Saikrishna Prakash (University of Virginia School of Law) has posted Too Unitary (135 Yale L.J.F. 533 (2026)) (34 pages) on SSRN. Here is the abstract:
President Donald Trump’s Executive Orders embrace the unitary executive. But the peculiar version they embrace ignores the many exceptions and qualifications on the unitariness of our Constitution’s executive branch. The Executive Orders fail to heed these limitations because they neglect the obvious point that not all executive power rests with the President. Some are to be exercised in conjunction with the Senate and others are granted to Congress. Among other constraints that the EOs fail to acknowledge, the President cannot create or alter offices, lacks absolute authority over foreign affairs, and cannot suspend laws on foreign affairs grounds or otherwise. Trump is not the first President to make such mistakes, and he will not be the last. Presidents never tire of insisting that if previous presidents asserted some authority-“he did it; they did it,”-they may lay claim to it as well. In a sense, presidents have granted themselves the power to transform their office through the accumulation of actions and events. Violating the Constitution eventually becomes the act of amending it.
FURTHER THOUGHTS: Agreed. There’s an assumption in some commentary (and by some Presidents) that the “unitary executive” equals an all-powerful or unchecked executive. This is not the way I or Professor Prakash see it. In our writing, together and separately, we’ve emphasized what we called at one point the Goldilocks Executive. The Constitution’s Goldilocks executive is not too powerful (like the British and European monarchs) or too weak (as under the Articles of Confederation), but instead “just right,” possessing substantial independent powers but also subject to key constitutional checks.
Posted at 6:25 AM