Morrison v. Olson and the triumph of the unitary executive theory

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

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Rarely has a solo dissent in a Supreme Court case eventually triumphed, but that is likely to happen as a majority of the justices appear poised to accept the “unitary executive theory” of presidential power. This is the view that the president has authority over the entire executive branch of government, including the ability to fire heads of agencies and any such government employees. 

But it should be remembered that when the court considered the unitary executive theory in the 1988 case of Morrison v. Olson, the justices, by a vote of 7-1, emphatically rejected it. Only Justice Antonin Scalia dissented and embraced it. His view is now likely that of the six conservative justices on the Supreme Court and may be adopted when the court considers two cases this term concerning presidential removal power: Trump v. Slaughter and Trump v. Cook.

Morrison v. Olson

Although there have been advocates of expansive presidential power since early in American history, the unitary executive theory stems from the work of young lawyers – including John Roberts and Samuel Alito – in the Reagan administration. Their argument – and the central claim today – is based on the language of Article II: “The executive Power shall be vested in a President of the United States.” Supporters of the unitary executive theory say that this provision, often called the “vesting clause,” places the executive power in the president of the United States.

But opponents of this theory say that the language of Article II just names the chief executive; it is “president” and not “prime minister” or “czar.” Critics also express great concern that this theory unduly limits the ability of Congress to check presidential power. In fact, during Alito’s confirmation hearings for the Supreme Court in January 2006, several witnesses (including me) testified against him based on his embrace of the unitary executive theory and how that would undermine checks and balances.

The unitary executive theory came directly before the court in Morrison v. Olson, near the end of the Reagan presidency. The Ethics in Government Act of 1978 provided for the appointment of an “independent counsel” to investigate credible allegations of illegal conduct by the president or a high-level executive official. Upon request from the attorney general, a panel of three federal judges, who had been appointed by the chief justice, would select an independent counsel. Once appointed, the person serving in that role could be removed only for “good cause.”

Alexia Morrison was appointed as independent counsel to investigate three former high-level executive branch employees who refused to provide documents to congressional committees concerning the administration of the Superfund law, a major environmental protection statute. The subjects of Morrison’s investigation argued that the Ethics in Government Act was unconstitutional in both the manner of appointing the independent counsel and in the limits on removing that person from office.

The Supreme Court rejected these constitutional objections and upheld the act. Chief Justice William Rehnquist, a fierce judicial conservative, wrote for the court. As for the appointment power, he explained that Article II of the Constitution provides that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” The court found that the independent counsel was an “inferior officer” because she could be removed by the attorney general for good cause and because she possessed fewer powers than the attorney general. 

The challengers to the Act invoked the unitary executive theory in arguing that limiting removal to cases in which there is good cause impermissibly interfered with the president’s exercise of his constitutional powers and that the law violated the separation of powers by reducing the president’s ability to control prosecutions, which is the exclusive prerogative of the executive branch.

The Supreme Court expressly rejected these arguments. The court relied on two earlier decisions: the 1935 case of Humphrey’s Executor v. United States and the 1958 case of United States v. Wiener. In Humphrey’s Executor, the court unanimously upheld the ability of Congress to limit the removal of a commissioner of the Federal Trade Commission to “inefficiency, neglect of duty, or malfeasance in office.” In Morrison, the court explained: “In Humphrey’s Executor, we found it “plain” that the Constitution did not give the President ‘illimitable power of removal’ over the officers of independent agencies. Were the President to have the power to remove FTC Commissioners at will, the ‘coercive influence’ of the removal power would ‘threate[n] the independence of [the] commission.’”

In Wiener, the court went further and held that even without a statutory limit on removal, the president could not remove executive officials when independence from the president is desirable.

The court in Morrison also rejected the argument that the Ethics in Government Act violated the separation of powers. In disagreeing with the unitary executive theory, Rehnquist wrote, “we have never held that the Constitution requires that the three branches of Government ‘operate with absolute independence,’” and that “this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.”

