Seldom, if ever, has a president claimed so much power—and then turned around and done so little with it. Just a few months ago, when Donald Trump was being impeached in the House and tried in the Senate, he and his legal team insisted that presidential power is all but unlimited. Alan Dershowitz, one of Trump’s legal advisers, suggested that if the president believes that his staying in power is best for the country, he cannot be impeached for the actions he takes in hopes of being reelected. So complete is the president’s power, Trump’s legal team insisted at the time, that he can direct federal employees to defy a congressional subpoena—even after they stop working for the White House.
These arguments grew out of what constitutional scholars call the unitary-executive theory, which has been cited to justify ever more expansive powers in the office of the presidency. But with his halting response to the coronavirus, Trump has turned the unitary-executive theory on its head.
This theory holds that the president has inherent, implicit authority under Article II of the Constitution that cannot be constrained by Congress—including exclusive power to control all subordinates. In the words of the law professor John Yoo, the author of the infamous Department of Justice memos rationalizing torture under the presidency of George W. Bush, presidents need unitary executive power “to defend the country in times of crisis and emergency.” Proponents of the theory also justify unfettered presidential power as fostering accountability. The public knows where the buck stops if it stops unflinchingly with the president, and it can vote accordingly in every fourth November.