Americans Don't Like Kings
The Dangerous Fiction of the Unitary Executive
One watches, with a mixture of incredulity and mounting dread, as half a nation founded in rebellion against monarchy now genuflects before the presidency as though it were a sacred office. The irony would be darkly comedic if it weren't so corrosive to our constitutional order.
Let's dispense with the comforting fiction that Americans rejected monarchy on abstract principle alone. The colonists' quarrel with George III wasn't primarily that he wore a crown—they had, after all, tolerated that arrangement for generations—but that he had made himself the living embodiment of law. The Declaration of Independence, that revolutionary document so dutifully recited each July by citizens who have rarely examined its contents, is fundamentally a legal indictment against a sovereign who had collapsed the roles of judge, jury, and executioner into his royal person.
Washington's refusal of the crown wasn't an act of saintly self-denial but the minimum requirement for republican legitimacy. Without it, the entire experiment would have been stillborn. That we continue to celebrate him for not becoming a tyrant reveals more about our degraded expectations than his virtue.
The Federalist Papers—those texts so frequently invoked and so rarely comprehended—reveal the Founders' acute anxiety about concentrated power. Madison understood that power doesn't rest contentedly within boundaries; it probes, it tests, it expands. Even Hamilton, no opponent of energetic governance, went out of his way to reassure skeptics that the American president would be "far inferior in power to the King of Great Britain." The constitutional architects understood exactly what they were building against: not just British rule, but the very concept of unlimited authority.
Which brings us to the dangerous fiction at hand.
Origins of the Unitary Executive Theory
The Unitary Executive Theory—a term that sounds bureaucratically mundane until you grasp its implications—is not the originalist doctrine its advocates claim. It's a post-Watergate reaction, conceived in the Reagan Justice Department by lawyers determined to claw back executive power that reformers had just managed to constrain. It didn't emerge from Philadelphia in 1787; it was born in the Office of Legal Counsel two centuries later.
Its central maneuver is audaciously simple: extract six words from Article II—"the executive Power shall be vested"—and construct an entire palace of authority upon them. Never mind the carefully designed checks that surround those words. Never mind the explicit limitations enumerated elsewhere. From this modest foundation, they conjure a president who controls everything within the executive branch: agencies, personnel, enforcement, prosecution, removal. No independent commissions. No special counsels. No civil service protection. No institutional resistance. Just centralized command flowing from a single office.
This isn't constitutional interpretation. It's constitutional reinvention.
From Theory to Application
And now this legal fabrication has evolved from academic theory to governing doctrine. Stephen Miller's organization—America First Legal—has filed a lawsuit asking federal courts to declare the Judicial Conference and the Administrative Office of the U.S. Courts as executive agencies.1 His organization’s logic is breathtakingly circular: these bodies perform administrative functions; administrative functions are executive; therefore, these judicial bodies must be executive agencies subject to presidential control.
The complaint gestures toward FOIA compliance as its objective, but this pretense is transparent. The real purpose is to drag the judiciary's infrastructure under presidential authority—to make the courts, or at least their administrative apparatus, answer to the very figure they were designed to check.
This isn't theoretical maneuvering. It's a direct assault on separation of powers.
Examining the Theory's Foundations
The historical evidence marshaled to support this royal regression would embarrass a serious scholar. Advocates invoke the "Decision of 1789" without acknowledging that Congress was deeply divided, that the statutory language was deliberately ambiguous, and that many who supported the Foreign Affairs Act explicitly rejected Madison's removal theory.2 They quote Hamilton's call for "energy in the executive" from Federalist 703 while conveniently ignoring Federalist 69 and 77, where he meticulously details presidential limitations. They treat the Vesting Clause as a blank constitutional check, when the Founders clearly conceived it as a modest allocation of enumerated powers.4
This selective reading isn't jurisprudence; it's opportunism masquerading as originalism. The arguments are intellectually dishonest because their goal isn't constitutional clarity. It's constitutional transformation.
Unitary Principles in Modern Governance
And this theory has been weaponized by administrations of both parties.
Bush employed it to justify torture memos and warrantless surveillance. Obama discovered its convenience when congressional gridlock blocked his agenda on immigration and climate. Biden has maintained much of the executive machinery without significantly reducing its reach. And Trump—unrestrained by traditional norms—used it to fire inspectors general, sideline career officials, weaponize the Justice Department, and test just how far Article II could stretch before something snapped.
This is the inevitable trajectory of unchecked power: it accumulates, then metastasizes. From appointment to removal, from enforcement to interpretation, from department to agency to court. Nothing remains independent because nothing remains truly separate.
The Threat to the Republic
What makes this constitutional revision truly dangerous is how it cloaks itself in the language of the Founding while systematically dismantling the architecture the Founders built. It speaks of restoration while pursuing radical change. It quotes Madison while advancing a theory he would have vehemently opposed.
If we allow this legal fiction to become constitutional fact—if we continue mistaking dominance for leadership and impulse for governance—we will complete the great American irony: having founded a nation in revolt against a king, we will surrender it to the hands of a president with powers George III could only have dreamed of possessing.
The choice before us is no longer between efficiency and gridlock. It's between constitutional government and the rule of an unaccountable man. Between a republic of laws and a nation of subjects. Between the messy complexity of democracy and the false simplicity of autocracy.
The Founders made their choice in 1776. So what will it be, friends?
The crown jewel of UET lore. Allegedly, Congress decided—early, definitively, and with full constitutional clarity—that the president had the sole power to remove executive officials. Here’s what actually happened.
In 1789, Congress debated how to set up the Department of Foreign Affairs. The fight was over whether the president could remove the Secretary without Senate involvement. Madison pushed hard for yes, but even he said the Constitution was ambiguous on the point. Others disagreed. The House was split. The final bill passed with deliberately vague language that settled nothing.
There was no formal decision. There was no judicial ruling. And many who voted for the bill said on the record that they were explicitly not endorsing Madison’s view. They just wanted to move on.
So no: it’s not a “decision.” It’s a legislative shrug that got retrofitted into myth by conservatives in the 1980s.
Hamilton does indeed call for “energy in the executive.” UET defenders love that line. They tattoo it onto legal briefs like scripture. What they leave out is everything else.
Federalist 70 is about why there should be one president, not a council. That’s it. Hamilton wanted decisiveness and accountability, not unchecked power. He explicitly says that a strong executive must still be “dependent on the people” and “responsible” for their actions. In other words: not a king, and not immune.
The theory also falls apart if you read Federalist 69, where Hamilton draws a clean line between the president and the British monarch. He notes the president can’t declare war, can’t appoint without Senate approval, and serves at the pleasure of the electorate—not by divine right.
And then there’s Federalist 77, where Hamilton seems to suggest that removal might also require Senate involvement. UET scholars tend to leave that one out.
So let’s be clear. Federalist 70 is not a permission slip for authoritarianism. It’s an argument for a president who can act, but must answer.
Ah yes. The six words they build the whole empire on. “The executive Power shall be vested in a President…” This is their Excalibur. They read it as a kind of blank check: everything “executive” belongs to the president, and whatever he claims as executive becomes his.
Except that’s not how it works.
If the Vesting Clause was meant to do all that heavy lifting, why does the Constitution go on to list specific powers? Commander-in-chief, appointments (with Senate consent), pardons, receiving ambassadors. That’s not a grab bag—it’s a job description.
Compare Article I: “All legislative Powers herein granted…” Congress gets only what’s listed. But somehow, when it comes to the president, six vague words mean everything?
That’s not textualism. The Founders didn’t believe “executive power” meant one man gets to control everything. That’s what they were fighting against. That’s the entire point of not having a king.