Day: June 11, 2025

William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I’d cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?”

― Robert Bolt, A Man for All Seasons: A Play in Two Acts

To understand the crisis in American higher education, it is necessary to hold two thoughts at once. American higher education remains the envy of the world, with seven of its universities in the top 10 of Times Higher Education’s World University Rankings. Yet the behavior on many campuses has caused public confidence in higher education to plummet. With a recent drop of 21 percentage points, only 36 percent now express a lot of confidence, while 32 percent have little or no confidence. Among those dissatisfied with higher education, politicization stands as a major cause of their dismay. Significantly, though, the public does not seem happy about the attacks on higher education coming from the administration, with only 27 percent approving. Those mixed messages may be the fingerpost for finding a solution.

Harvard has been among the worst offenders, with cancellations, shout-downs, disruptive encampments, and egregious antisemitic conduct. It makes a poor example of an innocent victim of unjust governmental persecution, as shown below. But whose interests are served if the cancellation of a $60 million federal contract and nearly $3 billion in grants and revocation of tax-exempt status cripple one of our country’s great research hubs? While the government is rightly concerned about apparent civil rights violations, discrimination, and campus behavior that violates the law, the treatment Harvard is receiving from the Trump administration is neither measured nor reasonable nor, according to many legal scholars across the ideological spectrum, within statutory authority. Yet worse is the federal government’s apparent willingness to accept the damage being done to American scientific progress. The administration’s indiscriminate cuts have impeded research to combat tuberculosis, HIV, cancer, and Alzheimer’s disease.  

The administration needs to take stock of the perilous precedent of intrusion beyond statutory authority into higher education governance. The federal government’s shot over the bow, so to speak, can be a catalyst for an overdue course correction. But putting that cannonball through the hull, while at the same time exceeding legal authority, would be an incalculable act of harm to the nation.

Harvard, however, must be honest about its failings, ready to apply remedies, and be energetic in its implementation. It is fair to start with recent items from Harvard’s rap sheet. On December 5, 2024, then Harvard president Claudine Gay notoriously tried to hide behind the pretext of “context” when asked if calling for the genocide of Jews violated Harvard’s rules against bullying and harassment. Less well known, but highly illuminating, is her silence, not long after the October 7 terrorist massacre, as a mob on Harvard Yard surrounded a student wearing a kippah, blocking his path and shouting “shame.” It does not speak well for Harvard that one of the perpetrators, whom the Suffolk County Court punished for misdemeanor assault, received, one year later, a $65,000 stipend from the Harvard Law Review for work “in the public interest.” The other convicted student was selected as a class marshal by his graduating class at the Divinity School. Harvard’s secretive governing board, the Harvard Corporation, stuck by President Gay, even as evidence of her serial plagiarism mounted, until the scandal ultimately forced their hand. She returned to the faculty with compensation of approximately $900,000.

President Gay’s failures are only part of a tawdry history of professional and ethical failures at Harvard.

On June 29, 2023, the same day that the Supreme Court ruled in Students for Fair Admissions (SFFA) v. Harvard that race-based admissions violate the US Constitution and that Harvard was out of compliance with the law, Harvard declared, “We will determine how to preserve, consistent with the Court’s new precedent, our essential values”—that is, Harvard would find ways to use race as a factor in admissions. A previously optional prompt for application essays became mandatory: “Harvard has long recognized the importance of enrolling a diverse student body. How will the life experiences that shape who you are today enable you to contribute to Harvard?” Harvard appeared ready to use this question to find demographic information about applicants.

