Did The Supreme Court Already Accept Donald Trump’s Autocratic Vision Of The Presidency? Trump Thinks So.
The first month of President Donald Trump’s second term in office has been marked by a flurry of actions that can most generously be described as legally and constitutionally dubious ― if not outright lawless.
He has impounded funds, dismantled agencies, fired government officials, appointed special government employees with sweeping powers, altered constitutional amendments and purported to end the independence of certain agencies. All of this has been done in contravention of existing law ― and all of it is now being challenged in court, where Trump has been hit with numerous losses in lower federal courts.
These losses, however, may not worry the Trump administration. That’s because Trump and his legal advisors believe that the Supreme Court has already remade the presidency and blessed their actions ― despite laws and legal precedents ― in its decision in Trump v. United States.
In July 2024, Chief Justice John Roberts handed down the Supreme Court’s 6-3 decision in Trump v. United States, which centered on Trump’s effort to overturn the 2020 election and the subsequent felony charges brought against him for those actions. But the ruling was broader, granting the president immunity from criminal sanction for official acts: “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute,” Roberts wrote.
The decision not only delayed Trump’s trial and kept him out of jail long enough to reclaim the White House, but it also set forth a sweeping vision of executive power for him to take advantage of now that he’s back in office. Nowhere is that more clear than Trump’s attempts to fire government officials he deems insufficiently loyal, often in clear contradiction to standing law, and his attempts to seize power allocated to other agencies and branches of government for himself.
“The importance of Trump [v. United States] as an executive branch sword rather than a presidential immunity shield has come into clearer view with President Donald Trump’s early executive orders and actions, and with the actions of his senior subordinates,” Jack Goldsmith, former Office of Legal Counsel lawyer in the George W. Bush administration, explained in a post on his Substack. “The Supreme Court’s broad holdings on the scope of exclusive presidential power vis-à-vis Congress underlie many of the Trump administration’s most controversial actions.”
If the courts bless this vision in the legal challenges to Trump’s policies now headed their way, they will usher in a new age of centralized presidential power that puts the White House above and beyond both Congress and the judiciary.
“The effect of Trump v. United States is to take this broad categorical power of the president to ‘take care the laws be faithfully executed’ and turn it into virtually uncheckable power,” said Peter Shane, a leading scholar on the separation of powers and the executive branch at New York University School of Law. “It’s an outrageously wrong reading of the Constitution with great danger in how it metastasizes in someone whose tendencies are as autocratic as Trump’s.”
Trump And The Removal Power
At the heart of the court’s vision of executive power is the so-called unitary executive theory, a bedrock belief of the conservative legal movement that claims that all of the power of the executive branch is vested by the Constitution in the president.
The unitary executive theory emerged from Ronald Reagan’s Justice Department in the 1980s as a legal concept designed to counter post-Watergate efforts by Congress to expand oversight within the executive branch and new ethics policies for lawyers that imposed limits on unethical practices by federal prosecutors. It was also conceived as a way for the president to claw power from Congress, which had been controlled by Democrats for most of the 20th century, in order to seize control of agencies that regulated the economy, and roll back their regulatory authority. This would help fulfill the conservative movement’s desire to dismantle the New Deal state created by Franklin Roosevelt.
Over decades, unitary executive theory marched from extreme defeat in Morrison v. Olson, the 7-1 case that upheld a law allowing for the appointment of independent counsels to investigate the executive branch in 1988, to extreme victory in the 2020 Supreme Court decision in Seila Law v. Consumer Financial Protection Bureau, which blessed the unitary executive theory by preventing Congress from limiting the president’s power to remove heads of government agencies.
The six conservative justices who comprised the majority in Trump v. United States, however, went even further. The court extended the scope of the president’s “conclusive and preclusive” powers derived “from the Constitution itself” to cover the ability to remove and direct the actions of the Justice Department for any reason whatsoever.
At issue was Trump’s 2020 plot to purge top DOJ officials and install DOJ environmental regulatory lawyer Jeffrey Clark as acting attorney general, after Clark promised Trump that he would do his bidding in Trump’s effort to overturn the election results. The court ruled that the president’s removal of the attorney general, even for corrupt purposes, is constitutionally protected from challenge and prosecution.
“The President’s ‘management of the Executive Branch’ requires him to have ‘unrestricted power to remove the most important of his subordinates’ — such as the Attorney General — ‘in their most important duties,’” the decision states.
The court had never given the president blanket constitutional authority over removal. The long-standing precedent in Humphrey’s Executor v. United States allowed Congress to limit presidential removals for certain agency officers to only certain causes like “inefficiency, neglect of duty, or malfeasance in office.” The decision in Seila Law bumped up against the Humphrey’s Executor precedent, but only applied to superior officers appointed by the president to head single member agencies.
“The removal power has never been viewed as unregulable by Congress or outside the purview of the courts,” said Deborah Pearlstein, an expert on executive power and the unitary executive theory at Princeton University. “That was one of the things that was so far reaching. And that’s the piece of this that pulls on the unitary executive theory.”
The Trump administration believes that this holding in Trump v. United States gives the president the power to remove any executive branch officer, even when Congress specifically enacted restrictions on his removal power in law. So far, Trump has attempted to fire at least 17 inspector generals, the head of the Office of Special Counsel, the head of the Merit Systems Protection Board, the chairman of the National Labor Relations Board, the Democratic members of the Privacy and Civil Liberties Oversight Board, and the chairman of the Federal Election Commission. All these firings are in violation of existing laws placing requirements or limitations on presidential removal.
