Preserving Balance: State Responses to the Strong Unitary Executive Theory

By:  Louis Porter, Michigan Attorney

The United States has long relied on a constitutional structure built on checks and balances—a system designed to prevent the concentration of power in any one branch of government. But today, that equilibrium faces a serious test. A legal doctrine known as the Strong Unitary Executive Theory (SUET) has gained some support among United States Supreme Court justices, threatening to shift authority dramatically toward the executive branch. As this theory edges closer to becoming judicial doctrine, state governments and court professionals must understand what is at stake—and begin developing strategic responses to preserve the integrity of American democracy.

Understanding Strong Unitary Executive Theory

At its core, SUET is a theory of constitutional interpretation asserting that all executive power is vested solely in the President, granting the office broad authority over every part of the federal executive branch. This includes powers traditionally shared with or constrained by Congress and independent federal agencies. While the idea has been debated in legal scholarship for decades, its practical implications have come into focus more sharply in recent years—especially with the emergence of Project 2025 and related legal cases, including Wilcox v. Trump.

If embraced by the U.S. Supreme Court, SUET could invalidate many statutory limits on presidential control over the executive branch. For example:

• Presidents could remove heads of independent agencies at will.
• The Civil Service Reform Act could be weakened, restoring patronage-based hiring.
• The Impoundment Control Act could be rendered unenforceable, allowing presidents to withhold congressionally appropriated funds for political or ideological reasons.
• Agency rulemaking could be subordinated entirely to presidential directives, undermining both expertise and public accountability.

These shifts would not merely centralize executive authority—they would undermine the institutional independence that helps ensure fair, evidence-based governance across agencies like the NLRB, the FCC, and the Federal Reserve.

The Judicial Trend

A growing number of recent court decisions show deference to the executive branch—sometimes at the expense of congressional intent or judicial restraint. In Trump v. United States (2024), the Supreme Court held that the President enjoys immunity from criminal liability for “core constitutional powers” and partial immunity for other official acts. This ruling greatly narrows the scope of accountability for presidential misconduct.

Other cases demonstrate a pattern of granting emergency stays or rejecting injunctive relief even when the executive branch acts outside established legal boundaries. The memo references Noem v. Doe, Department of Homeland Security v. DVD, and Wilcox v. Trump as examples of this deference. Collectively, these cases suggest a rebalancing of judicial review in favor of executive discretion—especially in matters of national security, immigration, and foreign policy.

In the case of Wilcox, the Court allowed the President to remove members of independent boards, undercutting the longstanding precedent of Humphrey’s Executor v. United States (1935). The practical impact is clear: federal regulatory bodies may soon become tools of presidential will rather than expert-driven, bipartisan entities.

Consequences for States

The SUET framework does not only affect federal institutions—it has deep implications for state sovereignty and the federal balance of power. States could find their ability to challenge executive overreach significantly curtailed. Preemption doctrines may be expanded to override state laws, and federal agencies—now politically directed—could block state-level enforcement of environmental, health, and labor protections.

In areas like public safety, the environment, and economic regulation, states rely on predictable relationships with federal agencies. SUET threatens that relationship by introducing instability and politicization, weakening the federal-state partnership that underpins many public policies.

Strategic State Responses

States are not powerless in the face of these changes. The memorandum outlines a broad range of strategies—legal, legislative, and administrative—that states can pursue to protect democratic norms and maintain institutional independence:

1. Congressional Engagement: State attorneys general and governors should work with their congressional delegations to review and revise statutes that overly empower the executive. This includes narrowing delegations of authority and clarifying standards for emergency powers and administrative action.
2. Legal Challenges and Amicus Briefs: States can contest SUET interpretations by filing or joining legal challenges, especially when a case threatens to weaken agency independence or interfere with state authority.
3. State Constitutional Protections: Many state constitutions provide more expansive rights than the federal Constitution. States can codify protections for due process, separation of powers, and civil liberties through their own courts and legislation.
4. Preserving Regulatory Capacity: As federal agencies become more politically controlled, states may need to replicate key regulatory functions. Though limited by budget and expertise, states can collaborate regionally and enact baseline protections to maintain standards.
5. Guarding the National Guard: Governors should reassert their authority over state militias and prepare legal safeguards against improper federalization, especially in the absence of rebellion or insurrection.
6. Reforming Ethics and Accountability: States should examine their public integrity laws, including bribery statutes, public records rules, and anti-doxing provisions, to ensure accountability and transparency in governance.
7. Strategic Litigation: When challenged in federal court, states should raise affirmative defenses grounded in federalism, parens patriae (their role in protecting citizens), and procedural due process. Cases should, when possible, be filed in state courts raising state law claims and carefully limiting the types of  federal officers named  to avoid removal to federal jurisdictions that may favor the executive.
8. Public Communication and Collaboration: States should coordinate messaging, highlight legal inconsistencies, and promote cross-state collaboration to push back against federal overreach. Transparency, public education, and civic engagement are essential tools in maintaining institutional legitimacy.

A Call to Leadership

The article ends with a challenge: If not these strategies, then what? While some of the responses proposed may seem aggressive or unorthodox, they arise from a genuine concern over maintaining the rule of law and the balance of powers.

The courts, including the Supreme Court, have a vital role in preserving constitutional structure—but when that role falters, states must be prepared to act. Strong Unitary Executive Theory may represent one interpretation of executive power, but it is not the only one. Through strategic advocacy, robust litigation, and principled governance, states can reaffirm their role as vital partners in American democracy.

Additional Resource

For a more in-depth discussion on this topic, written by Louis Porter, click HERE.