The Roberts Court has sometimes hinted at supporting a strong version of the “unitary executive branch” theory—one in which Presidents can personally control all executive functions.  The Court’s hints, in turn, have emboldened the Trump Administration to take broad views of presidential power.  This term, however, the Court poured cold water on that view.  Judging by its decision in Kennedy v. Braidwood Management, Inc., the Court appears committed instead to a more moderate—and more legally sound—understanding of executive unitariness.

The unitary executive branch theory of course is the idea that, by vesting “[t]he executive Power” in the President and requiring Presidents to ensure faithful execution of the law, Article II of the Constitution necessarily gives the President control over the executive branch.

Courts and commentators have most often discussed the theory in connection with debates over presidential power to fire, or “remove,” federal officers.  As Gary Lawson and others have argued, however, vesting the “executive Power” in the President might require much more than a power to fire subordinate officers:  it might mean that the President can personally discharge all executive functions, or at least personally revise or countermand specific decisions by executive officials.  By contrast, critics of the unitary view point out that other constitutional provisions contradict such broad inferences from the Vesting and Take Care Clauses.

Both these competing positions, as well as various intermediate options, depend on inference; the Constitution just does not directly specify the President’s powers of control and removal for civil officers.  To be sure, some inferences may be stronger than others; ambiguity does not mean anything goes.  When it comes to such questions, however, historical practice should carry substantial weight.  Insofar as the Constitution does not address a question directly, a heavy burden of persuasion should fall on those seeking to disrupt settled understandings.

So what has our practice been with respect to presidential control over administration?  In a 2021 article on “Congress’s Power over Military Officers,” I argued that historical practice contradicts the strongest versions of the unitary executive branch theory even with respect to the military, let alone civil administration.  In practice, Congress has regularly assigned duties and authorities to specific officers other than the President, and those officers (not the President personally) have had to perform those functions.  In addition, while Presidents have always had some control over military functions, that control has not necessarily taken the form of removal authority:  although military officers can be punished through the court-martial process for disobeying lawful commands, they are not always removable at will.

These military examples are telling because the Constitution does give the President an express power of command over the military:  the President is “Commander in Chief,” so we know he has command authority without needing to infer such power from the Vesting or Take Care Clause.  In civil administration, however, we see a similar pattern:  statutes regularly assign duties and authorities to particular officers other than the President, and those statutes sometimes insulate inferior officers (as well as employees) from removal at will while at the same time providing alternative mechanisms of control.  Given that such arrangements are acceptable in practice for the military, over which the President is Commander in Chief, they should be equally acceptable for civil administration.

At times, the Roberts Court has nevertheless seemed to take a broader view.  In its key removal decision, Seila Law LLC v. Consumer Financial Protection Bureau, it described subordinate officers as “wield[ing]” the President’s own power—a view that could imply support for the Lawson theory that all executive powers necessarily belong to the President personally.  Likewise, in Trump v. United States, the Court observed that “[i]nvestigative and prosecutorial decisionmaking is ‘the special province of the Executive Branch,’ and the Constitution vests the entirety of the executive power in the President.”  It also indicated that, at least if the President has appointed the officer, presidential power to remove the officer “may not be regulated by Congress or reviewed by the courts.”

Although these passages’ precise meaning is unclear, such broad language may, as Jack Goldsmith has observed, embolden executive officials to take broad views of presidential power.  At any rate, the second Trump Administration has taken a capacious view of presidential power, apparently presuming that Article II empowers the President to fire even non-officer employees without regard to civil service protections.  Likewise, following a Fifth Circuit decision, it has taken the official position that tenure protections for administrative law judges are unconstitutional because those officials are doubly insulated from removal (they are often removable only for cause by a disciplinary body whose own members are also removable only for cause).  Agency heads, however, typically have plenary power to review ALJ decisions, so at will removal should not be necessary to satisfy any requirement of top-down control through the executive chain of command.

If the administration thought it had the Court on its side in taking these positions, Braidwood should cause it to reconsider.  The Court’s treatment of these issues was oblique:  the actual holding of the case was simply that members of the U.S. Preventive Services Task Force, a body with authority to require insurance coverage for certain treatments, are inferior rather than principal officers.  In the course of its reasoning, however, the Court accepted that the Task Force itself would need to make the coverage decisions at issue, even if the Secretary could revise those decisions or fire Task Force members for making decisions the Secretary disliked.  The Court even expressly noted and endorsed “the longstanding practice—reflected in [two earlier decisions]—of authorizing inferior-officer adjudicators in the Executive Branch to make initial, independent decisions that are only then subject to review by a superior officer.”  The Court did not consider it necessary for the Secretary—let alone the President—to have power to exercise those powers directly.

What is more, the Court rejected arguments that the Secretary held insufficient control over the Task Force because only the Task Force, not the Secretary, could initiate affirmative coverage decisions.  “[T]his Court,” Justice Kavanaugh wrote for the majority, “has not suggested that a principal officer must be able to compel a subordinate to take an affirmative act affecting private parties in order for the subordinate to qualify as an inferior officer.”  Likewise, although it was less explicit on this point, the Court appeared to recognize that only the Secretary, and not the President, could appoint and remove Task Force members (although of course the President could remove the Secretary for failing to exercise those powers to the President’s liking).

In all these ways, the Court recognized congressional power to assign duties and calibrate relationships within the executive branch, so long as the arrangements in question preserve some mechanism of top-down control and accountability.  This power matters because such arrangements may shape policy outcomes in important ways.  Here, for example, the Secretary (or President) may ultimately be able to get what he or she wants out of the Task Force, but the need to remove Task Force members or take other significant steps may draw attention to the issue, raising the political stakes and activating public resistance to unwise or unprincipled decisions.  As Justice Kavanaugh correctly observed, such “structure[s] . . . preserve[] both expertise and accountability.”

By contrast, the dissent doubled down on the suggestion that Presidents must hold direct control over agency functions.  “The President can remove Task Force members at will,” Justice Thomas wrote, joined by Justices Alito and Gorsuch.  “And,” he went on (quoting an article by Steven Calabresi and Sai Prakash), “the Vesting Clause may also empower the President to ‘issue binding orders’ to the Task Force and ‘nullify’ its decisions.”  This time, however, such language drew support from only three justices, not the full Court.

Thus, in Braidwood, the Court correctly recognized that Congress holds substantial authority over the design of executive agencies, even if the Constitution ultimately requires some degree of presidential control through the administrative hierarchy.  Acknowledging these powers is not only legally correct.  It could also help discourage the executive branch from acting on stronger variants of the unitary executive branch theory.

I wrote earlier on this blog about ways in which the Court’s decisions may amplify the country’s divisions and anxieties, with destructive consequences for important institutions.  Braidwood, by contrast, offers a positive example of a conservatism oriented not toward disrupting the status quo, but instead toward preserving time-tested understandings.

Zachary S. Price is a Professor at the University of California College of Law, San Francisco (formerly UC Hastings).