A 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. Stephen Vladeck’s research on the shadow docket has documented dozens of emergency interventions favoring Republican plaintiffs and a handful in the other direction. The doctrine activates when convenient and goes dormant when not.
This brings us to the load-bearing claim of the entire argument. Unitary executive theory is a different constitution. The doctrine claims constitutional authority that the text does not grant, that the framers explicitly rejected, that the first Congress did not exercise, and that no court recognized until the conservative legal movement invented the doctrine in the 1980s. The text of Article II vests executive power in the president and requires the president to take care that the laws be faithfully executed, language that imposes obligations rather than granting unilateral control. The framers, as Hamilton’s Federalist 77 makes explicit and as the rejected Pinckney motion confirms, did not grant the executive the unaccountable authority the doctrine claims. The first Congress built executive offices with mixed structures and independent components. No court endorsed the strong version of unitary executive theory until the conservative legal movement built the doctrine in the 1980s and spent forty years credentialing the judges who would convert academic argument into binding law. The doctrine functions as a replacement for the Constitution rather than an interpretation of it, offered by a political movement that could not amend the document through Article V and decided to install its preferred version through judicial appointments instead.
The remedy follows from the diagnosis. The framers anticipated judicial corruption. They built impeachment into Article II specifically because they understood that lifetime tenure required a constitutional backstop. Federal judges hold office “during good Behaviour,” in the language of Article III, Section 1. Good behavior has always meant something more demanding than not committing crimes. Hamilton addressed exactly this in Federalist 78, calling the good behavior standard “one of the most valuable of the modern improvements in the practice of government” and treating it as a substantive condition on judicial tenure rather than a synonym for the absence of criminal conduct. Joseph Story, in his Commentaries on the Constitution published in 1833, wrote that judges could be impeached for “official misconduct” demonstrating unfitness for the office, including partiality, corruption, and open violation of constitutional duty.
The judicial oath, set out in 28 U.S.C. Section 453, requires every federal judge to swear they will “administer justice without respect to persons” and will “faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States.” That oath has content. It commits the judge to the Constitution as the country ratified it, not to a constitution invented forty years ago by a political movement. A judge who swears that oath and then commits to a different constitution has violated the oath at the moment of commitment. The rulings that follow are evidence of the violation. The commitment itself is the violation, because the commitment is incompatible with the oath.
A judge who has endorsed unitary executive theory has committed, on the record, to ruling according to a constitution that is not the Constitution. A judge who has built a career through the Federalist Society credentialing pipeline and ruled according to its outputs has demonstrated through conduct that their primary fidelity runs to the institutional project rather than to the document they swore to support. The selective application we documented in the hypocrisy section is the evidence. When the same judges read constitutional text narrowly against Democratic exercises of power and broadly in favor of Republican exercises of power, they are delivering the pipeline’s project rather than interpreting the Constitution. That conduct fails the good behavior standard, because it fails the impartiality requirement the judicial oath contains.
The objection writes itself. Membership in the Federalist Society is constitutionally protected association under the First Amendment, and impeachment for jurisprudential views would politicize the bench. The objection misses the argument, and it also misses the country we actually live in. We disqualify people from public office based on belief and ideological association routinely, and the Constitution itself requires us to. Article VI, Section 3 commands every federal officer to swear an oath to support the Constitution, which is a belief-based disqualification by design. A nominee who tells the Senate they reject the Constitution is ineligible for the office, and no one treats that as a First Amendment problem. Section 3 of the Fourteenth Amendment bars from office anyone who has previously sworn the oath and then engaged in insurrection or given aid and comfort to its enemies, a disqualification that reaches both conduct and ideological alignment. Federal security clearance regulations exclude people whose beliefs or affiliations are incompatible with the duties of sensitive positions, and the government has clear authority to make those judgments without violating the First Amendment. The Code of Conduct for United States Judges already bars federal judges from certain organizational memberships precisely because some affiliations compromise the impartiality the office requires. The principle is settled. Office can be conditioned on ideological commitments compatible with the duties of the office, and committing to a constitution other than the one we ratified is not compatible with the duties of a federal judge.
The argument is not that membership in an ideological organization is itself disqualifying in some abstract sense, and the argument is not that judges should face removal for jurisprudential disagreement within the legitimate range of constitutional interpretation. The argument is that judges who have committed to a constitutional theory that operates outside the legitimate range, that contradicts the text and the history and the precedent, and that exists for the purpose of delivering specific partisan outcomes, have failed the standard their tenure depends on. Endorsement of unitary executive theory is the marker. Career advancement through the Federalist Society pipeline is the credential. Selective application of constitutional principle along partisan lines is the conduct. Together they meet the good behavior standard the framers built into Article III.
