The Unitary Executive Endgame is Upon Us

This essay appeared in the Sept. 23, 2025 edition of UNFTR’s premium newsletter. Become a UNFTR member to receive our bonus newsletter each week and for other perks.

I’m not sure what this says about the United States’ commitment to maintaining an open “democracy” (quotes intentional), but it appears we’ve reached a point in this political project where nothing matters. If critical questions are raised, they’re promptly buried by the next crisis, whether it be the erosion of free speech, military occupation, or the disproportionate power the executive branch has amassed over all of us.

No doubt, we’ve pushed back against attempts at overreach, but the struggle to hold presidents accountable for executive overreach—especially when it comes to endless war and borderless violence—has been all but lost. For a people living under the rule of an empire (an unarguable point), it’s both sad and shocking that little has been done to try to seize back the powers once entrusted to Congress and the courts. The former has long abdicated that power, most egregiously its war-making authority, which it’ll seemingly never get back after nearly a quarter-century of abdicating its responsibility. Representatives ostensibly elected by the people have allowed multiple administrations to take full control of who and when we kill, such that this awesome responsibility has been almost entirely assumed by the executive.

Congress has surrendered. Trust me, I don’t say this casually—it’s the unvarnished truth. How else are we supposed to interpret more than two decades of executive dominance when it comes to war? That the media has for so long beclowned itself by disproportionately focusing on culture war politics and electoral horse races over a successful executive coup of war powers has confirmed my admittedly nihilistic view of the corporate media—that it’s a failed institution, given the primary responsibility of journalism is to hold power to account, not shill for corporations or the government. And with so little attention from the media on seemingly incalculable foreign entanglements, drone strikes, and special operations (just the ones we know about), the public is left to assume such actions have no bearing on their personal lives, hold no societal implications, or lack broader significance.

No event or set of policies has been as instrumental in creating the conditions for our collective undoing as the so-called War on Terror. Each administration (although Biden comparatively less so, to be fair) has stretched executive powers and aggressively pursued legal justifications with little regard for precedent-setting, so much so that we’ve finally reached the point of inevitability.

Recency bias tells us Trump is the worst of these actors—which may very well hold true—but George W. Bush, with the unitary executive theory-obsessed Dick Cheney as his vice president, oversaw the most seismic change to our constitutional protections in a generation. Just two weeks after the attacks on 9/11, the Patriot Act was written. A little more than a month later, it became law, gutting Fourth Amendment protections. Only a single senator voted against the bill.

“The act amended 108 preexisting criminal justice statutes and created nine new ones, changes designed to equip the country’s law enforcement agencies with new weapons to fight the intelligence battles of the war on terror,” Karen Greenberg wrote in her book, “Rogue Justice: The Making of the Security State.”

“Agents could now search telephone and email records, get access to individual and corporate financial data, and search homes and businesses—all expanded powers that reduced the protections of the Fourth Amendment,” she added. “Some activities, such as wiretapping, still required court orders, but the act made those orders much easier to obtain.”

Bush and Cheney were living up to the vice president’s promise he made on “Meet the Press” just five days after the attacks about the country working “the dark side.”

“We’ve got to spend time in the shadows in the intelligence world,” Cheney said. “A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.”

Perhaps Cheney, a creature of cloak-and-dagger-style Cold War battles, could never conceive of the politics of open domination and vengeance embodied by Trump and his allies, most notably Stephen Miller. But it was all made possible by the neocons who dominated Washington after 9/11 and Obama, who dramatically transformed the U.S. military apparatus into one of the most efficient killing machines on the planet with his expansion of the drone program. Civil liberties groups became reviled by Obama’s extrajudicial killings, including of an American citizen and many innocent civilians, the exact number of which remains unclear.

The drones that stalked the countryside of Pakistan, Yemen, Afghanistan, Somalia, Libya, Iraq, and Syria now reportedly prowl the Caribbean, targeting seemingly defenseless vessels allegedly operated by drug traffickers. Indeed, the drone wars are inching ever closer to the U.S. mainland.

On Sept. 2, Trump, in an unprecedented action, ordered the U.S. military to attack a ship in the Caribbean, which purportedly originated from Venezuela, killing 11 people on board. The Trump administration claims the vessel belonged to Tren de Aragua, but offered no evidence to support its claims. The administration has executed two other Caribbean attacks since, killing three on Sept. 15 and another trio a few days later. This also comes as the administration has designated several cartels as foreign terrorist organizations, including Tren de Aragua on Feb. 20.

But listing an organization as such doesn’t give the U.S. carte blanche to kill alleged members of any group—if that were the case, the country would be relentlessly striking targets all over the world.

It appears the administration is using dubious Article II authority under the War Powers Resolution to justify the attacks—justification that constitutional and international law experts aren’t buying.

Remarkably, in his letter to the Senate announcing the first strike earlier this month, Trump not only provides no evidence of the Tren de Aragua connection, but doesn’t even name the organization in writing. It’s devoid of any information tying the people on the boat—whose identities are also not listed—to any particular country or group. Instead it’s full of vague legalese, including this critical portion:

“Accordingly, at my direction, on September 2, 2025, United States forces struck a vessel at a location beyond the territorial seas of any nation that was assessed to be affiliated with a designated terrorist organization and to be engaged in illicit drug trafficking activities.” (“Assessed to be affiliated”—who made the assessment and affiliated with whom or what?)

That’s all lawmakers received. In essence, they’d have to be reading the news to fully grasp the gravity of the attack.

Beyond questions about war authority, some have speculated that the three strikes violate laws against committing murder, which the Obama administration had to contend with in its justification for killing Anwar al-Awlaki, a U.S. citizen.

“[A]bsent further facts that haven’t yet been disclosed, the strike would appear to have implicated the federal felony murder statutes,” Marty Lederman, the executive editor of Just Security, wrote. (Read his entire interrogation of the legal implications here.)

Lederman isn’t alone. Ryan Goodman, a New York University law professor who previously served at the Pentagon, told the New York Times that it’s “difficult to imagine how any lawyers inside the Pentagon could have arrived at a conclusion that this was legal rather than the very definition of murder under international law rules that the Defense Department has long accepted.”

In that same article, someone who should know a thing or two about extrajudicial killings, Jeh Johnson, former Homeland Security Secretary under Obama, suggested even this was beyond the bounds of conventional U.S. warfighting.

“Viewed in isolation, labeling drug cartels ‘terrorists’ and invoking the ‘national interests’ to use the U.S. military to summarily kill low-level drug couriers is pretty extreme,” he said.

Charlie Savage, the Times reporter who wrote the story, astutely noted how the Trump administration’s rationale seems to “gesture” toward the Obama-era DOJ opinion in 2011 that it had the “constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest.” (Thanks, Obama.)

This is where we’re at—from the amorphous legal interpretation of the still active 2001 AUMF (which has been used to justify everything from extrajudicial killings to new wars) to a president acting unilaterally out of “national interest.”

We’re in uncharted waters.

Look out below.

Image Source

• The U.S. National Archives, No restrictions, via Wikimedia Commons. Changes were made.