My regular readers know that I see a number of left-wing legal writings from day to day. One of the more sane (from time to time) pundits is Ilya Somin of George Mason University. In his latest piece, he bemoans the “Perils of the Unitary Executive Theory.” He begins by saying,
The originalist case for a unitary executive falls apart in an era when many of the powers wielded by the executive branch were not originally supposed to be federal powers in the first place.
For those who didn’t major in Constitutional Law, Somin is referring to Article II, § 1, Sentence 1, which says, “The executive Power shall be vested in a President of the United States of America.” That’s pretty simple. And it is, as the Supreme Court loves to say, “Black Letter Law.”
Further, in more words from the Court, it is “unqualified.” That means that all power in the Executive Branch belongs to Donald Trump. No “ifs,” “buts,” or “excepts.” “All” means “all.” Put bluntly, as long as he occupies the White House, every bureaucrat is obligated to do what he says. If you don’t like it, then “You’re fired!”
This isn’t complicated, and as push comes to shove, all the Supreme Court needs to do is look at the language of the Constitution. In every case, Trump wins. Even Somin admits that “he is supposed to have all the power given to the executive branch, except such as is specifically allocated elsewhere in other parts of the Constitution.” The next step is where Somin goes off the rails. He confuses proximate and ultimate causation.
Somin is correct that the Executive branch wields great powers that were not envisioned in the original discussions around the Constitution. In this, he agrees with James Madison in Federalist 41. Madison states that using the general welfare clause (Article I, § 8, Clause 1) to allow the government to “exercise every power which may be alleged to be necessary for the common defense or general welfare” is a “stooping to…a misconstruction.”
Madison goes on to state that logically, the enumerated powers that follow the general welfare clause explain what the clause means. In short, if it’s not in that detailed list after the General Welfare Clause, the federal government isn’t supposed to do it.
When I asked ChatGPT when this changed, it pointed me to United States v. Butler (1936), where the Court said, “The power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”
You can take your jaw off the floor now. During the New Deal under FDR, the Supreme Court threw the entire concept of enumerated powers out the window. This was set in concrete with Helvering v. Davis (1937), which explicitly allowed Congress to use the General Welfare Clause to do almost anything it wanted to do with your tax dollars.
As for the President’s management powers, most of the questions are unanswered. Myers v. United States (1926) clarified that the President has the freedom to fire any official he nominated, and the Senate confirmed. Then Humphrey’s Executor v. United States (1935) limited his removal power for certain specific officials. Morrison v. Olson (1988) basically echoed Humphrey’s Executor for Special Counsels. Seila Law v. CFPB (2020) and Bessent v. Dellinger (2025, DC Court of Appeals) have both chipped away at Humphrey’s Executor, and many legal observers are suggesting that the Court is looking for a way to put it six feet under.
What does this all mean for President Trump’s actions to fire lots of bureaucrats? For almost a century, Congress has felt free to create and fund lots of agencies and the cronies to operate them. This becomes a great feedback loop where more bureaucrats discover more “needs” for Congress to answer.
And with little or no pushback from anyone in the White House, the Federal Government and debt have exploded. Then a true outsider showed up. He was stymied by a Swamp more impenetrable and Dismal than he ever imagined. Even his own Vice President has now been proven to be part of the enemy swarm.
This swamp so bad off that Man Thing refuses to stay and Swamp Thing already moved out