How a legal theory from the 1980s shapes presidential power today

As young lawyers in the Reagan administration, future Supreme Court justices Samuel Alito and John Roberts entered an executive branch convinced that a powerful president could rescue the country after a humbling decade defined by Watergate, defeat in Vietnam, and runaway inflation. What the administration promised most of all was an answer to a generation of Democratic majorities in Congress frustrating Republican priorities.

The early 1970s saw Richard Nixon break new ground in his assertions of presidential power. He refused to spend an estimated $18 billion in funds appropriated by Congress. He authorized secret bombings of Cambodia. During Watergate, he sought to shield executive branch officials from congressional and judicial scrutiny with sweeping claims of executive privilege.

In the face of these moves by the White House, the other branches of government pushed back. Federal lawmakers passed new laws limiting the president’s ability to impound – meaning withhold or delay – funds appropriated by Congress, and to enter military conflicts without approval from Congress. A suite of federal laws strengthening executive branch transparency and oversight also passed in the late 1970s. The Supreme Court rejected the administration’s claims of executive privilege and presidential immunity.

Why We Wrote This

The story of how a constitutional theory grew in prominence reveals the evolving American debate about the presidency.

It was in this context that Ronald Reagan entered the White House as president in 1981, bringing with him a slew of young, conservative lawyers. These included not only the two future Supreme Court justices, but also figures who would go on to found conservative legal organizations such as the Federalist Society.

Ron Edmonds/AP/File

Future Chief Justice of the United States John Roberts (middle row, far right) stands among a group of President George W. Bush’s federal judicial appointments, at the White House, May 9, 2001.

Reagan’s lawyers, alongside ideologically aligned law professors and think tanks, developed an intellectual framework for establishing the executive branch as above and apart from the other branches of government. The result: an expansive new vision of the separation of powers, underscored by a concept that emerged known as the “unitary executive theory.”

Broadly, the theory holds that the Constitution gives the president of the United States complete power over the executive branch, including personal authority over domestic and foreign policy, such as the ability to unilaterally remove government officials and enter military conflicts. The term soon popped into presidential vocabulary. Reagan used it six times in official statements and President George H.W. Bush 41 times. (Reagan Attorney General Edwin Meese frequently referenced the theory’s ideas. “Leaders in both branches have increasingly recognized that institutionally Congress is ill-suited to lead and that therefore a relatively strong presidency may be necessary,” read a 1986 report that Mr. Meese commissioned.)

Once a theory supported by a minority of jurists and legal minds, the unitary executive theory has shaped a succession of presidencies from both political parties. Over the past 17 months, Donald Trump has sought to push this theory’s view of presidential power further than any president in history.

“A lot of what Trump has done has been done before, but the magnitude is different, and it presages a new normal for presidencies going forward,” says Saikrishna Prakash, a professor at the University of Virginia School of Law and author of the book “The Living Presidency.”

“The direction has been there for 20 or 30 years,” he adds, “with modern presidents showing no hesitation to act unilaterally to implement their agenda in a host of ways that would have been unfathomable 100 or 200 years ago.”

The rise of the unitary executive theory is part of a grander story – the gradual rise of presidential power more broadly. Proponents argue that the trend represents a return to original intent; critics claim it threatens the separation of powers designed by the framers to preserve individual rights and democracy.

This constitutional power struggle has always existed. The Trump era is testing how far Congress, the courts, and the public are willing to empower the president to be the country’s singular problem-solver.

This month, the Supreme Court is expected to rule on several cases that touch on the extent of the president’s hold over the executive branch, and the power the executive holds relative to Congress and the courts. Those include whether Mr. Trump can fire a governor of the Federal Reserve or a commissioner of the Federal Trade Commission (FTC), agencies that Congress established to have semi-autonomy from the presidency.

With Justice Alito and Chief Justice Roberts on the high court – alongside Justices Neil Gorsuch and Brett Kavanaugh, who both served in the George W. Bush administratio…