The New York Times recently warned its readers about a dangerous specter haunting the American republic: unitary executive theory. Alan Rappeport ominously wrote that the theory “rejects the idea that the government is composed of three separate branches.” If true, this would be deeply alarming news. Fortunately, however, that claim was wildly, ignorantly false and uninformed—so false, in fact, that the Gray Lady had to offer this correction: “The theory holds that the Constitution gives the president exclusive control of the executive branch, so independent agencies are illegitimate.” While closer to the truth, even this still is not quite right.

So, what is unitary executive theory and why does it matter, including to those of us in education policy? Let’s commence with the big picture, and then we’ll explore what it means for the supposed independence of the Institute for Education Sciences, the National Assessment Governing Board, and their various appointees.

As a starting point, if you accept separation of powers and checks and balances, as advocates of the unitary executive seem to do, then Congress will always retain some influence over the executive branch through the Senate’s Article II power to exercise advice and consent for appointments and treaties. Hence, it would be more accurate to say that unitary executive theory interprets the vesting clause of Article II as giving the president exclusive control over the executive branch subject to, as Alexander Hamilton put it in the debate over Washington’s Proclamation of Neutrality, “the exceptions and qualifications which are expressed in the instrument.”

The central issue in unitary executive theory is the president’s authority to remove executive branch officials, and its core preoccupation is trying to make the modern administrative state compatible with the Constitution. Sprawling agencies filled with employees armed with civil-service protections, and especially independent agencies with directors serving fixed terms, raise questions about constitutional accountability. The Constitution eschews unchecked power, and the modern bureaucracy seems largely immune to direct political control.

The argument for the existence of independent agencies made by their defenders is relatively straightforward. Some issues require expertise and specialization which in turn requires some insulation from immediate political pressure. For instance, prudently setting monetary policy presumably entails both a deep knowledge of the economy and the independence to resist calls to pursue short-term political gain rather than long-term economic health. Also, some basic data collection and analysis activities should, in theory, be beyond political and partisan manipulation. Critics of independent agencies question whether this kind of apolitical administration is realistic or if it instead camouflages the political preferences of agency employees under the guise of expert judgement. Even if independent agencies lead to good results, they argue, that does not make them constitutional. Defenders respond by saying that the founders could not have foreseen the complexity of modern society and that some latitude in how agencies are structured is therefore needed.

Trump has already launched its first attack on independent agencies. On February 18, he signed an executive order titled “Ensuring Accountability for All Agencies” that requires “all executive departments and agencies, including so-called independent agencies” to “submit for review all proposed and final significant regulatory actions” to ensure that they align with the administration’s priorities. Trump also fired the chair of the National Labor Relations Board, Gwynne Wilcox, and two Democratic members of the Equal Employment Opportunity Commission. Wilcox and a NLRB attorney who was also fired have sued, claiming that Trump’s actions violate federal statutes. Undoubtedly, they do. A district court judge has already ruled that Wilcox was illegally fired, so the question going forward is whether an appeals court—and almost certainly the Supreme Court—will say that the statutes violate the Constitution.

There are, as it turns out, stronger and weaker versions of the unitary theory position. “Unitarian fundamentalists” (a category of political believers who might outnumber religious Unitarians) contend that there can be almost no limits on the authority of the president to remove federal employees and direct the actions of federal agencies. Under this maximalist position, independent regulatory agencies violate the Constitution because their directors and board members are typically not subject to removal by the president except for cause. The fixed terms these individuals serve makes them immune from any immediate political control. It would be strange for the Constitution, which is designed to check institutions against each other, to allow Congress to create agencies that aren’t immediately subject to any direct political accountability.

Weaker versions of unitary executive theory argue that the president has near absolute authority when exercising core constitutional responsibilities such as supervising the military but must accept the authority of Congress to structure independent agencies so that there are removal protections. They accept Humphrey’s Executor v. United States (1935) as settled law. William Humphrey was fired as a commissioner of the Federal Trade Commission by Franklin Roosevelt because of policy disagreements. Humphrey sued, and after his death his estate continued the litigation on his behalf. The Supreme Court ruled that Congress could establish quasi-legislative agencies like the FTC and restrict the authority of the president to remove their members.

Perhaps no case better illustrates how the conflict has evolved than Morrison v. Olson from 1988. In this case, the Supreme Court upheld the independent counsel provision of the Ethics in Government Act. Independent counsels, once appointed, had an unlimited budget and could essentially choose when to end their investigations. The Court’s decision was 7-1, but Justice Antonin Scalia’s lone dissent is more important today than the majority opinion. He famously said, “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” While obviously in a minority at the time, his position eventually became widely accepted. In fact, when Democrats became disillusioned with independent counsels because of Kenneth Starr’s Whitewater investigation, they dusted off Scalia’s dissent to defend their position. In 1999, a bipartisan majority in Congress refused to reauthorize the provision. Given the widespread agreement with Scalia’s reasoning, which was grounded in unitary executive theory, you could say we’re all in some sense unitarians now.

The debate over the unitary executive has, of course, come roaring back with Trump’s reascension to the presidency. Quite obviously, his administration prefers the maximalist position. Undoubtedly, at least one of his actions will force the Court to reconsider whether Humphrey’s Executor can be reconciled with the Constitution. And it could involve education.

Unitary executive theory is particularly relevant to the Institute for Education Sciences, or IES. That’s because that Institute, and its four centers, are supposed to enjoy a degree of independence from the rest of the U.S. Department of Education and from political control via the president and U.S. Secretary of Education. The director of IES serves a six-year term, so as to span presidential administrations, is advised by a presidentially appointed board (the National Board for Education Sciences), and can only be removed for cause. Likewise, the director of the National Center for Education Statistics, or NCES, serves a six-year term. Finally, the National Assessment of Educational Progress, also known as the Nation’s Report Card, is overseen by a board (the National Assessment Governing Board, or NAGB) that is appointed by the education secretary. It is designed to span administrations and be largely apolitical.

The Trump Administration has already taken actions that challenge the independence of IES, NCES, and NAGB. It has canceled hundreds of millions of dollars in IES contracts, including those for an upcoming administration of Long-Term Trend NAEP for 17-year-olds. It also put Peggy Carr, director of NCES, on administrative leave, despite her appointment in 2021 for a six-year term. When asked why Carr was placed on leave, an administration spokesperson said it was because she was appointed by President Biden—a tip of the unitarian hand.

Given the relatively lower profile of these agencies, they might be an inviting test case for the administration. If IES lost its independence, it would hardly be as significant as if the same fate were to befall the Federal Reserve or the FTC.

President Trump, for his part, doesn’t seem worried about making others worry. Quoting Napoleon on X, “He who saves his Country does not violate any Law,” would be one obvious hint. However, debates and concerns about executive power have been interwoven throughout American history. Edmund Randolph famously called Article II the “foetus of monarchy” when he spoke against the Constitution in the Virginia ratifying convention. Today’s critics of Trump would be in a much stronger position if more of them had been at least half as concerned with dramatic expansions of executive power by presidents Obama and Biden. Thinking constitutionally requires thinking beyond your immediate political self-interest. After all, one day it might be your ox that’s getting gored. Lamentations about violating norms and principles are likely to be greeted skeptically if they only seem to arise when it’s politically useful. A constitutionalism of convenience is no constitutionalism at all.

Joshua Dunn is executive director of the University of Tennessee, Knoxville’s Institute of American Civics at the Baker School of Public Policy and Public Affairs.