The scope of the remedy must match the scope of the capture. Six justices in the Trump v. United States majority delivered the most consequential single ruling of the project. The House should draft articles of impeachment against each of them. The Senate should hold trials. The proceedings will do the work of public accounting whether or not the votes for conviction materialize, because the proceedings will establish on the public record what the Court has done. Below the Supreme Court, hundreds of federal judges have come through the same pipeline and delivered rulings that align with the same project. Each case has to be made on its own record. The standard is the same. The conduct meets it or it does not. Where it does, the House should act.
Impeachment is not the only tool. Congress holds clear constitutional authority to expand the Supreme Court, and Article III leaves the size of the Court to congressional determination. Congress holds clear constitutional authority to strip federal court jurisdiction over specific questions, and the exceptions clause of Article III is the textual basis for that authority. Term limits for justices would require a constitutional amendment, and the amendment process is in Article V. The confirmation process can be reformed without any constitutional change, simply by senators refusing to confirm nominees whose constitutional views place them outside the legitimate range of interpretation. Each of these tools exists. Each requires political power sufficient to deploy it. Building that power is the work in front of us.
What we should refuse is the language of purges. Erdoğan purged the Turkish judiciary after the 2016 coup attempt. Orbán reshaped Hungarian courts through forced retirements that lowered the mandatory retirement age and removed sitting judges in a single stroke. The Polish Law and Justice party did something similar before the Tusk government began trying to reverse it. The pattern these governments establish is the pattern we exist to oppose, and adopting their vocabulary to describe what we want to do hands them a rhetorical weapon while pointing us toward methods that would damage the institutions we need to rebuild. We want accountability through constitutional mechanisms. We want impeachment, court expansion, jurisdiction stripping, term limits, and confirmation reform. We want a judiciary drawn from a wider pool than the Federalist Society pipeline produces. None of that requires the word purge, and avoiding the word leaves the argument stronger rather than weaker.
The framers built Article II to prevent a king. They built impeachment into the same article because they knew judges might one day install one anyway. They gave us the tools. Let’s pick those tools up and use them.
Daily Call to Action
The answer comes from us, and it comes through the people who hold the constitutional tools. Federal judges face impeachment by the House and trial by the Senate. State legislators hold no direct role in that process, but they hold platforms, public credibility, and influence over their federal delegations. Every reader who finishes this piece can contact their U.S. House member, their two U.S. Senators, and their state representatives, and ask each of them to take a public position on the question this article asks. The scripts below are short enough to send today. Copy them, adjust them, send them. You can find your U.S. House member and your two U.S. Senators at congress.gov, and you can find your state representatives at openstates.org.
To your U.S. House member.
I am writing to ask you to take a public position on the federal judiciary. The Supreme Court has spent the past fifteen years installing a constitutional doctrine called unitary executive theory, which the conservative legal movement invented in the 1980s and which the framers explicitly rejected. The same justices who used the major questions doctrine to strike down student loan relief in Biden v. Nebraska turned around thirteen months later in Trump v. United States and granted the president criminal immunity the Constitution does not contain. What they delivered was constitutional replacement rather than constitutional interpretation, executed by judges credentialed through the Federalist Society pipeline. I am asking you to publicly support impeachment proceedings against the six justices in the Trump v. United States majority and against lower court judges whose records show the same partisan application of constitutional principle. The framers built impeachment for exactly this situation. Please tell your constituents where you stand.
To your U.S. Senator.
I am writing to ask you to commit, in advance and on the record, to vote for conviction if the House delivers articles of impeachment against the six justices in the Trump v. United States majority. That ruling granted the president criminal immunity the Constitution does not contain and the framers debated and rejected at the Constitutional Convention. The justices who delivered it came through the Federalist Society credentialing pipeline and have applied constitutional principle selectively along partisan lines across a series of rulings. Their conduct fails the good behavior standard the framers built into Article III. I am also asking you to refuse confirmation to future judicial nominees whose constitutional views include endorsement of unitary executive theory or whose careers were built through the Federalist Society pipeline. Please tell your constituents where you stand on both questions.
To your state representative or state senator.
I am writing to ask you to use your platform to press our federal delegation on the captured federal judiciary. The Supreme Court has installed a constitutional doctrine the framers rejected and applied it selectively along partisan lines for fifteen years. State legislators hold no direct role in federal impeachment, but you hold influence over our House member and our Senators, and you hold credibility with constituents who trust your judgment. I am asking you to publicly state that endorsement of unitary executive theory and career advancement through the Federalist Society pipeline should disqualify a judge from federal office, and to press our federal delegation to act on that standard. Please tell your constituents where you stand.
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