Judges Flip Unitary Executive Theory on Trump Over Immigration

Federal trial judges are starting to invoke President Donald Trump’s vision of a unitary executive against him in cases linked to his administration’s immigration crackdown.

The theory, which holds the Constitution vests singular control of the executive branch in the president, is one the Justice Department is pushing the Supreme Court to embrace as it looks to expand Trump’s powers.

But even as it advances that sweeping position, the administration has simultaneously stressed compartmentalization across government when facing scrutiny from lower courts in immigration-related cases. Some trial judges aren’t having it.

“Now that it suits their interests, it is ironic to hear the public officials wail that they are but bit players in a fractured government,” William Young, a senior district judge in Boston, said in a March 11 opinion.

A pair of judges similarly cited the unitary executive theory in February in response to DOJ lawyers’ comments about their relationship with the Department of Homeland Security, which included one attorney describing it as “pulling teeth” to get the agency to comply with court orders.

The pushback shows the consequences of Trump’s maximal view of his powers, said Jane Manners, a Fordham University law professor.

“The idea that one wholly controlled agency should not be able to shirk responsibility by blaming another agency, also wholly controlled by the executive, speaks to the unintended ironies of the theory,” Manners said. “That with concentrated power comes concentrated responsibility.”

By naming the unitary executive theory, judges are “expressly criticizing the administration by putting what is in front of them in this broader context,” said Carolyn Shapiro, a Chicago-Kent College of Law professor.

The next step, she added, could be judges ordering high-ranking immigration officials to appear in federal court if the Justice Department continues to show an inability to get them to obey orders.

‘Expansion of Bureaucracy’

The unitary executive theory is rooted in the Vesting Clause of Article II of the Constitution, which says “the executive power shall be vested in a President of the United States.”

Trump tested the boundaries of that theory by firing leaders of certain independent agencies who by law are protected from at-will removal. US Solicitor General John Sauer said in December at the Supreme Court that such constraints are unconstitutional.

The “modern expansion of the federal bureaucracy sharpens the court’s duty to ensure that the executive branch is overseen by a president accountable to the people,” he said. The conservative-dominated courtappeared receptive to the argument, following a slew of earlier rulings expanding presidential powers.

But Sauer’s vision goes beyond presidential firings, and it came into view following the surge in immigration enforcement in Minneapolis, highlighted by an early February hearing mostly known for a government lawyer’s remarks that “the system sucks, this job sucks.”

‘Problem In Restaurant’

In that same hearing, US District Judge Jerry Blackwell cited the “unitary executive” as he pressed that lawyer on the failure by the authorities to comply with orders to release people wrongfully detained as part of Operation Metro Surge.

“I wholeheartedly embrace the notion of a unitary executive, as in DHS, ICE, the DOJ, all a part of the Executive Branch,” said Blackwell, a Biden appointee. “And if there’s a problem in the restaurant, I don’t intend to go in the kitchen to try to figure out who makes the bread. And all of it is part of the executive Branch.”

“And so it is not an excuse to tell me you contacted ICE because ICE is also part of the unitary executive for accountability purposes,” he added.

Days later, Judge Georgia Alexakis of the Northern District of Illinois raised the theory as a woman shot by a Border Patrol agent pushed for immigration authorities to stop calling her a “domestic terrorist” even though prosecutors dropped criminal charges against her.

Marimar Martinez’s lawyers blamed Justice Department lawyers for failing to constrain an “out-of-control-client,” a description a DOJ lawyer in a Feb. 6 hearing contested by claiming “no agency is the client. They can’t tell us what to do, we can’t tell them what to do.”

Judge Georgia Alexakis, a Biden appointee, sounded skeptical. “I’m not going to comment on your representations of what obligations, responsibilities, commitments lie between the DOJ and other executive agencies,” she said. “There is a unitary executive theory. I will say that much.”

She later ordered the release of a wide range of evidence related to the shooting, while expressing alarm over the government showing “zero concern about the sullying of Ms. Martinez’s reputation.”

Divisions Break Down

The Justice Department in one sense is the federal government’s law firm, with its lawyers representing agencies facing lawsuits and advising them on how to handle legal matters.

Historically, the DOJ has been viewed as a separate entity in that arrangement, said Jules Torti, a former civil division chief at the US attorney’s office in Vermont.

But “the distinction between the DOJ and the client starts to break down” if Trump has total control of the executive branch, said Torti, now counsel at Protect Democracy.

Young, a Ronald Reagan appointee, drew attention to that in his opinion denying the administration’s request to pause remedies he imposed over its effort to target noncitizens for deportation because of their involvement in pro-Palestine protests.

The DOJ argued his order imposed demands on the US Citizenship and Immigration Services, an agency not represented in the case at hand—an argument Young found unconvincing.

“The entire theory of this administration is that of a unitary executive with no agency independence where every single employee within the Article II executive dances to the tune of the president,” Young said.

How the theory also squares with decisions by immigration judges—who are part of the DOJ but have traditionally been fairly insulated from executive branch pressure—will be the next issue to come up, said Torti. “Advocates are likely to argue these judges are less independent than they’ve ever been.”