A Response to the Readers of Phantoms

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).

Stephen Skowronek, John A. Dearborn, and Desmond King

We are delighted to have this opportunity for intellectual exchange with the community of law scholars through Balkinization. Each of the scholars who posted reactions to Phantoms of a Beleaguered Republic engaged the book with insight and verve, and collectively they have given us a lot to chew on. We wish we could elaborate responses to all the points raised, but we will rest content for now with a few short reflections, down payment on what we hope will be a continuing dialogue.

We’ll start with the book’s title, for several of the readers puzzled over that. The “Deep State” and “the unitary executive” are conjectures, extrapolations from the notoriously complicated design of American government. We dubbed those two ideas “phantom twins” because they draw each other out from the shadows of the constitutional structure. Insistence on a unitary executive, hierarchically controlled by the president, is bound to provoke resistance from administrative operatives, if only because the place of administration in the design of American government is ambiguous. And resistance to presidential control is just as certain to elicit outrage from the “chief executive,” stiffening claims on behalf of executive branch unity and administrative subordination.

Perhaps because we are political scientists, we did not feel compelled to insist that there must be a solution to this conundrum somewhere within the Constitution itself. Sometimes ambiguities are just ambiguities. What we did seek to show was that different solutions have been arrived at serially and pragmatically. American government has been reconfigured repeatedly over the course of its history to address these basic design issues, and the various reconfigurations arrived at have all been grounded in extra-constitutional (not un-constitutional) innovations and contrivances. We argued that looking to this long history of improvisation might prove a surer path forward than looking squarely to the Constitution per se.

Daphna Renan’s idea that the Constitution invites these rearrangements and “develops” through them is well taken. But we sought to show something more specific. Up to the 1970s, the solutions arrived at all reflected a similar bargain. Each accommodated a stronger role for the president in the political leadership of the nation, but each also relaxed the separation of powers in favor of collaborative arrangements for sharing power over the executive branch. We dubbed these “republican remedies” because they superseded the woefully attenuated provisions for national political leadership in the original constitutional design without suffering the framers’ nightmare and allowing the executive branch to become a strong arm of presidential populism. We observed further that in recent decades, these cooperative arrangements have been displaced by others that promote presidential populism and, along with it, a more confrontational style of governing. That signaled to us a “beleaguered republic,” one in which the phantoms harbored by the Constitution are harder to contain and prone to take flight.

Jack Balkin’s rumination on doppelgangers for the Deep State and the unitary executive is equally on point. While the “Deep State” is a phantom which plays on fears of power that cannot be called to account, “depth” is a real and valuable attribute of this state, one which underwrites continuity, consistency, competence, and collaboration. Balkin wonders whether there is a corresponding parallel behind the “unitary executive,” whether that phantom might have a more attractive empirical counterpart of its own. This is something we could have been more explicit about, for there is an answer implicit in our text. The doppelganger for unity in the executive is to be found in all those extra-constitutional contrivances that have sought to instill greater “unity” in governmental operations at large. While the theory of the unitary executive is built on a principle of separation, each of the republican remedies we reviewed in our book sought to bridge the divides between the branches, to promote more cooperative governing arrangements, and to lend greater unity to what the Constitution separates. The Progressives’ reconfiguration was especially revealing in this regard. It sought to join what the Constitution separates (president and Congress) while at the same time separating what the Constitution joins (politics and administration).

No one has more ably advanced the theory of the unitary executive than Steven Calabresi, so it comes as no surprise that his response to our book brackets Trump as an “oddball” and diminishes the structural problem his presidency exposed. Nonetheless, Calabresi offers up a healthy list of reforms, and it is hard to credit that list without thinking that the problem we identify is quite real after all. To smooth the tensions exposed during the Trump administration between a unitary executive and the need for depth in government, Calabresi would extend Congress’s hand over administration quite broadly, and among other things, require Senate confirmation for presidential intimates in the White House. Whatever the prospects for such reforms, they are certainly in the spirit of republican remedies and, as such, constructive overtures to finding common ground.

Our more serious disagreements with Calabresi stem from our unwillingness to dismiss the Trump presidency as an anomaly. Scholarly advocates of a unitary executive have been surprisingly squeamish about recent presidents who have practiced what they preach. Perhaps that is because presidents are not constitutional theorists but political actors who seize upon ideas that are useful to them. In our book, we sought to shift the discussion of the unitary executive away from arguments over the merits of the theory and to focus instead on the practical implications of its basic tenets.

In that regard, the Trump presidency remains enormously clarifying. Trump grasped the idea of executive branch unity and ran with it. Before he was finished, he had gone quite far in stripping away depth and the values that depth protects. Even career civil servants – the “employees” who Calabresi says are safely insulated from presidential power – found their long-established protections targeted, besieged, and, in some cases, uprooted. As Stephen Griffin notes, advocates of the theory within the administration began to back away once the full implications of unitary control became clear.

