How to Dismantle a Democracy, Legally

The unitary executive theory is a masterclass in autocratic legalism.

The 20th century taught the world what the death of democracy looked like: tanks in the streets, generals on television, the sudden and violent overthrow of elected governments. But in the 21st century, a new, more insidious model has emerged. Democracies today are rarely demolished by a single, decisive blow. Instead, they are dismantled piece by piece, not by breaking the law, but by systematically weaponizing it.

Princeton sociologist Kim Lane Scheppele has given this phenomenon a name: autocratic legalism. It is a process where leaders use the democratic mandate from their elections to systematically dismantle the constitutional order they inherited. This strategy, Scheppele explains, replaces the "rule of law," where the law constrains the powerful, with "rule by law," where the law becomes a weapon for the powerful. The strategy is tragically elegant, not unlike a retrovirus that hijacks the body’s own immune cells to destroy the immune system from within. Aspiring autocrats no longer move to suspend the constitution; they rewrite it. They don’t shut down the courts; they pack them with loyalists. They don’t cancel elections; they rig the rules to ensure they can never lose.

This global playbook provides the essential context for understanding the “unitary executive theory” (UET), the legal engine behind Project 2025 and a series of alarming Supreme Court rulings. UET is not a principled theory of constitutional law being applied in good faith. It is a political weapon, wielded with partisan selectivity, designed to achieve a concentration of power that is fundamentally at odds with American democracy. It is the American face of autocratic legalism.

What is Unitary Executive Theory?

Before we can see how the theory is being weaponized, it's essential to understand what it claims and, just as importantly, where it came from. At its heart, the unitary executive theory asserts that the Constitution’s Article II—which states, "The executive Power shall be vested in a President"—gives the president total, unchallengeable control over the entire executive branch.

To grasp how much of a departure this is, consider how the U.S. government has functioned for over a century. Congress has long created independent agencies to handle complex issues requiring non-partisan expertise. The Federal Reserve manages the money supply, the Federal Trade Commission (FTC) enforces antitrust laws, and the National Labor Relations Board oversees labor disputes. By law, the leaders of these agencies are insulated from direct political control; they can only be fired "for cause"—meaning for neglect of duty or malfeasance, not simply because a president disagrees with their decisions. This independence is designed to prevent a president from, for example, pressuring the Fed to slash interest rates to boost an election campaign or ordering the FTC to approve a politically connected merger.

The maximalist version of UET argues this entire structure is unconstitutional. It claims that because the president alone possesses all "executive power," any law passed by Congress that limits the president's ability to fire an official at will is an illegitimate infringement on presidential authority. In this view, every federal employee in the executive branch serves at the pleasure of the president, who can direct any action and fire any official for any reason, or no reason at all.

This modern interpretation is built on a crucial historical misreading—a rhetorical sleight of hand that conflates a "unitary" executive with a "unilateral" one. The debate at the Constitutional Convention was not over the scope of presidential power, but its structure. The alternative to a single president was a multi-member executive council, modeled on historical examples like the Roman Republic’s co-equal consuls—a system deliberately designed to diffuse power and prevent the rise of a king. Fearing deadlock and indecision, the founders ultimately chose a single president to ensure "energy" and accountability. But modern UET proponents have twisted this structural decision—the choice of one over many—into a justification for nearly unlimited unilateral power, a claim the historical record does not support. The debate was about unity, not absolutism.

This strong version of the theory is a relatively recent invention, emerging from the Reagan administration as an intellectual project to dismantle the post-New Deal administrative state. Champions in the conservative legal movement, like then-Professor Antonin Scalia, saw it as a way to rein in what they considered a sprawling, unaccountable bureaucracy. While its advocates now frame it in the language of originalism, critics argue this is "intellectual retrofitting"—a post-hoc justification for a pre-existing political goal.

It's vital to distinguish this radical interpretation from the "weak" version of UET that past presidents of both parties have held, which simply affirms the president's power to set general policy and supervise the administration. The theory being pushed today is the maximalist one, a tool that aims to concentrate all government power in one person's hands.

