Gillian Metzger of Columbia Law School and Saikrishna Prakash of the University of Virginia School of Law join Jeffrey Rosen to examine the founders’ vision for the presidency, review how presidential power has changed over time, and debate the constitutional questions—including the unitary executive theory—that have shaped the modern presidency.
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Today’s episode was produced by Samson Mostashari and Bill Pollock. It was engineered by David Stotz and Bill Pollock. Research was provided by Cooper Smith, Gyuha Lee, and Samson Mostashari.
Participants
Gillian Metzger is the Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School, where she also serves as faculty director of the Center for Constitutional Governance. She has co-authored and filed numerous amicus briefs in major constitutional and administrative law challenges before the Supreme Court and other courts, and previously served as acting assistant attorney general and deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice.
Saikrishna Prakash is the James Monroe Distinguished Professor of Law at the University of Virginia School of Law. He is the author of The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers and Imperial from the Beginning: The Constitution of the Original Executive. He has testified before Congress on matters of presidential removal, the Mueller Report, how Congress might better check the presidency, and the nomination of Judge Amy Coney Barrett to the Supreme Court.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Federalist No. 70, New York Packet (March 18, 1788)
- Myers v. United States (1926)
- Trump v. United States (2024)
- Saikrishna Prakash, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, (2020)
- Saikrishna Prakash, Imperial from the Beginning: The Constitution of the Original Executive, (2015)
- Gillian Metzger, “Disqualification, Immunity, and the Presidency,” Harvard Law Review, Vol. 138 (April 1, 2025)
Excerpt from interview: Gillian Metzger outlines arguments against the unitary executive theory, asserting that Congress has the power to constrain an expanded presidency.
Gillian Metzger: This is not limited to originalists. This is sort of just as you point out, those who challenge the unitary executive view would argue that Congress has very broad power to structure the executive branch. And it is, I think, significant that the powers that have been delegated, particularly on the administrative side, to the executive branch, have been delegated in the form of powers to particular agencies and to secretaries and with procedures attached and with specific instructions attached and so forth. And a whole apparatus which includes a number, a vast number of employees with some form of removal protection, think the civil service. And as well as some independent agencies protected at the top.
You also have, of course, the vast array of the workers in the government participating in the civil service. And indeed in the New Deal period, when you have much of the expansion to what we now consider the modern administrative state, you have those who are arguing for a little bit clearer presidential control at the top, like the Brownlow Commission, also really emphasizing the importance of civil service. So I think these things go together that when you're delegating broader power, it's even more important that you have those checks and constraints on the executive branch as a way of trying to constrain it and all of that are things that are enacted by Congress.
The other thing that's interesting to focus on historically is how little the Supreme Court was involved in all of this over time until particularly recently. You had Myers, you had Humphrey's Executor, then you had Morrison. That's a big gap between Humphrey's Executor and Morrison, and that's 50 years. And then in between Morrison and the 2010 decision, that's another what, 40 something years. And a lot of this was really worked out politically through Congress and the executive branch negotiating and agreeing on measures. And part of what has happened is, among other things, with Congress's inability to act in depolarization divisions, more pressure on the executive to assert more unilateral power, more expansion of power in the executive branch, and also a turn towards challenging those basic administrative structures that had always been there to sort of curb in the kinds of power that the executive had.
Excerpt from interview: Saikrishna Prakash explains the foundations of the unitary executive theory and argues that Congress cannot change constitutional appointment and removal powers.
Saikrishna Prakash: The case for the unitary executive goes back to the Convention. It goes back to the first Congress. There's a debate in the first Congress about whether the president has a constitutional power to remove. They enact three statutes that are grounded on the idea that the president has a constitutional power to remove and that they're not granting the authority. The president already has it. The president subsequently puts in commissions that he can remove all officers that he appoints safe for Article III judges. There's no statutory warrant for any of that because most statutes don't mention removal. The president is directing executive officers with no statutory warrant. He's telling prosecutors whom to prosecute. He's telling them to stop prosecutions. He's giving instructions to revenue collectors throughout the nation, even though he has no statutory authority for that.
And so there's a lot of evidence of unitariness at the Founding. And of course, James Madison himself says in Congress, if any power is whatsoever executive in nature, it's the power to control, direct and remove executive officers. So I think there's a very strong claim that the Constitution as originally understood by at least some, was meant to be unitary. And there's no early statute establishing any independent agency. There's certainly no statute that says these people to exercise their power over law execution independent of the president. No one's found any such statute to my knowledge. And then when we think about Congress, the question is, well, does Congress have authority to change that? I guess, as Gillian said, is it a default allocation or is it something that's absolute?
And the way I think about Congress is that Congress generally doesn't have power to change the Constitution. That is to say, there's no clause that says the president has power over the executive branch subject to congressional defeasance, any more than there's a power that Congress has to limit the pardon power or limit the power to appoint principal officers. The theory of the Constitution is that it grants powers to certain branches with certain conditions, and it doesn't grant Congress the power to withdraw or alter those allocations. And if it does, then all the presidential powers are defeasible. There's no reason to think that this would be particularly any more defeasible than the pardon power or any other power. The claim for a unitary executive theory is both that the Constitution grants a certain set of powers through the vesting clause that is the executive power, and that the Constitution doesn't create a Congress with authority to, by statute, reallocate or reassess those powers.
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