IF YOU ARE TEMPTED to think that the question of unwritten powers claimed for the other two branches of government are a figment of my imagination you clearly weren't paying attention during the Reagan and George W. Bush administrations when future Supreme Court members were asserting the overtly fascistic theory of the unitary executive on behalf of Republican presidents they served as legal hacks.
Samuel Alito did so when he was working in the Office of Legal Council under Reagan as a means of un-illegalizing his covert arms sales-Central American terrorist funding operation, Iran-Contra, just as others have done and not only suffered no professional or legal consequences BUT WERE ELEVATED FOR THEIR PROMOTION OF FASCISM AS LEGAL SCHOLARSHIP.
John Dean in his book "Broken Government: how Republican rule destroyed the legislative, executive, and judicial branches," after noting Alito's part in giving legalistic mumbo-jumbo to give the criminals in Iran-Contra cover, noted what happened when it came up during his confirmation.
Judge Alito could not have been surprised when his position on unitary executive theory became a critical issue in his confirmation, and many people believe it was one of the key reasons [George W.] Bush selected him. Yet Alito's answers to all questions relating to this radical theory were, as one journalist wrote, "either confused or less than candid." For example, Alito was asked about a very recent dissenting opinion of Justice Clarence Thomas in Hamdi v. Rumsfeld (2004), claiming that The Founders intended that the president have primary responsibility and power necessary to protect the national security and conduct of the nation's foreign relations. Thomas's dissent was a pure expression of unitary executive theory, written in unitarian-executive speak:
"The founders intended that the President have primary responsibility - along with the necessary power - to protect the national security and to conduct the Nation's foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains. "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks."' The Federalist No. 70 (A. Hamilton). The principle "ingredien[t]" for "energy in the executive" is "unity." This is because "decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number." [Emphasis added.]"
When asked about Thomas's opinion, Alito's memory failed him - as it did every time this subject arose; Alito did not recall Thomas's even using the term "unitary executive." With Alito's confirmation to the Supreme Court there now are three justices who subscribe to this radical theory of expanded presidential powers: Antonin Scalia, Clarence Thomas, Samuel Alito; it is widely believed that Chief Justice John Roberts does as well.
I asserted at the time that every single person in the Senate Committee room knew that Alito (as well as Roberts) lied continually during their confirmations to cover up such activity of theirs, as well as other things other colleagues and the presidents they served did. Such opportunistic forgetfulness is so common among these legal luminaries that that alone should call into question their fitness for the jobs they are to be confirmed for.
Note that in coming up with his excuse favoring presidential lawlessness that Thomas didn't reach for the Constitution where no such powers are explicitly grated but to that most royalist, most democracy hating of the major founders, Alexander Hamilton in one of the propaganda papers written to promote the adoption of the thing. I think Aaron Burr may have done more to save the United States as a republic than anyone who shot a red-coat during the Revolutionary War.
I will note that the fascistic theory of the unitary executive was the creation of, if not wholly, mostly Republican law school faculties and other such intellectuals. I have no doubt, whatsoever that it is not unrelated to the powers that the Supreme Court found for itself and, as Louis Boudin proved, shifted and expanded to the point where we have what I would guess would have been unthinkable to him, such things as the Bush vs. Gore decision in which five Republicans put a member of their own party in the presidency where he put two of those fascism friendly "justices" on the court and through "signing statements" attached to legislation he signed, announced he and future Republicans would practice such unwritten, unaccustomed powers of the presidency in the future.
No doubt, as is typical of Supreme Courts, they would find ways of making such powers count only when the presidency is held by members of the Republican party such powers were creatively imagined for in the first place.
I will also note that, bringing this chapter of Louis Boudin's book to full circle that James Wilson was responsible for a lot of the language in the Constitution dealing with the Executive Branch that modern Republican-fascists have used or distorted to promote presidential fascism. I think Roberts and even perhaps Alito were a little bit scared when they saw how far that could go under a Trump (I have no doubt a Desantis or a Haley would do the same, though maybe not as gaudily) but I have no doubt that they would adjust their feelings to accommodate such a grab of power. The legal profession is quite capable of coming up with permission for clients and sides to do what is clearly wrong, it's largely what they do, especially when they choose to serve the rich and criminal.
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