Perhaps more to the point, Trump’s performance illuminated the strong affinity between claims to a unitary executive and the kind of presidential populism that is promoted by our current system of presidential selection. Trump showed how contemporary nomination and campaign protocols can be used to effect the hostile takeover of one of our major parties and to create a personal party all but indifferent to collective control and responsibility. It is no accident that a party like that finds a kindred spirit in the theory of a unitary executive.

Both Griffin and Blake Emerson pick up on this theme. It seemed to us no small detail that when the framers of the Constitution vested the executive power in the president, they took care to depoliticize the office with a selection procedure that was blind and indirect. Empowerment and selection were connected textually. That original scheme may have proved a nonstarter, but it was a package deal. The practical coupling of a strict reading of the vesting clause with today’s radically different procedures for nomination and election strikes us as perverse. It produces exactly the kind of presidentialism that the framers of the Constitution were at pains to avoid.

Several posts read our book as a defense of depth against the threat of a unitary executive. Fair enough. Sampling the action at a wide variety of sites where the unitary executive and the Deep State faced off, we concluded that the threat posed by arbitrary imposition to the values that depth protects far outweighed the risks of bureaucratic subversion that come with depth. To be sure, we found ample evidence of the latter, some of it far more serious than the usual complaints of the unitarians about special interest capture. But the baggage that comes with depth (at least that which has been exposed thus far) seems to be handled quite adequately by other, less draconian means.

Some of the posts go further, dismissing the unitary theory as obviously wrong. Victoria Nourse makes the case on constitutional grounds. She argues that the textual supports for the unitary executive are gerrymandered, shearing the vesting clause of necessary context in relation to Article I or the rest of Article II. It’s a point that comports well with our insistence on reading the vesting clause in conjunction with the selection procedure. In a more practical and empirical vein, Anya Bernstein and Cristina Rodriguez note that depth has long been a feature of American government and that the executive branch has “never been unified.” Drawing on their interviews with civil servants and political appointees, they find that the competing values of responsiveness and independence are, as a rule, reconciled “right inside the agency.”

Our view is a bit different, and more in line with Emerson’s post. Whatever its shortcomings, the theory of the unitary executive continues to make institutional advances. Its precepts figure prominently in recent Supreme Court rulings (Lucia v. SEC, Seila Law v. CFPB, U.S. v. Anthrex, and Collins v. Yellen), and President Biden has already indicated that he has no intention of disavowing the new powers the Court has passed to him. As Emerson puts it, “Article II adventurism,” sanctioned by the Court, is gaining ground and remaking our government.

Refutation of the theory will only take us so far. That’s why we turn to the more fundamental question, the political question: do we value what depth has to offer or not? If we value depth, our history recommends rethinking our methods of presidential selection and political mobilization, in particular with an eye toward restoring a semblance of collective responsibility. Our Constitution won’t protect depth if we don’t value it, and if we don’t value it, our democracy will remain vulnerable to the worst excesses of presidentialism.

We began our book noting that modern modes of government in America have strained a variety of institutional relationships basic to its constitutional frame. The relationship between the president and the executive branch is one of them. It was thrust to the fore in dramatic fashion by the Trump presidency, and we seized the opportunity afforded to explore the fault lines opened on that front. But we did not mean to slight tensions building elsewhere. We agree with Paul Gowder that bureaucrats are not innocents. Going further, Gowder rejects the Deep State/unitary executive binary and calls attention to the threats that both pose to individual rights. This point strikes a chord as well. As Balkin notes, one of us (Skowronek) wrote in a similar vein about the erosion of rights and structure that occurs as government begins to tackle problems along a widening front and the domain of policy in governance expands (Orren and Skowronek, The Policy State). Ironically, while Balkin detects in Phantoms some qualms about depth and reads them as lingering skepticism of the policy state, Gowder detects our qualms about legalism and reads that as an implicit endorsement of the policy state.

Suffice it to say, we maintain a healthy skepticism toward power in all its forms and cast a critical eye on each relationship we scrutinize. That does not mean, however, that we think that all arrangements are the same or that we can’t distinguish between better and worse at any given site. Our tribute to the American state lies in our abiding faith that we are still free to choose.

Stephen Skowronek is Pelatiah Perit Professor of Political and Social Science at Yale University. You can reach him by e-mail at stephen.skowronek at yale.edu.

John A. Dearborn is Assistant Professor of Political Science and the Carolyn T. and Robert M. Rogers Dean’s Faculty Fellow at Vanderbilt University. You can reach him by email at john.a.dearborn at vanderbilt.edu.

Desmond King is the Andrew W. Mellon Professor of American Government at the University of Oxford and a Fellow of Nuffield College. You can reach him by email at desmond.king at nuffield.ox.ac.uk.