There’s a seeming contradiction in the way conservative judges and justices have been ruling lately on issues related to checks and balances and the separation of powers. At times, they have overly asserted their own authority, while at others they’ve seemingly gone in the opposite direction, overly deferring to executive power.
There is, however, a throughline in these decisions. It points to a dangerous and extreme legal theory increasingly encroaching upon our democracy — one that will be essential to consider as President Donald Trump begins nominating federal judges.
On the one hand, we’ve seen the courts claim more power for themselves. In 2024’s Loper Bright decision, the Supreme Court overturned the concept of Chevron deference, which means courts will no longer defer to the agency experts whose knowledge helps keep our air, water, food, and drugs safe, among so many other things. Instead, judges will act as the experts themselves. This is consistent with the Court’s increasing use of the “major questions doctrine,” a completely made-up principle by which courts claim power to decide certain issues simply because they disagree with the decisions of those with the designated authority.
On the other hand, we’ve seen the courts increasingly hand more power to the president. This was best exemplified by last year’s Trump v. U.S. decision, in which the Supreme Court ruled that the president generally cannot be held accountable for illegal actions taken in the course of the presidency.
So what connects these two trends: both claiming more power for the courts and giving more power to the president?
In both situations, power is being taken away from non-partisan experts in the federal government so that the president and the justices can impose a partisan outcome. Agencies like the Environmental Protection Agency (EPA) or the Consumer Financial Protection Bureau (CFPB) are being stripped of their power so that either the courts can overrule their decisions or the president can threaten workers if they don’t abide by his preferred outcomes.
“Unitary executive” is just a fancy word for “authoritarian” or “despot,” and we can’t afford to give the judicial branch any more opportunity to advance this dangerous legal theory.
This gutting of administrative power is a hallmark of what’s known as the unitary executive theory. Promoted by groups like the Federalist Society and the Heritage Foundation, this is an attempt to give the president extreme and exclusive power, eliminating any independence or accountability for the many agencies across the executive branch. President Ronald Reagan was the first to introduce this concept to justify his actions, and other Republican presidents like George W. Bush and now Trump have championed it as well. It’s only ever invoked to justify the president acting in more authoritarian ways than our Constitution allows.
Elon Musk and the so-called Department of Government Efficiency’s attacks on the federal workforce are consistent with this approach. Notably, they have targeted agencies designed to be independent of the president’s political influence, such as the National Labor Relations Board and CFPB, to try to solidify power in the president and his whims.
Trump’s executive nominees have also aligned with a unitary executive approach. The Department of Justice (DOJ), for example, traditionally acts independently of the president’s agenda. But FBI Director Kash Patel refused to say that he wouldn’t use the bureau to target Trump’s political opponents, and many expect he will do just that. Attorney General Pam Bondi is already making it a priority to protect Musk from people protesting Tesla because of the damage he’s doing to the federal government. The DOJ is supposed to serve the American people, but Trump has picked loyalists who appear prepared to instead serve as his personal attorneys — if not lapdogs.
So far, the courts are resisting Trump’s illegal overreaches, though there have yet to be many tests at the Supreme Court. Based on the initial ruling over funding for the U.S. Agency for International Development (USAID), it seems there are at least four conservative justices ready to disregard the entire judicial process and let Trump do whatever he wants. Judicial commitment to checks and balances as we know them is hanging by a thread.
That’s why it’s essential that Trump’s judicial appointments be thoroughly vetted with regards to their approach to the core constitutional principle that no president enjoys unchecked power to unilaterally dismantle our democracy. We must operate from the expectation that Trump’s picks for judges parallel his picks for other positions in their loyalty to him and his hoarding of power. We must take to heart his casting of loyalists like Judge Aileen Cannon — who tried to protect Trump in the classified documents case and who has been called a “favorite member of the Trump campaign” — as the mold for others to follow. Every effort must be made to prevent more such judges from ever sitting on the bench, lest they erode the last bulwark we have against Trump’s power grabs.
It’s important to remember that federal judges at all levels receive lifetime appointments. Thus, Trump-appointed judges won’t merely have the opportunity to prop up Trump’s exploits, but they will also be able to block any attempts to repair the damage he causes for generations to come.
Our democracy is fragile and our courts are already heavily biased thanks to the judges and justices Trump was able to appoint in his first term and previous efforts by Republican lawmakers to hold those seats open for him. Given the political actors he has now installed at supposedly independent agencies, imagine judges who are even more brazenly loyal to his preferred style of leadership than his first 234. It’s probably no coincidence that Chad Mizelle — the husband of another Trump judge, Kathryn Mizelle — is the new chief of staff at DOJ, dismantling its civil rights work.
We can’t set ourselves up for failure. “Unitary executive” is just a fancy word for “authoritarian” or “despot,” and we can’t afford to give the judicial branch any more opportunity to advance this dangerous legal theory. Our democracy might not survive it.
Keith Thirion is the interim co-president and vice president of strategy at Alliance for Justice and co-president at AFJ Action. As a contributor to Democracy Docket, Thirion writes about the U.S. Supreme Court, judicial reform and the importance of state courts.