The Case for Impeaching and Removing Every Federal Judge and Supreme Court Justice Who Has Ever Been a Member of the Federalist Society or Endorsed Unitary Executive Theory.
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Getty ImagesA note from the author. This article runs longer than what you usually find at the Existentialist Republic. The argument we are making is that hundreds of federal judges, including six sitting Supreme Court justices, should face impeachment and removal from office for their association with an ideology that is antithetical to the duties, responsibilities, and expectations of their position. A claim that serious cannot rest on a thousand words and a few rhetorical flourishes. It has to earn the conclusion through the doctrine, the history, the rulings, and the constitutional standard, and it has to do that work in front of the reader rather than behind their back. The length is the price of doing this honestly. Read at your own pace. You’ll also find daily call to action email templates for today’s CTA and around two dozen free Existentialist Republic Effective Activist Educational Resources, all at the end of this article. The Existentialist Republic only continues this daily practice if 10 people become subscribers per article, please consider joining today and being the reason it continues. Enjoy, and thanks for getting after it.The Federalist Society spent forty years building a captured federal judiciary, and we are now living inside the result. The doctrine they built it around has a name, unitary executive theory, and the doctrine has a method. The method is to read every Democratic exercise of power narrowly and every Republican exercise of power broadly, until the Constitution comes to mean whatever the conservative legal movement requires it to mean on any given Tuesday. This piece does three things. It explains what unitary executive theory actually claims and where the doctrine came from. It shows how the same justices who built the doctrine apply it selectively along partisan lines, using the student loan ruling and the presidential immunity ruling as the central exhibits. And it makes the case that membership in the Federalist Society or endorsement of unitary executive theory should disqualify a judge from federal office, with impeachment and removal as the constitutional mechanism the framers built for exactly this situation.Let’s start with the doctrine. Unitary executive theory says the president alone controls the entire executive branch of the federal government. Every official who enforces federal law, from cabinet secretaries down to line prosecutors and agency inspectors, works under presidential command. The president can hire them, fire them, override their decisions, and direct their actions. No part of the executive branch operates independently of the president’s will.
The theory rests on the opening line of Article II, which vests “the executive Power” in a president, and proponents read that grant as complete. If executive power belongs to the president, the argument goes, then anyone exercising executive power must answer to the president, and Congress cannot insulate executive officials from presidential control.Unitary executive theory (UET) is a forty years old legal theory, attached to “originalism, although the Constitution it claims to interpret is nearly two hundred and fifty years old. UET was invented in the Reagan administration, by lawyers who needed a constitutional argument that would expand presidential power in directions the conservative movement wanted it expanded. Reagan took office in 1981 and the Federalist Society launched the following year at Yale and the University of Chicago, founded by law students who would become the architects of the project, including Steven Calabresi, who would later coauthor the foundational law review articles claiming unitary executive theory as the framers’ original design.
Edwin Meese became Attorney General in 1985 and turned the Justice Department’s Office of Legal Counsel into a workshop for the new doctrine, producing the originalist briefs and internal memoranda that would become the movement’s intellectual scaffolding. Antonin Scalia joined the Court in 1986 and wrote the founding dissent of the project two years later in Morrison v. Olson, arguing the independent counsel statute violated the Constitution by placing an executive officer outside presidential control. That dissent became scripture, taught in Federalist Society reading groups and cited in law review articles as the suppressed truth about Article II.The historical claim was always thin. The first Congress, sitting with many of the same people who wrote the Constitution, created executive offices with mixed structures and debated removal at length without treating presidential control as absolute. Alexander Hamilton, the framer most associated with executive powers, wrote in Federalist 77 that the Senate’s advice and consent role extended to removal, a position the strong unitary theory cannot accommodate. The Comptroller of the Treasury, established in 1789, operated with explicit independence from presidential direction. Humphrey’s Executor v. United States, decided in 1935, upheld for-cause removal protections for Federal Trade Commission commissioners and stood as settled law for nearly ninety years. Constitutional scholars including Jed Shugerman, Jane Manners, and Lev Menand have documented in recent work how thin the originalist case becomes when the sources receive honest treatment. The theory’s proponents knew this. They built the doctrine anyway, because the doctrine was useful, and they spent four decades credentialing the lawyers who would become the judges who would convert a Reagan-era policy preference into binding constitutional law.By 2020 the votes were in place. Seila Law v. Consumer Financial Protection Bureau struck down the structural independence of the CFPB. Collins v. Yellen did the same to the Federal Housing Finance Agency a year later. Free Enterprise Fund v. Public Company Accounting Oversight Board had already invalidated double-layer removal protections in 2010. Each ruling expanded presidential control over the executive branch. Each ruling cited unitary executive theory as the constitutional reason.Hamilton wrote Federalist 69 in March 1788, addressing ratifiers who worried the new presidency would recreate the monarchy they had just fought a war to escape. He walked through the comparison directly. The king of Great Britain held office for life.
