Day: June 18, 2025

In “Democratic Efficacy and the Unitary Executive,” James G. Rogers argues that the unitary executive enhances the democratic accountability of the presidency.

Rogers defines unitary executive, however, as only extending to the president’s constitutional right to remove inferior officials. But as a matter of theory, we cannot divorce the independence of the executive branch from its substance. While the Framers wanted to restore unity and independence to the executive branch, they also remained focused on the actual powers to be given to the president. In The Federalist Papers, Alexander Hamilton observed that the president had to be directly elected, for example, rather than chosen by the legislature, and should be one man, rather than multiple leaders, to allow the executive to act with energy and speed. But Hamilton also wrote there that the president would possess well-understood powers, even in—or especially in—the area of foreign affairs and national security. “Of all the cares or concerns of government,” Hamilton wrote in Federalist #74, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”

The very theory of constitutional interpretation that established the unitary executive did not arise in the context of the removal power. The logic, announced most spectacularly by Justice Scalia in his dissent in Morrison v. Olson, maintains that Article II, § 1’s Vesting Clause grants all of the federal executive power to the president alone, subject only to narrow, explicit exceptions in the text itself. Under the pseudonym of Pacificus, Hamilton advanced the theory in defense of President George Washington’s declaration of neutrality in the wars of the French Revolution. The authority to proclaim neutrality did not depend on the president’s power of removal, but on an implicit executive authority to set and conduct foreign policy on behalf of the nation.

The story of the presidency has not been one of whether the president is really the chief human resources officer of the executive branch. The central element of the presidency has been the growth of its executive powers, not its powers of management. The Framers created the presidency so that a branch of the government would always be “in being” and could exercise substantive powers in times of crisis and emergency. Indeed, the basic theory of the unitary executive was born not out of a debate over removal, but over President Washington’s declaration of American neutrality during the wars of the French Revolution. Our greatest presidents failed because they carefully husbanded the removal power, but because they responded to great challenges using every tool at their disposal, including their substantive powers as chief executive and commander in chief. Authority through the removal and command of subordinates, no doubt, was an element of executive power, but it was secondary to the more important issue—the scope of the president’s constitutional authorities.

It is true that the revolutionaries rebelled against King George III and his perceived oppressions of the colonies, but it does not follow that they opposed the idea of executive power. To most of those who gathered in Philadelphia in the summer of 1787, post-Revolutionary efforts by the states to allow only weak executives with fragmented functions and powers had largely failed. Undermining the integrity of the executive branch had led to unstable, oppressive legislatures. The drafters of the Constitution came to Philadelphia in large part to restore the independence and unity of the executive branch—a republican, not a royal, restoration.

Independence put American theories of governance to the test, and they failed miserably. The Revolutionaries established one national charter, the Articles of Confederation, which soon proved crippled from lack of executive organization and leadership. The revolutionists wrote their state constitutions to undermine the structural integrity of the executive branch, and the results were legislative abuse, special-interest laws, and weak governments. Dissatisfaction with this state of affairs, even in a postwar time of relative peace and prosperity, led American nationalists to draft a new Constitution that would create a stronger, more independent executive branch within a more powerful national form of government. 

Why? As Gordon Wood has argued, the Framers believed that the 1776 constitutions had been the product of excessive revolutionary fervor. Unchecked by independent executives and judiciaries, the state legislatures had passed legislation infringing property rights, cancelling debts, and oppressing minorities. Factions, or special-interest groups, working at the expense of the broader public, had arisen. Unrestrained democracy had produced sharp and abrupt swings in policy that destabilized the newly independent states. The movement to restrain out-of-control legislatures, at both the state and national levels, proved so strong that Wood has likened it to a “Thermidorian” reaction. The object of this constitutional counterrevolution was a restored executive to check the excesses of the legislature, control law enforcement, appoint and manage government personnel, and conduct war and foreign relations.

The revolutionary state constitutions had created obstacles to good government, persuading the Convention delegates that a strong executive and republican government were not incompatible but mutually reinforcing. “A feeble execution is but another phrase for a bad execution,” Hamilton argued in Federalist #70, “and a government ill executed, whatever it may be in theory, must be in practice a bad government.” “Good government” required “energy in the executive,” and a vigorous president was now seen as “essential to the protection of the community against foreign attacks” and “the steady administration of the laws.” 

