Trump, Hegseth, and the Fallacies of the Unitary Executive

The Unitary Executive Theory holds that the Article II of the Constitution creates a hierarchy. The president sits at the top of the hierarchy and bears the responsibility for overseeing enforcement of federal law. The UET has been embraced by the Federalist Society, as well as conservative (and some liberal) law professors, judges, and of course, presidents. Donald Trump is merely the latest president to find the UET attractive. What makes Trump unique is the breadth that he seems to think the UET affords him.

At the core of the UET is the idea of democratic accountability.

The argument usually takes the following form: Article II of the Constitution vests “the executive power” in a president. It is not possible for a single president to exercise all the executive power of the federal government. Therefore, the president must rely on subordinates such as agency heads and Cabinet members to exercise some of that power. Because the president is delegating some executive power to these officials, he must be able to hold them accountable through removal.

This is the normative argument for the UET. It sounds democratic in theory—the people vote for the president and thus expect the president to be held democratically accountable. Following on this rationale, supporters of the UET have questioned the constitutionality of independent agencies, like the Federal Trade Commission, whose leaders can only be fired “for cause.” The Trump administration also seems to believe the civil service is unconstitutional by this logic.

Aside from the well-documented historical problems, recent events involving Pete Hegseth, Tulsi Gabbard, Mike Waltz, J.D. Vance, and Donald Trump have laid bare the fallacies of the normative argument for the UET.

On March 24, Jeffrey Goldberg of the Atlantic reported that he was (inadvertently?) included in a Signal group chat with Pete Hegseth, J.D. Vance, Michael Waltz, Tulsi Gabbard, Marco Rubio, and other members of the Trump Administration. In the chat, members of the Administration discussed secret plans involving U.S. military strikes in Yemen, targeting the Houthis.

Later that day, President Trump was asked about the reporting in a press conference. Trump claimed he was unaware of both the Atlantic’s reporting, as well as use of Signal by his top national security officials. When pressed about both, Trump replied “…I know nothing about it.”

As of now, none of the Trump Administration officials have been removed from their positions.

What does this say about the normative argument for the UET?

Trump’s calls to dismantle the unaccountable “deep state” ring hollow when his Cabinet members have not, as of yet, been held accountable for endangering American lives. Trump ascended to the presidency on promises to “drain the swamp” and on fearmongering about the deep state. During the Biden presidency, around four million people worked in the executive branch, including members of the military. This includes agency and department heads, as well as civil servants. Even with perfect, abundant information, no single president can supervise that many people.

In this instance, it appears Trump was entirely unaware that his national security team was using Signal to communicate. Either Trump was, in fact, unaware, or he was lying to the press in an attempt to control the damage. Whatever the truth, Trump’s response is wholly inadequate in addressing the incompetence of his Cabinet.

To make matters worse, not only were Hegseth and others, using Signal, but they arguably were doing so in violation of 18 U.S.C. § 793(f), which makes it a crime for any person entrusted with material “relating to the national defense” to allow such material to be “delivered to anyone in violation of his trust” through “gross negligence.” Here, administration officials could be guilty of disclosing information to Mr. Goldberg and the Atlantic. I do not have the expertise on this statute to say whether this could be proven in a court of law. But the mere possibility that members of Trump’s national security team violated federal law in such a haphazard way, is bewildering to say the least.

So here we are. The UET prescribes a democratically responsive president who must take care that the laws are faithfully executed. This, of course, includes holding accountable those government officials and employees who endanger Americans or violate the law. Instead, we find the very people who already serve at the pleasure of the president breaking those laws and putting American lives at risk. Yet no accountability for these violations of the public trust appears to be forthcoming.

Featured image is Pete Hegseth, by Gage Skidmore