Harvard has had scant place for those who dissent from its progressive policies. Seventy-seven percent of the faculty now self-report as liberal or very liberal, and only 3 percent as conservative: The maintenance of its monoculture has been willful, and its treatment of those who violate it is brutal. In 2019, Harvard removed Professor of Law Ronald Sullivan and his wife from their positions as faculty deans of Winthrop House after it came to light that he served, as lawyers are wont to do, on the legal defense team of someone accused of a heinous crime—in his case, Harvey Weinstein. In 2021, Harvard evolutionary biologist Carole Hooven, who had enjoyed a distinguished teaching career, was shunned and ostracized when a student director of diversity, equity, and inclusion (DEI) found her insistence that male and female are valid scientific terms “transphobic,” even though Dr. Hooven had unequivocally confirmed her support for transgender rights. The dean of arts and sciences at that time was Claudine Gay. Neither Dr. Gay nor anyone in Dr. Hooven’s department came to her aid, and no graduate student would work with her once she was labeled with the scarlet letter of transgressing DEI standards. Economist Roland Fryer’s meticulous research showed that blacks were not more likely than whites to be the victims of police shootings—although blacks were more likely than whites to be subject to unwarranted police stops. This was heresy for the woke. It was not long before Harvard took its revenge under the pretext of punishing Professor Fryer for jokes told by and to colleagues in his laboratory. The Office for Dispute Resolution had recommended “workplace sensitivity training” to resolve the contretemps. But with Dean Claudine Gay as a key participant in the final adjudication by a panel of tenured faculty, the recommendation of the Office for Dispute Resolution rose to a two-year suspension without pay and the permanent shuttering of his laboratory.

Then came October 7, 2023. The next day, while Israel reeled from the immensity of the Hamas assault, 34 Harvard student groups celebrated Hamas and blamed Israel for the terrorist attack it suffered. President Gay needed three days to condemn the atrocity and distance Harvard’s leadership position from the student groups. How serious was Harvard about restoring order after the campus was overtaken by encampments that interfered with classes and co-curricular activities? When students occupied a building on campus, the deans brought them burritos and Twizzlers. On May 10, acting on his threat to the students occupying Harvard Yard, interim president Alan Garber put 20 students on “involuntary leave” after they refused his attempt to negotiate an end to the encampment. Four days later, he reversed that decision when the protesters agreed to disperse.

Harvard’s report on antisemitism, released on April 29, is searing. For example, it reproduces a graphic used in four sections of a required Harvard Graduate School of Education course. The “Pyramid of White Supremacy” places the (Jewish) Anti-Defamation League in the category of offenses just below hate crimes. There is significant evidence of anti-Israel dogma appearing in official Harvard classes. Harvard’s decision to release the antisemitism report simultaneously with its report on anti-Muslim bias sends a strong signal that Harvard is still incapable of addressing directly and purposefully the increasing campus antisemitism that then president Lawrence Summers identified and decried already in 2002.    

Harvard’s other self-inflicted wounds can only serve to offend the sensibilities of the public. Harvard’s “Red Book,” General Education in a Free Society, written in the spirit of the West’s emergence from World War I, called for learning “the general art of the free man and the citizen” and suggested a course called “Western Thought and Institutions.” Now what stands is a tepid requirement with a menu of some 20 courses, including “Ethics of Climate Change.” By 1975, even students majoring in history faced no requirement for a course on the history of our nation in the curriculum for the major.

Enumerating the sins of Harvard is not difficult, and Harvard will need to be more transparent and specific than it has been about the way it will measure the effectiveness of its reforms. Moving forward will not be easy, and if it is to happen, both Harvard and the Trump administration will need to adjust their positions and their rhetoric. There is every reason to do so.

Harvard can justifiably remind the nation of the breakthroughs, especially in health sciences, that its partnership with the federal government has yielded. In 2014, with support from the National Institutes of Health (NIH), Harvard’s Douglas Melton generated functional human pancreatic insulin-producing cells from stem cells, putting us on the way to a type 1 diabetes cure. In 2024, Harvard’s Gary Ruvkun, funded by NIH, was co-winner of the Nobel Prize for the discovery of microRNA (miRNA). The discovery underpins therapies for cancer, heart disease, neurodegenerative diseases, strokes, alcoholism, and obesity. The list of federally funded grants to Harvard that help us live longer and better is very long.

A wholesale assault on university-level research signaled in the freezing of grants to Harvard will be catastrophic for the well-being of America. Harvard has begun layoffs. Speaking of freezing, biodata from 350,000 individuals, representing 45 years of research, are in jeopardy of loss without funding to maintain the massive freezers that store them. The samples have led to the discovery of the dangers of trans fats, the link between obesity and breast cancer, and that between cigarette smoking and coronary disease. Ongoing research into the early detection and treatment of Lou Gehrig’s disease (ALS) under government contract with Harvard Medical School is under work stop.  