It would be short-sighted to focus only on unity and independence to the exclusion of one of Hamilton’s other pillars—competent powers. In beginning his discussion of the president’s powers in Federalist #72, Hamilton observed that the “administration of government” falls “peculiarly within the province of the executive department.” It included the conduct of foreign affairs, the preparation of the budget, the expenditure of appropriated funds, the direction of the military, and “the operations of war.” Chief among the president’s enumerated powers was law enforcement. “The execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate,” Hamilton observed. The general grant of the executive power and the duty to “take Care that the Laws be faithfully executed” both restrict and empower the president. They make clear that the president cannot suspend the law of the land at his whim, as British kings had, but they also give the president authority both to enforce the law and to interpret it. Enforcing the law gives the president the right to compel the obedience of private individuals and even states to the Constitution, treaties, and acts of Congress.

At the time of the Constitution’s framing, executive power was also understood to include the war, treaty, and other general foreign affairs powers. Political theory developed by thinkers such as John Locke, Baron de Montesquieu, and William Blackstone, as well as Anglo-American constitutional history from the seventeenth century to the time of the framing, established that foreign affairs were the province of the executive branch of government. Hamilton and the other Federalists did not look to the executive to manage war and peace for tradition’s sake. They understood the executive to be functionally best matched in speed, unity, and decisiveness to the high-stakes nature of foreign affairs. Threats to national security led to greater centralization of foreign affairs power in the executive. Article II gave the president the roles of commander in chief and chief executive. “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand,” Hamilton wrote in Federalist #74. “The direction of war implies the direction of the common strength,” he continued, “and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”

Rogers only incompletely advances the idea of a unitary executive. He argues for “unitary,” but not for “executive” in full. “The Executive Power,” as vested in the president by the Constitution, encompasses much more than managing federal employees. Article II vests powers of substance that come to the fore during crises. Some of our greatest presidents have accessed those grants to the great benefit of the nation, such as Washington in declaring neutrality, Jefferson in buying Louisiana, Lincoln in winning the Civil War, and FDR in preparing for World War II. Presidents can err when they misread conditions or turn their powers to purposes not envisioned by the Constitution. But as our nation struggles yet again with unprecedented threats to our national security, the need for the Constitution’s executive power becomes clear.

In a ruling with sweeping implications for environmental law and infrastructure development, the US Supreme Court recently overturned a lower court decision that had halted the Uinta Basin Railway—a proposed rail line linking Utah’s oil-rich Uinta Basin to the national freight network.

The high court’s decision not only revived a major energy project but also corrected a troubling trend: the misuse of the National Environmental Policy Act (NEPA) to obstruct economic development through ever-expanding regulatory demands.

The legal battle was years in the making. In 2021, the US Surface Transportation Board (STB) approved the railway, which would serve an area accounting for 85 percent of Utah’s oil and gas production. But in 2023, the US Court of Appeals for the District of Columbia blocked the project, ruling that its environmental impact statement (EIS) was insufficient. “It is clear that the Board failed to adequately consider the Rail Policies and ‘articulate a satisfactory explanation for its action,’” the court wrote.

The Seven County Infrastructure Coalition—a group of eastern Utah counties backing the railway—vowed to appeal. Meanwhile, environmental activists hailed the ruling, calling the project “a financial boondoggle and a climate bomb.”

Their celebration, however, was short-lived.

Last month, in Seven County Infrastructure Coalition et al v. Eagle County, Colorado, the Supreme Court unanimously overturned the DC appeals court in a ruling that will rein in judicial overreach under NEPA—a law that environmental groups and judicial activists have used not as a constitutional tool for environmental safeguards, but as a means to delay or derail infrastructure and energy projects altogether.

Who Gets to Decide?

Though environmental groups labeled the Uinta Basin Railway project a “climate bomb,” it’s important to note that the project was simply a proposed railway. The proposed project doesn’t involve new drilling permits or additional oil wells, just an 88-mile stretch of railroad through an expanse of desert. But as the Salt Lake Tribune noted, the project stood to triple oil exports from the basin—from 90,000 barrels a day to as much as 350,000.

In other words, the primary sin of the project was that it would result in increased output and transportation of oil and natural gas, which environmental groups argued could harm the environment.

At the center of the legal dispute is NEPA, the 1970 law signed by President Richard Nixon that requires federal agencies to examine the environmental impacts of infrastructure projects.

In the Seven County case, the STB concluded that the economic benefits of the railway project outweighed its environmental costs. The DC court said the STB couldn’t know if this was actually the case, since it did not sufficiently analyze the “upstream” and “downstream” environmental impacts of increased oil and natural gas transportation and production.

The STB, however, said these matters were out of its jurisdiction, stating it had “no authority … over development of oil and gas in the Basin nor any authority to control or mitigate the impacts of any such development.”

“Severe Difficulties” Satisfying Courts

Like many constitutional issues, the Seven County case comes down to a simple question: who gets to decide?

