How Reagan-Era Battles over Affirmative Action Fueled Unitary Executive Theory

A desire to change civil rights policies has long shaped the conservative legal movement’s vision for asserting presidential control over the administrative state

John Roberts with President Reagan and President Trump

Two of the primary motives animating the second Trump presidency have been an effort to exercise absolute control over the executive branch and a desire to purge policies, programs, and personnel related to diversity, equity, and inclusion.

After taking office, President Donald Trump signaled that these two goals were intertwined, directing that “all executive departments and agencies” should “terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements” and “further order[ing] all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” From rescinding executive orders on affirmative action in federal contracting to targeting the concept of “disparate-impact liability,” the administration has sought to put this policy vision into practice in the executive branch and beyond.

The aggressiveness, speed, and scope of this effort has been extraordinary. Yet it is no surprise to see a Republican president attempt to wield presidential power to change how civil rights laws are interpreted and implemented. In fact, two of the civil rights agencies that have been targets of the Trump administration – the Equal Employment Opportunity Commission (EEOC) and U.S. Commission on Civil Rights (USCCR) – were the subjects of pivotal fights in 1983. As I discuss in my new article in Studies in American Political Development, the Reagan administration deployed its emerging unitary executive theory in disputes with those agencies over affirmative action.

While by no means the only front on which the administration pursued the theory, the efforts of the Reagan White House and Department of Justice (DOJ) to clamp down on what they viewed as hostile civil rights agency bureaucrats led to critical assertions and elaborations of the theory’s tenets about the president’s executive power under Article II.

In the Trump administration today, principles of unitary executive theory are everywhere, being used to justify firing civil servants, targeting independent regulatory commissions, and impounding funds. With the Supreme Court poised to weigh in on such cases, it is worth looking back at some of the early applications of unitary executive theory in government, episodes which involved some of the current justices.

One of these conflicts was between the Reagan DOJ and the EEOC. Given the Reagan administration’s goal of pursuing court cases to try to chip away at and overturn affirmative action policies, the DOJ was wary of the EEOC. In June 1982, then-Special Assistant to the Attorney General John Roberts raised concerns about the EEOC’s stances being inconsistent with administration positions. Complaining to Attorney General William French Smith that “the Solicitor General’s office, in consultation with EEOC,” had been “present[ing] arguments to the Supreme Court which were totally inconsistent not only with general Administration policies but with specific and announced priorities of your own,” Roberts argued that “the policy input of the Civil Rights Division is needed” and suggested that the “Solicitor General’s office” should “keep the Civil Rights Division fully advised of all EEOC filings.”

This conflict escalated in early 1983 amid the administration’s intervention in Williams v. City of New Orleans, a case before the Court of Appeals for the 5^th Circuit that involved a challenge to a race-conscious promotion plan for the New Orleans Police Department. The DOJ submitted an amicus brief opposing the plan, but the EEOC wanted to file an amicus brief taking a different side on the issue.

Then-Chairman Clarence Thomas wrote on behalf of his fellow commissioners to indicate their frustration with the DOJ’s position: “we feel that the Department’s attempt to initiate a major and, as it turned out, newsworthy change in the government’s Civil Rights policy, without even consulting the Equal Employment Opportunity Commission, constitutes not only a sharp departure from acceptable standards of inter-agency protocol but was an action taken in derogation of this agency’s statutory designation as the chief interpreter of Title VII of the Civil Rights Act of 1964, as amended.”

But the DOJ pushed back. The head of the Civil Rights Division, Assistant Attorney General William Bradford Reynolds, responded by stressing what the overall policy stance of the administration was: “This Administration’s opposition to hiring and promotion quotas based on race or sex was explicitly set forth in the Republican Party platform. It was repeated on numerous occasions, both during the campaign and after election, by the President.”

Critically, Reynolds went further, requesting an opinion from the Office of Legal Counsel (OLC) on the matter. That OLC opinion, provided by Assistant Attorney General Theodore Olson, stressed two lines of reasoning to find the EEOC did not have such authority to file a brief in the case. One was statutory, with the OLC arguing that “the EEOC’s litigating authority under Title VII of the Civil Rights Act is limited to the enforcement of claims against private sector employees,” not state or local public sector employees.