These firings aim at the administration’s stated goal of overturning Humphrey’s Executor and affirming the unitary executive theory’s conception of the president’s expansive removal power.
The court’s holding in Trump v. United States has already been cited by the administration in its brief to the Supreme Court contesting a district court’s temporary restraining order blocking the dismissal of Office of Special Counsel head Hampton Dellinger, who has the power to investigate improper firings of government employees ― something that has become a key storyline in the administration’s early weeks.
“[T]he court’s order restrains the exercise of the President’s ‘conclusive and preclusive’ powers—which lie at the core of Article II, which ‘Congress cannot act on,’ and which ‘courts cannot examine,’” the brief states with direction citation to Trump v. United States. Adding, that “[i]nvestigative and prosecutorial decisionmaking is ‘the special province of the Executive Branch.’”
While the court ultimately declined to overturn the restraining order — with dissents from Justices Samuel Alito and Neil Gorsuch — it’s clear that the Trump administration believes that the holding in Trump v. United States extends beyond the Justice Department and the president’s removal power to constitutionalize a presidential power to direct the “decisionmaking” for all investigative and prosecutorial agencies.
Beyond The Unitary Executive
Nor has that argument, or actions based on it, been limited to legal briefs. On Feb. 19, Trump issued an executive order which would effectively end the independence of all executive branch agencies including the Federal Trade Commission, Securities and Exchange Commission, Federal Election Commission, National Labor Relations Board and even most functions of the Federal Reserve. The order declared that only the president and attorney general “shall provide authoritative interpretations of law for the executive branch” and ordered all agencies to run any action through the White House’s Office of Information and Regulatory Affairs.
This position, though, goes far beyond the existing scope of the unitary executive theory it’s based on. “You could use unitary executive theory to support this, but that’s not something the courts have ever contemplated,” Pearlstein said.
The executive order also claimed to grant Office of Management and Budget director Russell Vought the power to impound congressionally-appropriated funds and direct agencies how they can spend congressionally-appropriated funds, which, “has nothing to do with the unitary executive theory,” according to Pearlstein.
Where the administration’s arguments around the president’s removal power may go beyond what the court held in Trump v. United States, they are at least built on that decision’s legally binding language regarding the firing of the attorney general. On the other hand, its efforts to blow past the unitary executive theory are rooted in what Goldsmith calls a “muddled mishmash” of dicta, statements in a decision that are not controlling, about executive power.
This can be seen in a 2024 paper from conservative legal scholars Mark Paoletta, now the general counsel for the Office of Management and Budget, and Daniel Shapiro, now the deputy chief legal officer for the Consumer Financial Protection Bureau. The two argued that the president has the right to decline to spend money appropriated by Congress — thus undercutting a primary Congressional power — stemming “from the President’s conclusive and preclusive authorities the Court sets out in the Trump v. United States opinion.”
The paper cuts and pastes dicta from Trump v. United States to craft a vision of executive power more expansive than any previously conceived. Under this reasoning, the president “may act even when the measures he takes are ‘incompatible with the expressed or implied will of Congress,’” according to Paoletta and Shapiro’s mish-mash.
This analysis is “big league wrong,” Shane said. “[Their] analysis is intended to subvert one of Congress’ main levers to function as a coequal branch of government, which is the power of the purse.”
“There is no traditional tool of legal reasoning that supports the notion that the president has some sort of exclusive impoundment power” to restrict funds already approved by Congress, Pearlstein said.
Both Shane and Pearlstein think that while Trump’s arguments around the removal power may win support at the Supreme Court, these arguments in favor of a constitutional impoundment power would fail.
This is one of many potential pitfalls for the Trump administration’s belief that Trump v. United States blessed a maximal vision of executive power that flies far past the existing lines of unitary executive theory. But the Supreme Court never explained how far its vision of executive power in Trump v. United States extends, leaving the administration’s claims on shaky theoretical grounds.
“These flawed executive authority lessons that the Trump administration seems to be gleaning are a profound misreading of the decision in Trump v. United States,” said Praveen Fernandes, vice president of the Constitutional Accountability Center, a liberal legal group. “That decision was not a signal that the executive branch and president could do whatever they want. If that is the Trump administration view, then it is misreading the decision and overplaying its hand.”
At the same time, Trump’s assertions are building on the court’s own patterns. The court’s conservative supermajority has built the legal apparatus for the unitary executive theory one decision at a time ― Trump v. United States merely went one step further. The question now is whether the court will go down the road of blessing Trump’s claims that Article II of the Constitution gives him “the right to do whatever I want as President.”
The consequences of the court adopting the vast vision of executive power that the Trump administration sees in Trump v. United States in a formal decision would be monumental.
“A court decision that holds that it would be unconstitutional to impose any restrictions on the president’s ability to fire heads of independent agencies would not only dismantle the administrative state as we know it up to and including the Federal Reserve,” Pearlstein said. “If they swept that broadly, it would have unfathomable consequences for not just the American economy but the global economy as a whole.”
It would also transform the relationship between the president, Congress and the courts to create a truly imperial presidency ― above and apart from the other branches.
“It would be something like authoritarian democracy or a soft dictatorship,” Shane said. “It would turn the apparatus of government into just apparatchiks bound to follow in lockstep. You’d wind up with something very different from a genuine representative democracy.”
That’s because what Trump is asking for is not about “just any legal case or any set of legal cases,” Pearlstein said. “This is an effort to turn the U.S. from a constitutional democracy into an authoritarian system more like Hungary.”
“The endgame has nothing to do with the current system of the rule of law as we know it,” she added. “The endgame has to do with making the U.S. government, ‘whatever the president says goes.’”