Tuesday, February 11, 2025

Part I

---

A Unitary Executive and Energy in the Executive: President Trump Looks to Push Supreme Court to Define the Role of the President of the United States

What in the world is going on in Washington D.C.? We have a flurry of executive actions, presidential policies, directives coming from the White House. We have pushback, at least some pushback, from Democrats and government. We have some pushback from federal courts, lower-level courts at this point, basically district court judges. But we’re also looking at a far larger question. What is President Trump up to? What is behind all of this, and where are we headed?

Here’s one thing for certain. We are headed into a thick, very substantial, constitutional debate, and I think a healthy one. And we need to understand as we’re trying to think in worldview terms about what’s going on and how we got here, we need to think at a deeper level than most people are thinking. We need to see things most people aren’t seeing when you look at the flurry of headlines coming out of Washington D.C.

What is this? Merely an energetic president? It is interesting that President Trump clearly in his second term, sees himself offering a contrast to a non-energetic presidency before him. He will talk about Sleepy Joe referring to former President Joe Biden. And already, President Trump has initiated so much in terms of action. He has demonstrated so much energy just on a plane ride from West Palm Beach to New Orleans for the Super Bowl. He invited the press up to his cabin in order to hold an impromptu press conference. He did the rather traditional presidential media interview there, broadcast just before the Super Bowl, something President Biden hadn’t done the last two years in office. He is asserting energy in the executive.

Where does that come from? It comes from Alexander Hamilton. It comes from The Federalist Papers. It comes from Hamilton’s argument accepted by the Founders that the American presidency only works if the president exercises energy, demonstrates energy in the executive. The president must not be merely a responder to actions undertaken by Congress, the president must be an initiator of ideas and policies and actions.

But there’s something else going on here, and it isn’t something discussed widely in terms of the mainstream media because they’re never going to go this deep. It is something that isn’t noticed by most Americans because they’re not looking for this. There’s a major constitutional debate that is shaping up. And President Trump knows that that debate is coming. And his actions, including the actions we talked about yesterday on The Briefing, having to do with eliminating transgender activism in government, and let’s just say protecting girls and women’s sports, those executive orders, a flurry of executive orders, what’s the president doing?

The president is implicitly arguing for a unitary executive, not only for energy in the executive, but a unitary executive. If that sounds abstract, I assure you it is not. And I can also assure you that it really matters. The idea of the unitary executive is the assertion that the president of the United States has full authority to execute, has full authority over the executive branch. And recognize it or not, this is a huge issue, and as Christians, we should see a great deal here.

Let’s just go to the Constitution of the United States for a moment. In the Constitution, what, for example, is assigned to Congress? There is a Vesting Clause in the Constitution, under Article One, in which Congress is vested with the powers to do what? To exercise, “all legislative powers herein granted”. The statement states explicitly, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” So, what’s vested in the House, in the Senate? What’s vested in Congress? All legislative powers within those two words “herein granted,” granted explicitly in the Constitution. The Vesting Clause for Congress says that Congress has full legislative authority for all matters granted within the Constitution.

Then turn to the Vesting Clause under Article II related to the president of the United States. What does the Constitution state? The sentence simply reads, “The executive power shall be vested in a president of the United States of America.” Notice not just what’s there, notice what’s missing. The words “herein granted” related to the Constitution itself are not included in the Vesting Clause for the president of the United States. This is not a recent constitutional interpretation. This is the text of the Constitution from its original form, continuing even now. The Vesting Clause simply invests in the president the executive power of the United States government.

There is a second clause under Article II related to the presidency. This also comes up. We are told that the president, “shall take care that the laws be faithfully executed and shall commission all officers of the United States.” That’s a massive power. It is a responsibility to take care that the laws be faithfully executed. That’s assigned to the president. It’s known as the “Take Care Clause.” So, you have the Vesting Clause earlier in Article II. Later under Section III, you have the Take Care Clause. Both of them invest enormous responsibility in the president and, frankly, enormous power and authority in the president.

The president of the United States is given sole power to commission officers of the United States. Some officers? No, all officers. Period. If such officers are not directly appointed or nominated by the president of the United States, then they are done by others in his administration on his authority. This is an absolute power. It’s a sole power given to the president of the United States in the Constitution. What is going on here is the assertion of an idea known as the unitary executive. And you say you haven’t heard of that before? You’re probably going to hear about it, but if you don’t, I can guarantee you that the Supreme Court of the United States is going to have to deal with it.

President Trump and his administration have been handing down all these executive orders, so many of them are already headed to the courts. That is not outside the President’s plan. I think President Trump wants a big Supreme Court case to force the Supreme Court of the United States to define the presidency in terms of the Constitution and his assertion of the unitary executive. This turns out to be a very interesting issue. And what you really have here is a huge question of constitutional importance.