This is not always an easy question to answer. The US constitutional system was designed to be one of checks and balances, and recent history shows every branch of government has been prone to stepping outside of its constitutional authority.

Law professor Mario Loyola last year noted that the Seven County case is in some ways the mirror of the Supreme Court’s 2024 decision to abandon the “Chevron deference” doctrine, which had given agencies leeway in interpreting statutes. “If deciding questions of law is the province of courts under the Administrative Procedure Act (APA),” wrote Loyola, “technical and policy judgments are the competence of administrative agencies—so long as they are acting within their jurisdiction and expertise.”

Loyola makes a good point. Courts should retain primary authority when it comes to interpreting the law, while agencies should be granted leeway in making technical or policy decisions—provided they operate within the bounds of the law. Historically, however, this has not been the way NEPA has been enforced.

Writing at The Atlantic, Nicholas Bagley points out that almost immediately following the passage of NEPA, the US Court of Appeals for the DC Circuit took executive branch officials to task for approving a nuclear plant in Maryland without taking sufficient consideration of potential environmental harms. A flood of court orders followed.

“Within a couple of years, judges blocked construction of a huge oil pipeline in Alaska; delayed highway construction in Arlington, Virginia; and stopped a new dam in Arkansas,” Bagley writes. “Orders halting projects such as nuclear-power plants and forest-timber sales soon became routine.”

In response, federal agencies beefed up bureaucracy. Thousands of experts were hired, environmental reviews became longer, and public review times were extended. Bagley argues these changes were healthy to a certain extent, but came with costs. “Within just a few years,” he writes, “close observers were warning that agencies faced ‘severe difficulties’ in their efforts to satisfy the courts.”

The Uinta Basin Railway is an example of the “severe difficulties” federal agencies face in approving even minor infrastructure projects.

Consider that the STB initiated its environmental impact statement in June of 2019. An initial draft was released in October 2020, which was followed by a four-month public comment period that included half a dozen public meetings. By the time the EIS was completed in August 2021, it was 3,600 pages long and included 1,900 public comments.

The STB spent 26 months on its EIS only to have a federal court say it was “insufficient”—all over an 88-mile railroad through the desert.

A Supreme Reversal

When litigation is included, the environmental and legal process for building Utah’s small rail line will have taken longer than it took the federal government to construct the Hoover Dam.

For decades, scholars have criticized the EPA for overreach—and often with good reason. But activist courts have also played a major role. Indeed, NEPA had become one of the most powerful weapons environmental activists (and judges) possessed for killing infrastructure projects. Bagley notes that for judges “taken with the promise of the nascent environmental movement,” NEPA was “a perfect tool.”

Fortunately, in an 8-0 decision (Justice Neil Gorsuch did not participate), the Supreme Court reminded lower courts of their proper role in a monumental ruling on May 29, emphasizing that it is federal agencies—not judges—that are responsible for evaluating the environmental impacts of projects:

Under NEPA, agencies must consider the environmental impacts for which their decisions would be responsible. Here, the Board correctly determined it would not be responsible for the consequences of oil production upstream or downstream from the Railway, because it could not lawfully consider those consequences as part of the approval process.

Those words came not from Justice Brett Kavanaugh, who authored the majority opinion, but from Justice Sonia Sotomayor—arguably the most liberal member of the Court—writing in a concurring opinion joined by Justices Kagan and Jackson.

Environmental groups that wrongly view fossil fuels as inherently harmful may bristle at Sotomayor’s decision. But the Court rightly held that NEPA was never intended to serve as “a substantive roadblock” to economic development. Yet that’s exactly what NEPA became, as environmental groups turned to the courts to halt projects they opposed under the guise of judicial review.

For years, some federal courts played along, taking “an aggressive role in policing agency compliance” and effectively paralyzing executive agencies. The Court’s majority offered a reset, laying out a more “straightforward” framework for NEPA cases going forward.

“Courts should review an agency’s EIS to check that it addresses the environmental effects of the project at hand. The EIS need not address the effects of separate projects,” Kavanaugh wrote. “In conducting that review, courts should afford substantial deference to the agency as to the scope and contents of the EIS.” 

The Court’s ruling couldn’t come at a more critical time. The US faces an uncertain energy future. To avoid a surge in energy costs, the country must access its resources and rapidly expand its power capacity.

The Supreme Court’s ruling is a step in this direction. At the same time, it restores a measure of constitutional clarity. By overturning the DC Circuit, the high court affirmed that judges cannot impose open-ended environmental mandates beyond their statutory authority.

NEPA may indeed have been “the perfect tool” for environmental groups seeking to thwart infrastructure projects they opposed—but after the court’s ruling, they’ll have to dig deeper into their toolbox.