As Donald Trump searched for a running mate in May of 2016, his oldest child, Donald Trump Jr., tried to bring John Kasich, the governor of Ohio, into the fold. His supposed offer, according to reporting in The Times: that Kasich, as vice president, could be president in everything but name. He would run foreign and domestic policy and be, in essence, the most powerful vice president in American history.
As for his father, Donald Jr. explained, his job would be making America great again.
Both the Trump campaign and the Kasich camp denied that this exchange ever took place. “It’s completely ridiculous,” said Jason Miller, Trump’s spokesman at the time. “There was never an offer made. It’s completely made up.” Trump issued a denial as well. “John Kasich was never asked by me to be V.P.,” he said on Twitter.
Trump’s eventual choice, Gov. Mike Pence of Indiana, took a traditional approach to the role, never overstepping his bounds or challenging the authority of the president until the very end, when Trump asked him to break the Constitution on his behalf.
Now, in his second term, it seems the president has embraced the idea that he can divide the responsibilities of the job to share with another person. He could serve as head of state — where he’ll use his cultural and political influence to “make America great again” — and someone else could serve as head of government to manage the executive branch.
Enter Elon Musk.
Musk has been given control of much of the executive branch under the auspices of the so-called Department of Government Efficiency. His subordinates wield a tremendous amount of power, destroying entire agencies and firing tens of thousands of civil servants at will. If Musk were a cabinet official, he would be among the most powerful and influential cabinet officials in American history.
But Musk is not a cabinet official. He has no official role other than that of special adviser. He is something like a constitutional officer, but he was not confirmed to his position by the Senate (as the Appointments Clause would demand). It is not even clear if Trump is giving Musk direct orders or if Musk is operating autonomously, cloaked in the authority of the president but working outside the limits and restrictions placed by the Constitution.
Either way, it’s clear that Musk is a kind of co-president, wielding extra-constitutional power over the executive branch. It is true that there have been times in American history during which individuals have wielded the power of the presidency without any formal role in government. Edith Wilson famously (or perhaps infamously) acted as de facto president after her husband, President Woodrow Wilson, suffered a debilitating stroke in 1919.
But Musk’s role is something unique. The president is not incapacitated. He is still engaged in the work of foreign affairs and other matters of state. And he has imbued Musk with the authority to act as head of government, so much so that Musk felt confident enough on Wednesday to address the president’s cabinet as if he were, in a real sense, the boss.
There is a deep irony here. If there is an operating philosophy driving the Trump White House, it is that of the unitary executive — the idea that the president is the sole and exclusive wielder of a broad and expansive executive power. This includes the power to dismiss federal employees at will as well as the power to resist congressional statutes or judicial decisions that encroach on executive authority.
One key source for the idea of the unitary executive is Alexander Hamilton’s case for an “energetic” executive in Federalist No. 70. “A feeble Executive implies a feeble execution of the government,” Hamilton wrote. “A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.” The executive needs energy, he continued, and unity — as opposed to a plurality or multiplicity of executives — is the ingredient that makes an active and energetic president possible.
There are a few issues here. The first is a matter of constitutional interpretation. In addition to Hamilton, the unitary executive theory leans heavily on Article II, Section 1 of the Constitution, which states that “The executive power shall be vested in a President of the United States of America.” Proponents of the unitary executive theory believe that this phrasing, “the executive power,” grants the president a set of inherent and implied powers including near absolute authority over foreign affairs. But this reading of the Executive Vesting Clause runs into a small problem: the specificity of the rest of Article II. The framers took care to enumerate the various powers of the presidency, a choice that does not make sense if they had written a general grant of authority for the president.
In fact, as Julian Davis Mortenson notes in a 2020 article for the University of Pennsylvania Law Review, there is strong evidence from contemporaneous 18th-century sources that the Vesting Clause did little more than “convey the authority to execute the laws.” This power, he observes, “was an empty vessel that authorized only those actions previously specified by the laws of the land.” And a quick glance at the records of the Constitutional convention support an even narrower reading of the Vesting Clause: that it only exists “to settle the question whether the executive branch should be plural or single and to give the executive a title.”
