate opinion in Seila Law, while Justices Brett Kavanaugh and Amy Coney Barrett concurred in Justice Kagan’s majority in Polansky but wrote separately to say that they agreed with Justice Thomas that there are substantial doubts about whether qui tam actions are consistent with Article II.
Will History Count?
One can only hope that if and when the Justices do hear a case that squarely presents the constitutional question, they will be guided by the principles that they frequently espouse. Unfortunately, there is reason to doubt that they will be.
Not only is the unitary executive theory writ large ahistorical; it is especially unpersuasive as a basis for invalidating qui tam actions, as the Court’s own precedents confirm. In the 2000 case of Vermont Agency of Natural Resources v. United States ex rel. Stevens, the Court held that the FCA does not authorize qui tam actions against state defendants. En route to that decision, the Court needed to find that the qui tam plaintiff had standing under Article III.
The argument was made in Stevens that qui tam plaintiffs lack standing because they are not personally injured by fraud against the government. Writing for a majority that included Justice Thomas, Justice Scalia nonetheless found standing proper. History played a crucial role in that determination. The Court traced the lineage of qui tam actions back as far as 13th century England. Justice Scalia found “this history well nigh conclusive with respect to the question” of qui tam actions’ consistency with Article III.
To be sure, the Court in Stevens formally left open the question whether qui tam actions are consistent with Article II. Because England has a parliamentary system of government whereas the Constitution separates the branches of government in the United States, it is possible to argue that the English history described in Stevens is not relevant to the scope of executive power under Article II despite its relevance to the scope of the jurisdiction federal courts may exercise under Article III.
However, the Stevens Court also described the use of qui tam actions in the United States, including “immediately after the framing,” when “the First Congress enacted a considerable number of [qui tam] statutes.” That history surely is relevant to their validity under Article II.
In grudging recognition that history stands as an obstacle to bulldozing the FCA’s qui tam provisions via the unitary executive theory, in his Polansky dissent, Justice Thomas quotes two cases for the following proposition: “Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees,” even when the practice in question “covers our entire national existence and indeed predates it.”
Well, sure, historical practice cannot overcome clear constitutional commands, but the position Justice Thomas tentatively endorses in Polansky—that Article II bars qui tam actions—does not rely on clear constitutional text. And as Justice Thomas more than any other Justice has emphasized, where constitutional text is unclear, historical practice can and does provide vital clues to its original meaning.
* * *
Should it come, a future holding that Article II forbids qui tam actions would be mistaken and would likely cost the government billions of dollars in unchecked fraud. Worse, it would be an exercise in rank hypocrisy. The conservative Justices would be preferring their ideological goal of undercutting regulation via the dubious unitary executive theory to their supposed commitment to originalism. Such a ruling would also likely portend further judicial efforts to deconstruct the administrative state.