Other nations are hungry to gain a share of America’s global leadership in science and medicine. Americans have won far more Nobel Prizes in physics, chemistry, and physiology/medicine than any other nation can boast. But according to a survey conducted by Nature, of the 1,600 scientists polled, 75 percent are considering leaving the country. The process of luring our scientists abroad has, in fact, started. France’s Centrale Supelac has allocated 3 million euros to finance research projects that were cut in the US. Aix-Marseille Université announced it is accepting applications for its Safe Place for Science program. It will support about 15 American scientists and appears to have received over 150 applications. The title of a May 2025 article in the Financial Times, “UK steps up efforts to woo scientists fleeing the US,” says it all.

Another potential victim in this contretemps is the law. The haste to punish Harvard, and other elite institutions, must end. Process matters. Title VI, which prohibits discrimination, has clear procedures for investigation and sanction (42 U.S.C. § 2000d). Revocation of Harvard’s tax-exempt status based on the factually very different 1983 Supreme Court case Bob Jones University v. United States is unlikely to survive legal challenge, but the specter of weaponizing the IRS should strike alarm across the political spectrum. A weaponized IRS will be an equal opportunity tool for future presidents to abuse, as if the matter of Lois Lerner was not sufficient warning. As Justice William Rehnquist noted in his dissent in Bob Jones University v. United States, the IRS must not arrogate to itself the making of policy that is the prerogative and responsibility of Congress. Muse on Cicero’s words, “It is impossible for a state without law to use its faculties. … We are slaves to the law, so that we can be free” (“Pro Cluentio,” 146).

What, then, is the way forward?

On April 11, 2025, the General Services Administration, the Department of Education, and the Department of Health and Human Services sent a five-page letter to President Garber with the administration’s demands. Many of the demands are straightforward and reasonable, such as procedures to curtail disruption and deplatforming, a policy to control the wearing of masks, better student disciplinary codes, merit-based hiring and admissions, monitoring of donations from overseas, and ending DEI. Others, like the demand for changes in governance procedures, submission of admissions and hiring data to the federal government, and hiring a “critical mass” (unspecified) of new faculty to achieve intellectual diversity in each department, along with the admission of a “critical mass of students,” suggest a dangerous agenda of governmental control.

There is room for productive negotiation. There are even issues outside the April 11 letter that could meaningfully be addressed. Indirect cost rates that universities add to the cost of implementing a federal grant for their administrative expenses deserve scrutiny and transparency. (Harvard charges 69 percent on top of the project cost.)

For Harvard not to comply with the administration’s call for a policy curtailing the wearing of masks to conceal identity is senseless. All colleges and universities will benefit from a policy that forbids the wearing of facial coverings on campus, except for medical or religious reasons, and mask-wearers should always be ready to present ID to campus officers when asked. Such a policy has been implemented at three Virginia public universities (the University of Virginia, James Madison University, and Virginia Commonwealth University). Columbia University has signaled its intent to comply. Tighter policies to stop disruptions and student misbehavior are eminent common sense.

Moreover, a campus nearly devoid of faculty identifying as libertarian or conservative is prima facie evidence of ideological discrimination. Harvard will need more than verbal assurance of meritocratic hiring practices to convince anyone of its newly asserted ethic, though there are less intrusive ways to do this than the precipitous hiring demanded by the federal government.

Attempts to evade the Supreme Court ruling ending race-based admissions are unconscionable. At the University of North Carolina–Chapel Hill, the co-defendant in SFFA v. Harvard, the board of trustees resolved not only to ensure scrupulous observance of the decision but to extend race-blind practices to hiring and contracting. Nothing like that came from Harvard. Governing boards that, for good reason, do not want Leviathan’s intrusion into their campuses need to ensure fair admissions, fair hiring, and freedom from discrimination. This is their moment for strong, principled institutional governance. There are powerful figures within the Harvard community who understand this and are speaking out forcefully and eloquently.

