It has been a big summer for the unitary executive theory. The Supreme Court just handed down Trump v. Slaughter: a decisive step that continues the trend of previous decisions in consolidating control of the administrative state in the hands of the President. Here I want to explain how, for all the warranted attention it has garnered, the true consequences of the unitary executive theory are even greater than they first appear.

In June, the Department of Justice (DOJ) filed a curious motion to intervene in NAACP v. xAI. The lawsuit came under the Clean Air Act, which authorizes anyone to sue to enforce its requirements—a broad citizen suit provision. The plaintiffs took advantage of this and sued alleging that xAI was operating dozens of natural gas turbines to power its data centers without obtaining the necessary permits, thereby evading the Clean Air Act’s requirements.

The lawsuit itself is entirely conventional. It does exactly what a citizen suit provision is supposed to do—enable a private party to step in and go to court to see a law enforced that would not have been otherwise. What is striking is the motion, where the DOJ asserts “the right to unilaterally dismiss the case in its entirety” for any reason, or no reason at all. The DOJ argues that the executive branch possesses “preclusive enforcement discretion” that extends to deciding which and when citizen suits go forward. The motion does acknowledge some place for private suits under federal statutes, but only in the case of an individualized harm that constitutes a recognized Article III injury seeking “highly personalized relief.” The DOJ also argued that the lawsuit threatened national security, a distinct line of argument that I will not address here.

This motion to intervene and then dismiss the lawsuit did not go unnoticed. As Erika Kranz noted, this is the first time the United States has sought this kind of intervention. That is hardly a surprise. Citizen suits like this one are easy money for the government: the law gets enforced without anyone in the Executive Branch having to lift a finger; the costs of investigation and prosecution are outsourced to private parties, in this case the NAACP; and the civil penalties go into the federal treasury. Yet the DOJ now objects to all—or nearly all—citizen suits on constitutional grounds. In its motion, the DOJ argues that Article II vests the President with complete, “conclusive and preclusive” discretion regarding enforcement. That includes, perforce, discretion to not enforce. Further, that decision is not subject to any judicial review. It cannot be gainsaid by anyone. As the DOJ tells it, the decision to enforce the law is at the sole discretion of the President.

This position seems radical. But here the DOJ is just trodding the pathway the Supreme Court has laid out for it. It is following the Court’s unitary executive theory to its logical end. As I explain in Unitary Enforcement, what we see in this motion is both grounded in and made all the more important by the Court’s unitary executive jurisprudence.

The unitary executive theory operates at two levels here. It serves as both the justification for the DOJ’s motion and the reason why it is so portentous. The DOJ’s arguments are by now familiar ones: the President possesses all the executive power, therefore anything that falls within that ambit is entirely within their control, an—as a constitutional commitment—that control cannot be curtailed or displaced by statute. Enforcement is seen as an archetypal executive power, so it is to be the sole, exclusive province of the President. This puts the unitary executive theory on a collision course with the numerous citizen suit provisions presently on the books. In Steve Vladeck’s words, the DOJ’s reasoning would render “every citizen suit filed under every environmental statute,” and I would add any other statute as well, “a provisional enforcement action that proceeds only at the pleasure of the executive, subject to termination the moment the White House decides a defendant is more useful if left alone.”

At the same time, the unitary executive theory makes those citizen suit provisions matter all the more because it puts the entire federal enforcement apparatus under the control of the President, sidelining independent agencies. The unitary executive theory is most commonly associated with forbidding “independent” agencies. In the eyes of the Supreme Court, the federal bureaucracy has to be under presidential control: “a here-and-now subservience” in the words of 2024’s Braidwood decision or “chain of dependence” in 2020’s Seila Law.

I would actually say that the Supreme Court has gone even further. The Court has been skeptical of any institutional structure of agencies that does not have a close, longstanding, and uncontroversial historical antecedent. This sharply limits Congress’ options in designing agencies, which in turn robs it of its most effective tool at influencing agency decisionmaking—agency institutional design. That tracks: the very point of the unitary executive theory is to subject all agency action to presidential control; anything that undermines that control would be unconstitutional.

That leaves only one viable option for enforcement not subject to complete presidential discretion: citizen suits. As the Supreme Court has cashed things out, you can’t really have complete presidential control over enforcement without also disallowing citizen suits. There is a clear tension here—citizen suits represent an enforcement option outside of presidential control. And if enforcement is a core executive power, how can the President have “the executive power—all of it”? The DOJ’s motion in NAACP v. xAI calls out and seizes upon this tension. What we are witnessing is a federal agency taking the Supreme Court’s logic, reiterated across several decisions, and running with it.

The implications of the DOJ’s motion are so sweeping just because the Court’s logic is so sweeping. There is not really anything specific to environmental law—or national security—in it. I am thus pessimistic that any amendments to the Clean Air Act or similar statutes would make a fundamental difference. (In this regard my read differs from Vladeck’s). The primary motivation for citizen suit provisions is to allow for enforcement of a law that is not at the pleasure of the President, to insulate the law in question from political headwinds. The “private attorney general” is not just a redundancy, but something that is decentralized and separate. Indeed, the motivation parallels that for independent agencies. And the Supreme Court’s logic stands starkly opposed to both. Especially if the executive power that belongs—solely and entirely—to the President is defined as broadly as it was in Slaughter: “When an agency ‘executes’ a congressional mandate against private parties, it exer­cises executive power—no ifs, ands, or quasis about it.” (The reference to “quasi-“ is a dig at the now finally interred Humphrey’s Executor precedent).

It is hard to see how citizen suits, designed to circumvent the President’s management of federal enforcement, could be distinguished. Their very existence is a limit on the President’s seeming monopoly over enforcement discretion. Moreover, as I show, the Supreme Court has been chipping away at citizen suits through other doctrines that parallel the unitary executive theory. The Court has all but boxed Congress out of enforcement discretion.

This puts Congress in a bind. By design, it is hard for one branch to contend with two others. The Court’s rulings have empowered the presidency, and you would expect Presidents of any party or ideology to jealously guard their power. (Gorsuch notes this in his Slaughter concurrence). The President will wield the veto and the bully pulpit to thwart legislative attempts to rein them in. By design, Congress is a cumbersome beast. Legislation is hard, and Congress’ other means of disciplining the executive branch, like the power of the purse, are likewise hard to use and have been weakened. Changing the law of the land has consequences.

With the seemingly lone exception of the Federal Reserve, the Supreme Court has eliminated independent agencies, taking the step it telegraphed last year. With so much of the federal government conclusively in the hands of the President, citizen suits are the natural place for Congress to look if it wants to put some decisions out of the President’s grasp. Yet the same unitary executive arguments that deem agency independence unconstitutional would seem to apply with equal force to citizen suits. What we see in NAACP v. xAI is not just a Department of Justice pushing an aggressive litigation position to protect a close ally of the President. It is the natural consequence of the reasoning the Supreme Court has been articulating for years and just confirmed. We should expect the government to take notice. Political power now directly and automatically translates into legal power—and with it insulation from consequences for lawbreaking.

Dr. Nicholas Almendares is Associate Professor of Law at Indiana University Maurer School of Law.