The president would serve four years and could be removed. The king was “sacred and inviolable” and could not be questioned in court. The president, Hamilton wrote, “would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” Some have tried to read “afterwards” as a sequence requirement, claiming Hamilton meant impeachment must come before criminal prosecution and that a president who escapes impeachment escapes prosecution forever. That reading collapses on contact with the essay it sits inside. Hamilton’s entire purpose in Federalist 69 was to assure ratifiers that the president would not possess the monarchical immunity the British king enjoyed. A reading that lets a president commit any crime in office and walk free after partisan acquittal recreates the exact immunity Hamilton was disclaiming. The word “afterwards” is descriptive, not prescriptive. It describes the natural temporal sequence in which the two accountability mechanisms would typically operate, because a sitting president would not generally stand criminal trial while still holding the office. What Hamilton actually said is what the sentence says. The president would be subject to impeachment during the term and to criminal prosecution after it, both available, neither contingent on the other.If the doctrine were applied honestly, it would produce symmetrical results across administrations. A president is a president. The constitutional grant of executive power in Article II does not distinguish between Republican and Democratic presidents. A doctrine that says the president controls the executive branch should mean the same thing on January 19th and January 21st, regardless of who took the oath in between. That is not what the Court does.Consider two rulings decided thirteen months apart, by overlapping majorities, applying constitutional principles that should have produced symmetrical results and produced opposite ones instead.In June 2023, the Supreme Court decided Biden v. Nebraska. The Biden administration had moved to cancel federal student loan debt under the HEROES Act, a statute Congress passed in 2003 that authorizes the Secretary of Education to “waive or modify” loan provisions in connection with a national emergency. The administration invoked the COVID-19 emergency, the same emergency the Trump administration had used to pause loan payments three years earlier.
Chief Justice Roberts, writing for the majority, said the administration lacked the authority. The Court invoked the major questions doctrine, which holds that executive agencies cannot take actions of vast economic and political significance without explicit congressional authorization. The HEROES Act’s grant of authority to “waive or modify” loan provisions, the majority wrote, was not explicit enough. Congressional silence on the specific question of mass loan cancellation operated as a constitutional limit on executive power.Thirteen months later, in July 2024, the same Court decided Trump v. United States. Donald Trump faced federal prosecution for his conduct in connection with the January 6th attack, including pressuring the Justice Department to investigate fictional election fraud, pressuring state officials to overturn certified results, and pressuring Vice President Pence to refuse to count electoral votes. Chief Justice Roberts, writing for the same six-justice majority that had ruled against Biden, granted Trump absolute immunity for acts taken within his “core constitutional powers” and presumptive immunity for everything else within the “outer perimeter” of official conduct. The Constitution does not mention presidential immunity. No statute grants it. The framers debated immunity at the Constitutional Convention on September 14, 1787, three days before adjournment, when Charles Pinckney moved that members of Congress receive immunity from prosecution for official acts. The motion was defeated. No equivalent motion was made for the president, and the silence was deliberate. The framers had just rejected legislative immunity. They were not prepared to grant the executive what they had denied the legislature. Two hundred thirty-seven years later, the Roberts Court created the immunity anyway, granting the president the monarchical immunity Hamilton said the office would not contain.The contrast is not subtle. Congressional silence on student loan cancellation operated as a limit on Democratic executive power. Constitutional silence on criminal immunity operated as a license for Republican executive power. The same Court. The same justices. The same year. Opposite analytical frameworks producing opposite results, with the partisan valence of each outcome perfectly aligned with the political project the Federalist Society has been pursuing for forty years.The pattern extends across the docket. The major questions doctrine activates against Democratic regulatory actions and goes dormant against Republican ones of equivalent or greater significance. Standing requirements tighten when Democratic states challenge Republican federal actions and relax when Republican states challenge Democratic ones.