New York Times Botches a Core Legal Concept

By Charles C. W. Cooke

Thursday, January 16, 2025

 

‘Reporting from Washington,” the New York Times’ Alan Rappeport serves up this little gem, as part of a confused piece on Russell T. Vought, Donald Trump’s nominee to lead the Office of Management and Budget:

 

After leaving the office, Mr. Vought founded the Center for Renewing America, a conservative think tank, and was an architect of Project 2025. That document was an effort by conservative groups to develop detailed policy ideas and executive actions that Mr. Trump could take to tear down and rebuild executive government institutions in a way that would enhance presidential power.

 

Its legal underpinning of the agenda is a maximalist version of the so-called unitary executive theory that rejects the idea that the government is composed of three separate but equal branches and argues that presidential power over federal agencies is absolute.

 

Oh dear. Perhaps, for a while at least, Rappeport ought to consider reporting from a fifth-grade civics class. Not only is his description of unitary executive theory incorrect, it is completely, utterly, unequivocally backwards. Pace Rappeport, proponents of that idea do not “reject” the notion that the government is composed of three separate branches; they endorse it wholeheartedly. Indeed, ensuring that there are three branches of government — and that their functions remain discrete — is the entire purpose of the claim. Given the disproportionate number of powers that were granted to Congress, some may quibble with the Wilson-era addition of “but equal” in the description. But that is immaterial to the underlying aim of those who desire a unitary executive — which is to praise the separation of powers, rather than to bury it.

 

Unsurprisingly, Rappeport’s complementary characterization — that unitary executive theory holds that “presidential power over federal agencies is absolute” — is also wrong. Rather, it insists that presidential power over those who work within federal agencies is absolute. Why? Because, per the plain terms of the Constitution, “the executive Power shall be vested in a President of the United States of America,” and not in anybody else. The two key terms of that provision are “the executive Power” — which limits the jurisdiction to the powers of the executive, and thereby prohibits usurpation of the powers of the other two branches — and “vested” — which is applied only to the president himself. And why would it be otherwise? The United States is a democratic republic in which elected officials are held accountable for their decisions. The only elected official who holds power within the executive branch is the president. For anyone else to exercise power without the permission or endorsement of the sole electee would be to create a fourth branch of government, unmoored from oversight, and thereby to undermine the whole apparatus. That being so, it is especially amusing that Rappeport includes the number “three” in his depiction. The most frequent refrain you will hear from unitary executive proponents is that “there are three branches of government, not four.” Reject this? We never shut up about it.

 

That Rappeport made this mistake ought not to be surprising, given that, in recent years, the press corps to which he belongs has come to revere a phantom constitution that includes provisions that the real one lacks, and lacks provisions that the real one includes. Chief among the errors that have flowed from this trend is the belief that the terms “checks and balances” and “separation of powers” apply not to the carefully designated interplay between the executive, legislature, and judiciary, but to recalcitrant figures within the executive branch whose sacred role is to undermine the wishes of their boss. Thus have our leading journalistic organs managed to ignore or excuse the most extraordinary arrogations of power — President Biden’s theft of hundreds of billions of dollars from the Treasury in illegal, extra-legislative student-loan “relief,” for example — while insisting that outfits such as the Department of Justice and the Federal Bureau of Investigation are “independent” entities that sit beyond the Constitution’s allocated levers of control. Worse yet, those organs have habitually cast these perversions of the American system of government as “democratic” in nature, when, quite obviously, they represent precisely the opposite state. We are routinely told that if the president fires a member of his own branch, he is acting in an “authoritarian” manner, whereas if the president annexes a role that is the unique preserve of another branch, he is upholding the highest democratic ideals. One might ask how Rappeport could get it so wrong, but, given the waters in which he swims, it was inevitable.

 

Happily, the American Constitution is rather simple in this regard. Article I confirms, “All legislative powers herein granted shall be vested in a Congress of the United States.” This means that the president may never exercise legislative powers — even if he really wants to. Article II confirms, “The executive Power shall be vested in a President of the United States of America.” This means that the president gets to run the executive branch, and that he may fire anyone he likes while doing so. Article II, Section 2 confirms that the president’s power “to make Treaties” is contingent upon the acquiescence of Congress, as is his power to “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,” except for those that Congress has vested “in the President alone.” Granted, some of these words sound a touch old-timey — and one must do a little background reading to grasp what their authors were trying to achieve — but, with sufficient effort and the kind encouragement of his employer, I have no doubt that Alan Rappeport will sail through his remedial education and be back to writing carelessly from Washington, D.C., before too long.