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.