The Trump presidency has been defined, in large part, by fanatical application of the so-called "unitary executive theory" — the idea that, rather than the president having power that is inherently checked by the other branches, he instead has unlimited power within a constitutionally defined jurisdiction.
On Thursday, writing for Politico, Ronald Krotoszynski suggested that President-elect Joe Biden could adopt this theory himself, and use it to turn the tables on Republicans — purging Trump loyalists confirmed to eleventh-hour government posts and erasing the outgoing president's imprint on the executive branch.
"The GOP-controlled Senate appears to be filling every open federal post in sight," wrote Krotoszynski. "These confirmations, such as that of Nathan Simington on Tuesday to an open seat on the Federal Communications Commission, and that of Christopher Waller earlier this month to a seat on the Federal Reserve Board, could make it more difficult for Biden to make good on the policies and programs on which he campaigned and won election."
"In many cases, these office-holders are, at least in theory, not subject to at-will removal by the president because federal law provides that they can be removed only for 'good cause,'" he continued. However, unitary executive theory implies these employment protections infringe on the president's power.
Such an interpretation would, ironically, be in line with the legal beliefs of Trump's judicial appointees, he noted. "The Federalist Society, a conservative legal organization that has played an integral role in Trump’s judicial selection process, has long advocated the unitary executive theory. Under this theory, the president must be able to exercise direct forms of control over any and all officers holding policymaking posts within the federal executive branch—including, for example, a sitting member of the Federal Reserve Board of Governors." Moreover, "Trump-appointed federal judges, such as Brett Kavanaugh and Neomi Rao, have written in both academic articles and judicial opinions about the central importance of the unitary executive theory to the proper enforcement of the separation of powers."
As an added bonus for Biden, Krotoszynski argued, embracing unitary executive theory might force Senate Majority Leader Mitch McConnell (R-KY) to play ball on Biden's appointees when he takes office.
"If Republicans retain control of the Senate after the Georgia special elections, Biden should offer McConnell a choice: Either swiftly confirm a Biden appointee to the fifth seat on the FCC, or President Biden will remove Simington from the commission," he wrote. "Biden should adopt exactly the same negotiating tactic with respect to other federal independent agencies where the presence of lame-duck Trump holdovers, coupled with the Senate’s refusal to timely confirm the president’s nominees, would leave Biden without the ability to perform his constitutional duty to 'take Care that the Laws be faithfully executed.'"
"McConnell’s effort to do to federal agencies what he has systematically done to the federal courts can work only if Biden lets it work," concluded Krotoszynski.
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