The second issue relates to the other load-bearing pillar of the unitary executive theory, the Take Care Clause, which provides that the president “shall take Care that the Laws be faithfully executed.” For supporters of the unitary executive, this means that the president has total control over his subordinates; otherwise, how would he know if the laws were being “faithfully executed”? And among the most extreme unitarians, the Take Care Clause completely insulates the executive from statutory direction and legislative oversight because the president, and only the president, is charged with ensuring faithful execution of the laws.
But this runs counter to what we know about the actual practice of American government in the first decades under the Constitution. For example, lawmakers in the first Congress, many of whom had a direct hand either in writing the Constitution or in fighting for its ratification, saw nothing in Article II that prevented them from creating offices in the executive branch that lay outside the direct control of the president. In a 2019 article for the Notre Dame Law Review, Christine Kexel Chabot shines light on the Sinking Fund Commission, an independent agency — established by Alexander Hamilton, passed by Congress and signed into law by President George Washington — that “carried out open market purchases of U.S. securities with substantial independence from the president.” The president himself could not initiate such purchases “without approval of a majority of the Commission,” and he had little power to replace or remove members of the commission.
Nearly 50 years later, in Kendall v. United States — a case in which the postmaster general refused to pay the legally required amount of money to a mail contractor — the Supreme Court held that Congress could impose duties on federal officers that the president cannot circumvent or ignore. The executive power may be vested in a president, Justice Smith Thompson wrote, “but it by no means follows that every officer in every branch of that department is under the exclusive direction of the President.” What’s more, “it would be an alarming doctrine that Congress cannot impose upon any executive officer any duty they may think proper which is not repugnant to any rights secured and protected by the Constitution, and in such cases the duty and responsibility grow out of and are subject to control of the law, and not to the direction of the President.”
The expansive reading of the Take Care Clause favored by unitarians is also undermined by a thorough reading of the history of the language. As Andrew Kent, Ethan J. Leib and Jed Handelsman Shugerman show in a 2019 article for the Harvard Law Review on the idea of “faithful execution,” the history “points to faithful execution being a restrictive duty rather than an expansive power — and that this requirement was as likely to be imposed on high-level officeholders as it was upon low-level officers, who were ordered not to veer from their assigned jobs, not to self-deal, and to do their jobs with diligence and care.”
The fact of the matter is that at every stage of its existence — from its creation at the hands of Congress to the present — the executive branch and federal bureaucracy have been a joint project of the other branches of government. The president offers direction, yes, but so do Congress and the courts. The federal bureaucracy has never had sole parentage, and neither the president nor the Legislature nor the courts can claim sole responsibility.
Supporters of the unitary executive will say that this joint custody arrangement undermines accountability, but it’s just the opposite. The fact that different parts of the government can exercise authority over the bureaucracy — the fact that Congress as much as the president can shape its conduct and operation — is constitutionalism in action. It is a joint custody arrangement that illustrates the basic fact that ours is a government of shared power and shared responsibility, in which each constitutional actor is empowered to check and influence the other.
That’s where the irony comes in.
President Trump may be working from an expansive theory of executive power, but in delegating so much of his authority to Musk — in creating a de facto co-president — he is both undermining that power and demonstrating Hamilton’s real insights about the importance of a singular executive.
Hamilton writes that “plurality in the Executive” tends to “conceal faults and destroy responsibility.” We’re seeing this play out with DOGE, where it is often unclear who is responsible for what. Hamilton says that “the multiplication of the Executive adds to the difficulty of detection…. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author.”
It is hard to imagine a better description of our current situation, in which the presence of what are essentially two presidents has blurred lines of accountability for “pernicious measures.”
As a result of this delegation of authority, the executive branch under Trump is also plagued with the question of whose orders are legitimate. Last week, Musk asked every federal employee to respond to an email that orders them to state their accomplishments over the past week. The punishment for not replying? You lose your job. But on whose authority can Musk make that demand and issue that threat? This is why several cabinet secretaries and department heads have told the civil servants under their direction not to respond.
There is a major political problem here as well. By ceding presidential authority to Musk, Trump is putting his fate in Musk’s hands. He is handing over the viability of his presidency to a figure who is accountable to no one but himself. If and when disaster strikes, Musk can walk away.
After all, he isn’t really the president. The buck will stop with Trump and the Republican Party because, if Musk cannot be held politically liable, they will be.
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