Going Deeper

Guest Blogger

For the Balkinization Symposium on Stephen Skowronek, John A. Dearborn and, Desmond King, Phantoms of a Beleaguered Republic: The Deep State and The Unitary Executive (Oxford University Press, 2021).

Blake Emerson 

Phantoms of a Beleaguered Republic offers a penetrating diagnosis not only of the Trump presidency but of long running trends in American political development and public law. Stephen Skowronek, John A. Dearborn, and Desmond King argue that the “unitary executive theory” and the bureaucratic “deep state” are bound together as two antagonistic, pathological extremes in American political thought and practice. The investigations and impeachments of Trump and the bungled response to Covid-19 are not anomalous. Rather they are symptomatic of an unresolved and destructive conflict between plebiscitary presidential power and the durable norms of the administrative state.

I highly recommend the book to legal academics for its insights in placing recent crises in the context of “deep” problems of the American constitutional order and state structure. The authors build on the work of public law scholars like Jon D. Michaels, Anne Joseph O’Connell, Daphna Renan, and Jed H. Shugerman, and me to disentangle the hierarchical mechanisms that implement presidential will from the crisscrossing, horizontal lines of communication that tie the bureaucracy to Congress and to civil society, and that give the administrative state some independent standing of its own. Phantoms argues that these two dimension of the executive have come apart and entered into open conflict as the scope of state intervention has widened, ideological conflict has deepened, and the party system has become centered around presidential candidates. The problem, then, is neither the deep state nor the unitary executive standing alone but rather their mutually-destructive combat.

I want to argue that, despite the author’s protestations, their argument is one that cuts fairly strongly against the unitary executive and in favor of the republican virtues of a bureaucratic officialdom working in partnership with Congress and the public at large. The problem, then, is not the antagonism between the personal presidency and the institutional executive. The problem is the constitutional structure, Supreme Court jurisprudence, and political ideology that favors hierarchy, subordination, and unilateral discretion within the executive. The anti-republican relations and mentalities that constitute the unitary executive improperly and dangerously aggrandized the president’s place in American democracy.

To clarify what I take to be the authors’ position, it’s worth distinguishing the polemical allegation of the “deep state” from what they call “depth.” The “deep state” is an epithet for unaccountable, unelected bureaucrats who thwart the will of the elected president. The charge of deep state sabotage was frequently leveled by Trump and his allies. “Depth,” by contrast, describes a number of essential structural characteristics of the modern American state: its reliance on scientific knowledge and professional norms, its penetration into economy and society, its networks and connections with constituencies outside the government, its partial insulation from partisan-political control, and its complex system of internal checks and external monitors.

The unitary executive arose from the ashes of the Nixon presidency as an assault on such depth. It was a reactionary effort reassert the president’s command over law administration in the face of an expansive regulatory state and a Congress keen on executive oversight. The late Justice Scalia’s landmark dissent in Morrison v. Olson made the case for the unitary executive forcefully, rejecting statutory provisions that deprived the president of full control over prosecutorial and other executive functions. The Constitution’s article II vesting clause, he argued, gave the president not “some of the executive power, but all of the executive power.”  Scalia’s dissent showcased and encouraged a dangerous political psychology, in which officials at the very heights of governmental envision themselves besieged by hostile forces, and, in response, demand yet more discretionary power.

More recent opinions such as Free Enterprise Fund v. PCAOB, Seila Law v. CFPB and, just this term, Collins v. Yellen have given the unitary theory the force of law. These rulings have begun to pick apart the rules and structures that separate the administration of federal law from the president’s will. The Court is poised to achieve what Steve Bannon promised Trump would: the “deconstruction of the administrative state.” The Court might proceed to invalidate protections not only for a scattershot of anomalous agencies but perhaps also for administrative law judges, other inferior officers, and the civil service as a whole.

If the current line of precedent runs its course, we may end up in a situation where the president really does have the massive resources of the federal bureaucracy as an instrument of personal will. The threat here is not merely the specific changes in legal rules, which would increase the president’s freedom of action and limit the role for impartiality, professional competence, and deliberative-democratic engagement. The larger problem is the political and legal ideology of hierarchical power, amplified rather than constrained by bureaucratic administration, and supposedly legitimated by plebiscitary will and charismatic authority. That is a recipe for the destruction of not only the administrative but also the democratic and constitutional state. Carl Schmitt would look on all this with admiration.

One of Phantoms’ important contributions is to underscore that the purported originalist foundations for this kind of plebiscitary executive democracy are unsound. In Seila Law, Chief Justice Roberts stated that “the Framers made the President the most democratic and politically accountable official in Government.” Phantoms shows that the Framers did not conceive of the presidency in these terms. Quite the contrary, the original selection procedure sought to ensure that the president was insulated from electoral politics. The notion of the president as direct popular representative came later, first with Jackson and then with the Wilson, Teddy Roosevelt, and the Progressives. Both the Jacksonian democrats and the Progressives mediated presidential power through counterpart institutions, the first by way of a locally-anchored party system, the second by way of the professional norms and expert knowledge of the civil service. Today’s unitary theory is distinctive because the presidency is unmoored from such extra-constitutional controls. Unitarians understand the president’s relationship to the people to be immediate, with both the party and the executive establishment acting not as constraints on but rather as conduits for the president’s interests, preferences, and personality. In the haze of originalist rhetoric, the major changes in institutional structure that have given the presidency a democratic gloss have been folded back into a fiction of the Framers’ intent. Shorn of that ventriloquism, what’s really in the offing is a novel constitutional theory that centers the president and the courts as constitutional guardians and marginalizes the authority of Congress to structure federal offices and departments.