But it must be said out loud: Limited government is a core value within the American concept of liberty, especially for classical liberals and conservatives. It is reasonable and wholesome in a free society for private institutions to challenge governmental fiat and intrusion into their operations. It behooves the Trump administration to respect such boundaries.

Holding two thoughts at once and recognizing complexity in crafting policy has not been a virtue demonstrated by either the Trump administration or by elite universities. It is time for that to change. 

Political theory that becomes unmoored from political reality creates a dangerous disconnect—one that undermines the fundamental purpose of governance itself: human flourishing. This core truth has repeatedly emerged throughout American constitutional history. The Articles of Confederation, while theoretically sound in their protection of state sovereignty and checks against centralized power, ultimately failed in practice, proving inadequate for addressing the commercial, security, and unity challenges of the early republic. Similarly, the original constitutional provision for state legislatures to elect senators—a system designed to protect federalism and ensure deliberative selection—eventually collapsed under the weight of practical concerns about corruption, deadlock, and democratic representation.

Rogers’s defense of the unitary executive theory would benefit from greater consideration of its practical fit with the underlying purpose of our constitutional order. While intellectually rigorous and grounded in constitutional text and history, it risks becoming another case of constitutional theory that floats above the turbulent waters of actual governance. The daily evidence of administrative turbulence, limited accountability, and expansive uses of executive power contradicts the neat theoretical constructs that unitary executive proponents advance. Rogers himself seems to acknowledge this disconnect by explicitly limiting his analysis to descriptive rather than normative claims.

However, this separation between constitutional description and normative evaluation creates a fundamental problem. Any enduring analysis of the unitary executive must engage with how this structure functions amid contemporary political dynamics—the intense polarization, the weakening of institutional norms, the collapse of congressional oversight capacity, and the increasing concentration of power in the presidency. A constitutional theory that cannot account for these realities may confine its utility to academic discourse.

The fundamental test of any governance structure must be its capacity to advance human flourishing—to create conditions where citizens can lead secure, meaningful, and self-directed lives. By avoiding engagement with how the unitary executive theory operates within our current political landscape, Rogers sidesteps the most crucial question: Rogers sidesteps the most crucial question: Does this constitutional understanding actually serve the interests of the people? Without addressing this question, even the most elegant constitutional theory remains incomplete at best and potentially harmful at worst, perpetuating structures that may undermine the very liberties the Constitution was designed to protect.

The Unitary Executive in Practice

Two key aspects of Rogers’s defense of the unitary executive lack sufficient grounding in the political reality of today. First, he contends that a unitary executive fosters accountability. Second, he contends that this conception of executive power aligns with a robust system of checks and balances. When considered in light of the current political moment, neither rests on sturdy ground. 

On accountability, the sort of accountability hoped for by Rogers under a unitary executive does not materialize when subjected to empirical scrutiny of electoral outcomes and political discourse. Ironically, the very concern that Hamilton expressed about a plural executive, which Rogers paraphrases as allowing “blame shifting” and confounding “the ability of voters to hold executives responsible for administration,”—has manifested in a different form under the unitary model.

This manifestation takes the form of what might be called a “unitary dividend”—a phenomenon that parallels the concept of a “liar’s dividend” in public discourse. Just as the liar’s dividend allows those with a tendency toward dishonesty to strategically leverage their mendacity by selectively claiming what they meant what they said, the “unitary dividend” enables administrations to expand executive authority to its furthest boundaries when politically advantageous, while strategically disclaiming responsibility when those same powers produce unfavorable outcomes. Recent administrations—both Biden’s and Trump’s first and second terms—have repeatedly leveraged this dividend, exercising extraordinary executive authority on certain issues while simultaneously arguing that other governmental actors bear the constitutional responsibility when their initiatives falter. The result is a fog of accountability that leaves the public uncertain where to direct their democratic judgment. Though the Biden administration never explicitly embraced Rogers’s conception of the unitary executive—defined as the “president [having] authority to direct all parts of the executive branch”—its operational approach often reflected precisely this understanding.