Only Scalia dissented. In his opinion, Scalia expressly embraced the unitary executive theory. He invoked the language of the vesting clause of Article II of the Constitution: Scalia said “this does not mean some of the executive power, but all of the executive power.” According to Scalia, “[t]he purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom” from prosecutors with “vast power” and “immense discretion.”

Scalia triumphant?

Although Morrison v. Olson was a 7-1 decision, Scalia’s view – and the unitary executive theory – continued to resonate with conservatives. As a judge on the United States Court of Appeals for the District of Columbia Circuit, Brett Kavanaugh dissented in a 2018 en banc (full court) decision, endorsed the unitary executive theory, and cited Scalia’s dissent in Morrison approvingly. More recently, in the 2024 case of Trump v. United States, in according the president broad immunity from criminal liability for official acts, Chief Justice John Roberts stated in his majority opinion that “[t]he President ‘occupies a unique position in the constitutional scheme,’ as ‘the only person who alone composes a branch of government.’”

Since taking office, President Donald Trump has been emphatic that he regards Humphrey’s Executor as wrongly decided, that there is a unitary executive, and that he believes he has the power to fire anyone in the executive branch of government. On Tuesday, Feb. 18, the Trump administration issued an executive order, Ensuring Accountability for All Agencies, which declared that all federal agencies are under the president’s control. Specifically, it said that the president can fire agency officials without needing to comply with statutory limits on removal and that all agency employees must adhere to the president’s policies.

Several matters have since arisen on the emergency docket involving firings by Trump. In Trump v. Wilcox, the six conservative justices effectively allowed Trump to fire two officials despite statutes limiting their removal. Gwynne Wilcox was appointed to the National Labor Relations Board by President Joe Biden and confirmed by the Senate. Her term expires in 2028, and federal law provides that she can be fired only for “cause.” Cathy Harris is chair of the Merit Systems Protection Board and likewise under the federal statute can be fired only for cause.

Nevertheless, Trump fired both Wilcox and Harris without asserting any cause for their removals. The district court enjoined the firing, and the full D.C. Circuit affirmed that order. But the Supreme Court in an apparent 6-3 ruling on its emergency docket stayed the preliminary injunction, allowing Wilcox and Harris to be fired while the matter was being litigated. In a short opinion, the court stated: “Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedent.”

Justice Elena Kagan wrote a strong dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Kagan defended Humphrey’s Executor, stating that the decision “undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.” She wrote that the court’s “order allows the President to overrule Humphrey’s by fiat, again pending our eventual review.”

Then, in July, in Trump v. Boyle, the court effectively allowed the president to remove members of the Consumer Product Safety Commission, notwithstanding a federal law again limiting firing to when there is cause. Again, it was apparently 6-3, and in a short opinion the majority indicated that the lower courts should have applied the court’s ruling in Trump v. Wilcox.

Now the issue is before the court on its merits docket. In Trump v. Slaughter, to be argued on Monday, Dec. 8, the court will consider the constitutionality of the statute limiting removal of commissioners on the Federal Trade Commission, the very same statute that was involved in Humphrey’s Executor. Rebecca Slaughter, who had been initially appointed to the FTC by Trump, has a term that continues until 2029.  She was fired in violation of the law. The solicitor general’s brief urges the court to adopt the unitary executive theory. It asserts that “Article II grants the President conclusive and preclusive power to remove executive officers” and that “[j]udicial orders blocking the removal of executive officers violate Article II.”

On Jan. 21, 2026, the court will hear another case about the removal power: Trump v. Cook. Lisa Cook is a governor of the Federal Reserve Board and she, too, is protected by a statute that limits removal to where there is cause. Trump removed her, asserting that she engaged in mortgage fraud, though no court or agency ever has found any improprieties by Cook. Her case will not only raise the extent of the president’s power over executive agencies, but whether the Federal Reserve Board should be treated differently than other independent agencies.

Conclusion

It was not that long ago that the unitary executive theory was emphatically rejected in Morrison v. Olson in an opinion by Rehnquist, himself a conservative. The court’s current majority seems ready to undo Rehnquist’s work on that front, and to embrace Scalia’s dissent in Morrison calling for a more powerful presidency.