But let’s back up for a moment. Let’s think as Christians about the importance of our constitutional order and let’s understand the principles that were behind it, and these are principles that were deeply rooted in biblical truth, in Christian teaching. One of them is that, given the doctrine of sin, we ought not to vest in any single individual or any single body absolute authority. There need to be checks and balances. And so, the doctrine of the separation of powers enters into the American constitutional system. There was a separation of powers of sort in British constitutionalism or, as it was referred to then, English constitutionalism, but never as formalized as is present in the United States under our constitutional order, and of course, with a hereditary monarch as head of state rather than an elected president of the United States.

In one sense, our constitution offers a unitary executive, simply by definition. The most important unity is the fact that under the American system you have the head of state and the head of government as the same individual. In Britain, the king or the reigning monarch is the head of state. The prime minister is the head of government. There’s the division. In the United States, that is not the division. The head of state and the head of government are the same person. But the division of powers, the separation of powers comes with the three great branches of government.

You have the executive. Before that you have, in constitutional priority, the Congress of the United States of America, the legislative branch. And then you have the judicial branch, most importantly, the Supreme Court of the United States, but also all lesser federal courts. You have the legislative, the executive, and the judicial. No one’s really arguing too much about Congress’s authority to be Congress. There’s not too much debate about the Supreme Court’s responsibility to be the Supreme Court. 

Part II

---

We Have a Fourth Branch of Government? – The U.S. Has an Ever-Growing Administrative State, and It’s a Massive Issue

The question is, how exactly does a president serve as president? What exactly does the presidency mean in the year 2025? Why are we even saying it could be different? It is because in the view of many progressives or liberals, effectively there are four branches of government. You have the legislative, that’s Congress. You have the executive, that’s the president. And you have the judicial, that’s the Supreme Court of the United States and all lesser courts. What’s the fourth branch of government? It is, and this is where conservatives have learned how important this is, there is claimed by some people basically a fourth branch of government, which is the administrative state. President Trump and others will refer to it as the “deep state.” It is this non-constitutional, but very real body of so many federal bureaucracies, so many administrative offices, so many federal officials, so many bureaucrats, this extensive system of federal commissions and agencies and all the rest that seems to exist now as if it has a life of its own.

What’s really interesting is that when you see many people, particularly Democrats complain about actions taken by President Trump, they’re saying that he is exercising authority that is not his, but belongs to some kind of federal administrator. President Trump is responding with the theory of the unitary executive, and that is simply to say, according to the words of the Constitution, all those people work for me. Period.

We’ve got to get in some of the weaves of history, but I promise you, it’s really interesting. Where does the idea of the administrative state come from? Don’t look to Washington, don’t look to New York, don’t look to, say, Berkeley, California. Look to Berlin, look to Germany. Look to the 19th century and look at Chancellor Bismarck, Otto von Bismarck, the Chancellor, the Iron Chancellor of Germany.

How did he intend to bring Germany into the modern age? By creating, alongside the monarchy and alongside the legislature, basically a third branch of government there in Germany, which was the administrative state, a body of professionals, of experts, given to wissenschaft and expertise. They would have power, enormous power. The legislature would grant the bureaucracy this kind of power, then stand back because the legislature is going to be made up of experts. And the legislature is not made up of experts, it’s made up of legislators.

And then, even as you would have a chancellor, Bismarck was himself the Iron Chancellor by reputation, as well as having a monarch at that time in Germany, the reality is that the administrative state was Bismarck’s way of professionalizing government and bringing government as he saw it into the modern age with, don’t miss this, German efficiency. So, there was a sense in which this professionalization of the government there in Germany appeared to be quite efficient. Efficiency turned out to be not such a good word throughout much of the 20th century when combined with German aims. But nonetheless, Americans saw it and were impressed. Not just Americans, other Europeans saw it and were impressed.

One American who saw it and was mightily impressed was a professor, basically you could say of political science. A professor of political science named Woodrow Wilson, who later would become president of Princeton University, governor of New Jersey. And then in the early years of the 20th century, he would be elected the president of the United States. He had argued in his own lectures and in his books, already at the end of the 19th century, that the American constitution was basically out of date and that it was not made for a modern state. His way around it was to create the administrative state within the state.

It would be, as in Germany, a regime of experts. It would be largely independent of political scrutiny, because after all, you’d have government experts. They’re the experts. What could the legislators say in contrast or in contradiction to the experts? They’re not experts. So, it was a huge shift in government, not only in Germany, but later in the United States, especially under two democratic presidents, especially under Woodrow Wilson and later, Franklin Delano Roosevelt. You had this vast expansion of the federal government.