The analysis that Phantoms offers would seem to point quite strongly in one direction: the virtues of depth. The authors describe the “alternative to the unitary theory” as the “republican theory” (32). “A state organized along republican lines would likely develop collaborative arrangements for administrative control. It would rely on institutions that mediate what the Constitution separates and invite crisscrossing channels of communication with administration among the branches that are otherwise divided and juxtaposed” (33). These are precisely the arrangements that constitute the depth of the administrative state. The thrust of the argument, I would have thought, is that such depth is a logical outgrowth of republican constitutionalism, whereas the unitary executive theory is a Frankenstein’s monster, stitching dismembered fragments of constitutional text together with populist authoritarianism.

But that is not the authors’ declared position. They say that the deep state and the unitary executive are a “mutually constitutive package” and that they “draw each other out” (9). In their summary of the tumults of the Trump Administration, they conclude that “neither side comes off particularly well. Instead of endorsing a side, we recommend paying closer attention to a system now at odds with itself, a state out of kilter and no longer certain of its own assumptions” (p. 11). It’s hard to disagree that the state is out of kilter. But it’s not clear that depth is the problem. Many of the failures of the bureaucracy the authors discuss involved pretensions to personal power that were antithetical to executive-departmental norms.  FBI Director Comey seemed to be a unitary executive unto himself. He first departed from Justice Department policy when he revealed investigations into Hillary Clinton shortly before the 2016 election. He then relished the opportunity to present himself before Congress and in print as Trump’s constitutional nemesis. Likewise, when FBI agents investigating Russian interference in the election sent text messages about how they’d “stop” Trump from becoming president, that was not depth on display but hubris and bravado. Consumer Financial Protection Bureau Deputy Director Leandra English’s unsuccessful attempt to keep Trump’s appointee, Mick Mulvaney, from assuming leadership of the Bureau read more as the dead hand of the Obama presidency than as an assertion of professional competence. The authors suggest that these figures were symptoms of the excesses of depth. But these officials weren’t steadfastly adhering to legal requirements and departmental norms. They were out of their depth.

At the same time, it’s not quite right to say that what we need is just “more depth” or that depth alone is consistent with republicanism. Whether the departmental structure of the executive is genuinely attuned to republican values of non-arbitrariness and non-domination depends upon the norms that the bureaucracy embodies. The Mueller Report is an excellent example about how depth can be out of place. Mueller was depth personified. He was the gray on gray of the rational state. He had been steeped in Justice Department norms and regs for decades. The problem was that the Justice Department itself—particularly the Office of Legal Counsel (OLC)— developed rules, interpretations, and a culture of reflexive defense and empowerment of the president. So when it came to the question of whether Trump had obstructed justice, Mueller found himself twisted in nots explaining that, because of a Nixon-Era OLC Memo reaffirmed at the end of the Clinton Administration, he could not reach a traditional prosecutorial judgment. Sometimes depth is just an echo chamber for presidentialism.

At the end of the day, the authors say, “it really is all just a matter of norms” (p. 198). The viability of a government constituted by durable democratic purposes rather than personal will depends on the public’s capacity to reach some level of consensus or at least reasonable disagreement over national policies and projects. The party system, they suggest, has become far too candidate centered and has impeded a more diffuse and deliberative process of political will-formation. Embracing recent work by Brian J. Cook, they argue that the administrative state must be placed on firmer footing, independent from the president’s control. Michaels and I, in a different but related vein, have argued for steps the Biden administration could take to distribute and diffuse power to actors outside of the White House.

An additional lesson of the political whiplash of the twenty-first century has been that statutory law nonetheless has staying power. The Affordable Care Act is still with us, as is the Dodd-Frank Act, despite significant judicial amendments and interventions. As Abbé Gluck and Thomas Scott-Railton have shown, the programmatic success of the ACA has made it not only hard to destroy but has shifted public discourse towards more universal and solidaristic understandings of health care rights.

Successful administrative implementation of legislative policy, in other words, can help to shift and to generate shared norms. As we confront pressing issues such as infrastructure, climate change, immigration, and police violence, we need to think about how to enhance the durability and salience of the public institutions that make up the executive branch and are separate from the president’s will. People need to witness their government acting as an expression of their collective interests rather than as an instrument of a single representative’s personal prerogative. That means rethinking the structure of government agencies and the way they engage members of the public. Such bold, institutionally articulate public action faces serious obstacles from the Senate and its filibuster rules, the Supreme Court’s Article II adventurism, and the ongoing effort to undermine the right to vote. Confronting those obstacles is necessary but not sufficient. We need to build a new American state in which the people finds itself at home.

Blake Emerson is Assistant Professor at UCLA School of Law. You can reach him by e-mail at emerson at law.ucla.edu.