The COVID-19 pandemic provides a compelling case study of this unitary dividend in action under the Biden administration. President Biden exercised sweeping executive authority by instructing Anthony Fauci and other officials to implement what many considered an expansive and intrusive federal pandemic response, including the suspension and termination of federal employees who failed to comply with Fauci’s directives. Yet when politically expedient, the administration redirected blame toward various external actors—social media platforms, vaccine-resistant citizens, and perhaps most significantly, Congress. This strategic oscillation between asserting maximal executive authority and deflecting responsibility created precisely the accountability confusion that proponents of the unitary executive theory, including Hamilton, had hoped to prevent.

Similarly, despite asserting significant authority in directing the nation’s foreign policy apparatus, President Trump frequently redirected responsibility toward Congress when confronting unfavorable geopolitical developments. In 2017, congressional actions became the administration’s preferred explanation for heightened tensions with Russia, despite the executive branch’s constitutional primacy in foreign affairs. More recently, Trump has partially attributed ongoing trade volatility with China to Congress’s passage of the 2022 CHIPS and Science Act, creating a narrative of divided responsibility that obscures the administration’s own policy choices. This pattern of selective accountability coexists with the administration’s willingness to exercise far-reaching foreign policy authority that sometimes operates at the boundaries of established legal and political norms.

This historical pattern reveals a misalignment between the theoretical accountability promised by unitary executive and the lived reality of our democratic system. Rogers, like many constitutional scholars, works from an idealized conception of voter capacity that assumes citizens possess sufficient information, political knowledge, and civic motivation to first identify the responsible governmental actors and then translate that assessment into electoral consequences. The empirical record tells a different story—one where voters consistently support parties that have implemented unpopular or even demonstrably harmful policies, where complex lines of authority remain obscured, and where the theoretical clarity of the unitary executive dissolves into the murky waters of modern media strategy and political messaging.

In short, the promise of democratic accountability through a unitary executive faces significant challenges in today’s political environment. A strong executive with centralized authority may paradoxically dilute accountability by creating a system where responsibility is more difficult to pin down. When executive power is concentrated in a single figure with broad authority and minimal means of accountability outside of the extreme of impeachment, the public may lack an effective means to evaluate the complex chain of decisions and delegations that occur within the executive branch. The tendency of recent administrations to develop and execute sophisticated media strategies may also shift narratives of responsibility away from the administration.

Checks and Balances

This lack of clear accountability invites a broader constitutional concern: How do our traditional checks and balances respond to emerging power vacuums and institutional ambiguity? The systems of checks and balances envisioned by Rogers assumes that Congress and the courts act in defense of their respective institutional powers, thereby counteracting the fervent expression of executive power involved with the unitary executive. Political reality suggests otherwise. A unitary executive is not necessarily in conflict with a system of checks and balances. A Youngstown Sheet & Tube Co.-type analysis makes this clear. The first bucket involves each of the three branches fully and vigorously using their respective powers. In this case, checks and balances are firmly in place. The second bucket occurs when the executive operates under the unitary executive theory, yet only one other branch takes the equivalent approach. Here, the system of checks and balances may not immediately or adequately prevent an executive from exceeding their authority. But, on the whole, the system works as intended. Finally, on the third bucket, an executive operates to the full bounds of the unitary executive theory while the other two branches evidence deferential tendencies to the executive. This scenario raises significant concerns as to the viability and sufficiency of the system of checks and balances. We may find ourselves here now, facing a governance landscape in which the legislature hesitates, the courts retreat, and the executive assumes expansive authority over technologies shaping the public sphere.

The current political reality reveals a Congress increasingly controlled by members more loyal to party than to institutional prerogatives. Congressional representatives often demonstrate greater allegiance to a president of their own party than to Congress as an institution, rendering legislative checks ineffective. When public confidence in political institutions erodes, as multiple polling sources indicate is occurring, traditional checks and balances may no longer function as intended.

Similarly, the judicial branch, particularly the Supreme Court, has demonstrated a complex relationship with executive power. While sometimes providing checks on executive overreach, the Court has also shown deference to presidential authority in key areas like national security and immigration. The current 6-3 conservative majority on the Court may further complicate this dynamic, potentially showing greater deference to certain uses of executive power while restricting others based on ideological rather than constitutional considerations.

Though the occurrence of this third bucket may seem like an anomaly, it warrants further and more frank analysis by Rogers.