A Principle of Convenience

If the unitary executive theory were a genuine constitutional principle, its adherents would apply it equally to all presidents, regardless of party. The evidence shows it is a principle of convenience, invoked to amass power and discarded when it might constrain allies.

This situational approach is most visible in the actions of the theory’s own advocates. When President Biden took office and fired a handful of Trump-appointed holdovers, he was met with a flurry of lawsuits from the very conservatives who champion UET. Suddenly, these activists argued for the sanctity of the statutory tenure protections they otherwise seek to destroy.

This pattern of selective application has been mirrored at the Supreme Court. Under the Biden administration, the Court’s conservative majority preached judicial restraint and deference to Congress. The most telling example came in the 2021 case U.S. v. Arthrex. There, Justice Clarence Thomas, a leading proponent of a strong executive, argued against the Court rewriting a law governing patent judges, stating he would “simply leave intact the patent scheme Congress has created.”

But that deference vanished the moment it was no longer politically convenient. The uneven application is most stark in the Court’s handling of nationwide injunctions—a powerful tool lower courts used to block controversial executive policies. The Biden Justice Department repeatedly asked the Supreme Court to limit this practice. The Court refused. Yet, just five months into the second Trump administration, the Court seized the opportunity in Trump v. CASA to do exactly that, stripping away a key check on executive power precisely when it most benefited its political allies. In a stroke of irony, Justice Barrett’s opinion in CASA even cited the Biden administration's frequent complaints about nationwide injunctions as justification for eliminating them—now that it benefited Trump.

The data from the Court’s emergency "shadow docket" reveals the staggering result of this double standard. The Court intervened to lift 77% of lower-court TROs and preliminary injunctions against the Trump administration (including those lifted by CASA), while lifting 10% of those against the Biden administration.

The contrast is even sharper when considering who issued these rulings. While injunctions against the Trump administration came from a bipartisan set of judges, every single nationwide injunction blocking Biden White House policies was issued by a Republican-appointed judge. The Supreme Court chose which ones to overturn. This is hardly jurisprudence. It is a partisan thumb on the scale, pressing down for one side and lifting for the other.

The Endgame: A President Above the Law

The unitary executive theory has now been fully unleashed as the legal justification for Project 2025, the explicit blueprint to dismantle the non-partisan civil service and consolidate power in the White House. Using a revived "Schedule F" classification, the plan calls for firing tens of thousands of career civil servants—from FBI agents and federal prosecutors to scientists and diplomats—and replacing them with political loyalists accountable only to the president. It is a direct assault on the bedrock American principle of a government of laws, not of men, seeking to convert the machinery of state into a personal political instrument.

The most dangerous step, however, is the fusion of the unitary executive theory with presidential immunity. This creates a toxic, autocratic feedback loop. UET gives the president the sword: total control over the Justice Department. The Supreme Court's immunity ruling provides the shield: defining any use of that control—such as ordering the DOJ to prosecute a rival or drop a case against an ally—as an "official act" protected from criminal prosecution.

It is already happening. The recent announcement that the Department of Justice has launched a criminal investigation into former high-ranking intelligence and law enforcement officials John Brennan and James Comey—both prominent critics of the president—is a chilling illustration of the feedback loop in action. A president, asserting total control over the Justice Department, can now use that power to target political adversaries, shielded from accountability by the claim that such prosecutions are merely "official acts."

This is not an abstract debate over administrative procedure. It is a fight over whether the United States remains a republic governed by the rule of law or becomes a system where power is concentrated in one person, unchecked and unaccountable. The unitary executive theory exemplifies Scheppele's autocratic legalism in action—a constitutional democracy being dismantled not through violent coups, but through the patient, systematic weaponization of legal doctrine itself. Like the retrovirus that hijacks immune cells to destroy immunity, UET hijacks constitutional language to destroy constitutional constraints. When law becomes a weapon rather than a limit on power, the form of democracy may survive even as its substance dies. The theory provides the justification, but autocratic legalism provides the method, and absolute power remains the goal.