Let me just say, that was not without some apparent justification at the time. There were very real needs that it appeared the American government could fulfill. There were modern roles the American government could fulfill, but it needed to hire a lot of people. It needed to man a lot of agencies. It needed to create a lot of personnel. It needed a lot of policies. And increasingly, that would expand the federal budget and it would also expand the authority, or at least the power of the federal government. Some of this was seen as necessary. You have great challenges. You have the challenges of the modern age. You have the challenges of modern railroads. You have the challenges of a modern economy. You have all kinds of issues.

You also have accelerants in terms of the development of the administrative state. Those accelerants, going back to the 19th century, would include the Civil War, and they especially would include World War I and World War II. As you look at the war expanding federal power, just take in view of the fact that the United States was responding to these very real military threats, and it had to create this great superstructure in order to be effective in creating a modern war machine. And of course, the problem is that that machine continues after the war is over, and then such things as the Cold War simply gave impetus.

But it was also the New Deal. Under Franklin Delano Roosevelt, it was the expansion of the federal government, and of course, it just grew and became even more expansive. And in the modern scientific age, the experts just became more and more numerous and they both grabbed and were effectively given more and more authority. By the time you get to the new frontier of John F. Kennedy and the Great Society of Lyndon Johnson, even the administration of Richard Nixon, you see this vast expansion of the bureaucracy. You see this vast expansion of the administrative state.

But this is where Christians understand that the reason we have the separation of powers that’s deeply rooted in our understanding of sin, the last thing you want to do is concentrate power unchecked, authority uncontrolled, because that will grow malignant. And that’s exactly what many would argue has taken place with the administrative state. It’s not neutral. It’s not just a bunch of experts making expert decisions in an expert way. It is driven by ideology and increasingly, here is what’s key, it is driven by its own self-interest.

As many have observed, here’s the problem with the administrative state. Eventually the administrators work for themselves in one sense. The administrative state exists to provide the jobs for administrators, and not only that, to push certain ideological principles asserted by those administrators through the entire system without adequate checks and balances. Where’s the president of the United States? Oh, he is to present the budget. He is the chief executive, but the administrative state is largely beyond his control. And that has been the fact for the last several decades.

The administrative state, what President Trump sometimes refers to as the deep state for good reasons, it has continued to expand. It has ever more powers, ever more agencies. The alphabet is just about to run out of elasticity in coming up with initials for all of these agencies. We are looking at a vast power, but it isn’t exactly in the legislative branch. The legislators don’t have that kind of authority. And it isn’t in the judicial branch, so supposedly it’s a part of the executive branch. But notice how many people don’t think the president has executive authority over these agencies.

Already even in the 1970s, but particularly in the 1980s, conservatives were seeing the need for a reassertion of executive authority. And that’s where this theory of the unitary executive started to gain traction and with a name, so even during the administration of President Ronald Reagan, President Reagan’s frustration with this administrative state that seemed to have so much power and so little accountability. And by the way, President John F. Kennedy actually allowed them also to create labor unions or to join other labor unions, which when you think about it, means that you have public employees basically using labor unions to gain power over the public, which is the employer. It’s just a mess.

And even during the Reagan administration, there were those who were arguing for the unitary executive. But this is a principle. It’s an understanding of the Constitution, as I say, based in the text of the Constitution, in the “Vesting Clause” given to the president of the United States and in the “Take Care” clause. Now you have President Trump making similar kinds of arguments. One of the things he said was back in 2019, that’s when he was in his first term, he said, and many people didn’t understand what he was saying. As a matter of fact, there are some people who made fun of what he said, but they should have paid attention to the words. Here’s what he said.

He said, in 2019, “I have an Article II where I have the right to do whatever I want as president.” Not exactly an elegant statement. It’s not particularly helpful for the president to say, “I can do whatever I want to do because of Article II.” You can make that into a motto. The fact is, however, that the president was pointing to something, and that is that vested in the presidency, the office he held is the power fully to execute the executive branch of government, to act as executive over the entire government, and especially over the administrative state, which is not an unelected fourth branch of government. It isn’t a fourth branch of government. It’s not in the Constitution. If there is an administrative state and it’s somewhere implied in the Constitution, then it is under the executive. It can’t be anywhere but under the executive, and thus the Vesting Clause in the Constitution for the president means he has authority over the executive branch.

In the last several years, there have emerged two different variants of the theory of the unitary executive. You ought to get political science credit for this. The first is the strong view. And trust me, President Trump has the strong view, so does Russell Vought, the director of the Office of Management and Budget, who has articulated so much of this, and others around the president as well. You have the strong view, which is simply that the Vestings Clause and the Take Care clause invest ample and sole authority for the elected president of the United States to exercise executive authority over the entire executive branch. Period.