Effective Governance and the Unitary Executive

The primary blind spot in Rogers’s piece rests with his selection of constitutional principles to defend the unitary executive; he omits effective governance. In my own work on the right to effective governance, I argue that “early Americans shared a belief that the underlying purpose of the government was to advance the well-being of the governed.” That belief informed the decision to abandon the flawed Articles of Confederation and adopt a structure more aligned with the social, economic, and political realities of the day. Rogers failed to explore whether a unitary executive, in practice, has advanced the general welfare. As an aside, effective governance need not and should not have a partisan valence—it merely refers to the capacity of the government to address the essential purposes for having a central authority, such as coordinated international and economic policy, provision of national defense, protection against invasions of fundamental rights, and the like.

Effective governance requires systems that can respond to complex challenges with appropriate speed, expertise, and democratic input. The unitary executive theory, while appealing in its theoretical clarity, may actually impede these goals in practice. As evidenced by recurring administrative failures across administrations of both parties, concentrating decision-making power in a single executive has not demonstrably improved government performance on some of the aforementioned basic aspects of effective governance.

The structural flaws of a unitary executive reveal themselves in systematic governance breakdowns that go beyond individual leadership qualities. When presidential authority dominates the executive branch, we often witness the deterioration of institutional expertise as career officials with specialized knowledge depart amid shifting political winds. The centralization of decision-making authority creates bottlenecks that prevent nimble responses to emerging challenges, as evidenced by the sluggish adaptation to numerous crises over the past two decades. Perhaps most concerning is the policy whiplash that occurs when each new administration reorients entire agencies around presidential priorities rather than enduring public needs—a phenomenon we’ve seen play out dramatically across trade policy, healthcare implementation, and immigration enforcement.

Consider the cascading failures we’ve witnessed in critical infrastructure oversight. The Federal Aviation Administration’s delayed response to alarming air traffic controller shortages exemplifies how centralized control can impair timely action. Despite years of internal warnings from technical experts, political appointees delayed implementing recommended staffing reforms. This pattern repeated itself with the East Palestine train derailment, where regulatory capture and centralized decision-making diluted safety standards that independent regulators had long advocated. These weren’t failures of individual leadership but predictable outcomes of a governance model that subordinates expertise to hierarchical control. More generally, a massive reduction in executive branch staff does not bode well for the ability of the federal government to efficiently and sufficiently respond to threats to public well-being. As Andrew Rudalevige, a political scientist at Bowdoin, relayed to The New York Times: 

The damage caused to governmental expertise and simple competence could be long lasting. Firing probationary workers en masse may reduce the government employment headcount, slightly, but it also purged those most likely to bring the freshest view and most up-to-date skills to government service, while souring them on that service.

Similarly, troubling patterns emerge in how executive agencies handle fundamental rights. The due process failures in immigration proceedings stem directly from the executive branch’s ability to reshape entire enforcement apparatuses without meaningful checks. When presidents can unilaterally reconstruct agency priorities—as we’ve seen with abrupt shifts in enforcement targeting, detention policies, and asylum procedures—the consistent application of law gives way to political expediency. These compromises of fundamental rights aren’t bugs but features of a system that concentrates too much authority in a single elected official with incentives that often diverge from safeguarding individual liberties.

What these cases highlight is that the unitary executive theory fails to address a fundamental requirement of democratic governance: institutional capacity to deliver results that serve the public good while protecting core rights. A governance model focused solely on hierarchical control without equal attention to expertise, deliberation, and institutional knowledge may consolidate authority without improving outcomes. Historical experience suggests that effective governance emerges not from concentration of power but from thoughtfully designed systems that balance democratic accountability with professional expertise, rapid response capabilities with careful deliberation, and centralized coordination with distributed implementation.

Conclusion

Rogers’s exploration of the unitary executive makes valuable contributions to our understanding of constitutional design. However, its disconnect from contemporary political reality undermines its practical relevance. A more balanced approach would recognize that effective democratic governance requires not just clear lines of authority, but also robust institutional capacity, appropriate checks on power, and mechanisms to ensure that democratic accountability genuinely functions.