The Unitary Executive and Trump: How Lawyers Undermine the Constitutional Presidency

Donald Trump has exhibited the same behaviors in his second term as he did in the business world: headstrong, impulsive, demanding, erratic, insistent on personal loyalty from those around him, impatient with procedural niceties, and contemptuous of the rule of law. Yet President Trump in office has not behaved as a lone wolf. His actions have been buttressed, fortified, and legitimized by those around him via two related recent constitutional theories: Originalism and the Unitary executive. This paper examines how the Unitary theory was spun and legitimized by the conservative legal community, despite the fact that the Unitary theory largely contradicts the very Constitution it claims to extol. The Unitary theory’s profound influence was built in a field of study, law, that has proven itself a breeding ground for wayward constitutional theorizing for reasons that this paper examines. Unitary adherents have been the largely unseen handmaidens of Trump’s power expressions.