There are others who are saying, “Oh, there is a Vesting Clause, and there is something like a unitary executive implied in and required by the Constitution.” But they say, “Congress has the authority, through its own actions, to limit the president’s involvement in, or power over, certain of these principles.” And what Congress adopts the President does not have as the unitary executive, the power to change the laws unilaterally or to ignore legislative intent. That’s going to be eventually argued before the Supreme Court of the United States. I don’t have to be a prophet. You don’t have to be a prophet to see this coming. The president knows it’s coming, and at least many in Congress know it’s coming. And it’s probable, for sure, that the justices of the Supreme Court of the United States know that it’s coming.

In the background of Supreme Court jurisprudence, going back to, of course, the constitutional era, but even more in the background is a 1984 Supreme Court decision known as Chevron, in which the court argued for the usual deference to administrative authority. However, that has turned out to be a disaster. And it is likely that the conservative majority on the Supreme Court is eager to revisit the question. What’s at stake in all of this? In reality, our constitutional order is at stake. The definition of the presidency and the authority and powers of the presidency, all that is at stake.

Part III

---

The Reality of the Deep State: There Has to be a Circle Within a Circle Inside the Administrative State

But you also have at stake just the mechanics, the sheer mass of the federal government, and the reality of the administrative state. Niall Ferguson, very prominent historian, he has taught at Harvard. He, of course, is a major British historian. He has said that the president of the United States holds a unique position. “The president sits atop a sprawling org chart. There are 15 executive departments, 430 federal agencies, 229 agencies and 201 sub-agencies. The process whereby the executive branch constantly subdivides itself like some kind of rapidly growing cellular organism can be traced back to FDR”, meaning Franklin Delano Roosevelt. “Within the White House itself, there’s a National Security Council and a National Economic Council to name just two sources of presidential advice.”

He then writes this, and remember, he’s British, “The true role of the president is to try somehow to ensure that this vast array of institutions collectively functions in ways that vaguely resemble the platform he campaigned on.” He goes on, “More accurately, the president acts as the arbiter when the collisions between competing agencies cannot be sorted out within the bureaucracy.” He goes on to say, and I quote, “And this is just the executive branch.” 

President Trump has entered the White House in his second term with enormous energy. Look at all the executive orders, look at all his nominations. But hey, we do need to do a little math. Look what the White House is up against. Niall Ferguson gets it right. “Only a small fraction of key positions have been filled. Of the 1,300 that need Senate confirmation, we have six confirmed, 70 under consideration, 38 awaiting formal nomination, and 569 without a Trump nominee.” That’s to say the White House hasn’t even announced the nominees for 569 positions. Notice that the Democrats in Congress, particularly in this case constitutionally, the Democrats in the Senate, they want to slow things down as much as possible.

You look at the mechanics of all this, how in the world would the White House get almost 600 persons through the nomination process in any reasonable amount of time? Here’s what assuredly President Trump knows in his second term that he did not yet know in his first term, and that is, not only that he must exercise energy in the executive, but that time is against him. Time’s against him in the long frame and that he’s got four years in the second term, but in reality, what a president with energy is going to accomplish is basically going to be accomplished within his first two years. That’s not an ironclad rule of politics, but it’s pretty close to it.

I want to go back as I close to the reality of the administrative state. It’s not called for in the Constitution. It wasn’t envisioned in the Constitution. It is a modern development, but it is also true that we understand, given our understanding of sin, the danger of the coalescence of power and the reality of how organizations work in a sinful world, eventually, the administrative state begins to exist for the sake of the administrative state. And you also have persons who have a great stake in all of this. And one of the tentacles of all of this is that the administrative state has investments and programs, many of them doing important work, many of them just wasting money tied to just about every congressional district in the United States of America, in order to basically offer an insurance policy against congressional correction.

Every one of these programs has not only a life but a half-life. As someone mentioned some years ago, apparently it has an extremely long life, so much so that it outlives every single president, every single representative, every single senator, every justice of the United States Supreme Court. The administrative state is just there. In conclusion, what about a deep state? Is there some kind of secret cabal in the administrative state? The answer to that is assuredly, yes. That’s not a conservative conspiracy theory, that’s just a reality.

Inside anything this big with that much money, with this much personnel, with this much power, with this much decision-making, you look at it, you understand there has to be a circle within a circle within a circle. That’s just the way the world works. In a fallen world, that’s just what happens. Or put it another way: You know a preschooler? You get enough preschoolers together in one room, it may look absolutely random and disorganized, until over a period of time, you discover that there is a deep state in the preschool. Power to the people. As you know, there are worldview issues everywhere you look.