But the second line of reasoning stressed the constitutional authority of the president. Describing the EEOC “as an executive agency subject to the supervision and control of the President,” the OLC argued that “the Commission may not represent on its own behalf a position in court that is contrary to that taken by the Executive, through his delegee, the Attorney General.”

The opinion then made a statement of the unitary executive theory as a justification: “To permit otherwise would raise serious constitutional issues relative to the unity and integrity of the Executive.” The EEOC ultimately declined to file its brief (though it did end up being leaked and included in another civil rights brief submitted in the case).

Another conflict in which the Reagan administration asserted unitary tenets was with the USCCR. In this case, the president sought to remove commissioners viewed as hostile to the administration’s civil rights agenda, producing significant controversy amid congressional consideration of that agency’s reauthorization. The OLC asserted that the president had removal authority over commissioners, citing both its authorizing statute’s lack of clarity on the issue and asserting the president’s “constitutional duty to ‘take care that the laws be faithfully executed’” under Article II required that he “must be able to exercise control over those whom he has appointed to assist him in discharging this responsibility.”

Similarly, the White House staff sought to assert that the history of the commission was one of presidential control, not of independence. Then-Office of Policy Development Deputy Assistant Director for Legal Policy William Barr argued that Reagan would not be “the first President to use his appointment power to change the character of the Commission.”

Fed up with the administration’s assertions and Reagan’s effort to fire three commissioners in late 1983, Congress dealt the administration’s unitary reasoning a partial defeat. It reauthorized the commission in a way that gave commissioners statutory protections from at-will removal by the president and allowed Congress some of the commissioner appointments.

Still, Reagan ultimately achieved his political goal of the USCCR being composed of a majority of commissioners skeptical of affirmative action. And the administration issued a notable signing statement stressing tenets of the unitary executive theory, alleging that the agency’s structure was “inconsistent with the tripartite system of government established by the Framers,” that the “restrictions [that] have been placed upon the power of the President to remove members of the Commission,” and that “because half of the members of the Commission will be appointed by the Congress, the Constitution does not permit the Commission to exercise responsibilities that may be performed only by ‘Officers of the United States’ who are appointed in accordance with the Appointments Clause” of Article II.

While these battles had mixed outcomes in the short-term, they had significant legacies for presidential power and civil rights. These conflicts show how the Trump administration’s push for control of the EEOC and USCCR has been a longstanding conservative goal. At the EEOC, President Trump moved to fire two Democratic commissioners and to redeploy the agency to target DEI policies. At the USCCR, the administration has sought to unilaterally install its preferred chair and to have the Department of Government Efficiency target the agency.

Bill Barr, with President Reagan and President Trump

Moreover, these episodes involved later prominent conservative legal figures like John Roberts, Clarence Thomas, and William Barr. For example, during the first Trump administration, Barr authored a memo – before being selected as attorney general – that articulated one of the most muscular and overt versions of unitary executive theory: “Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch.”

Furthermore, the link that these conflicts underscored between the unitary executive theory and the civil rights bureaucracy has been widely understood and emphasized by subsequent generations of conservatives. After Trump’s 2024 victory, for example, the influential conservative activist Christopher Rufo asserted that the president would face resistance “from inside the executive branch itself, in defiance of Article II of the Constitution, which opens with the unqualified statement: ‘The executive Power shall be vested in a President of the United States of America’” by officials “steeped in left-wing race and gender ideology.”

President Trump’s war on the civil rights bureaucracy may be an escalation, but it has been decades in the making. Civil rights agencies have always been in the crosshairs of the conservative push for a president to wield “all of the executive power.”

John A. Dearborn is an Assistant Professor of Political Science and Carolyn T. and Robert M. Rogers Dean's Faculty Fellow at Vanderbilt University. His principal research and teaching interests include the Presidency, Congress, American Political Development, American Political Thought, and Archival Methods. @johnadearborn.bsky.social‬