“A Shining City on a Hill”: The Unitary Executive and the Deep State

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).

Steven Gow Calabresi

I respectfully disagree with the title Phantoms of a Beleaguered Republic:  The Deep State and the Unitary Executive, just as I disagreed with the title eleven years ago of Bruce Ackerman’s book: The Decline and Fall of the American Republic (2010).  Both titles are just plain wrong.  The American Republic is a rising power in the world, and it is not in any way beleaguered or in a state of decline and fall.

In fact, the U.S. Constitution, as amended, works so well that it has made the United States what President Ronald Reagan once called “A Shining City on a Hill.”  We are a beacon of liberty and democracy to our NATO allies, to the peoples of Ukraine and Taiwan, and to our East Asian Allies.  Millions of people would leave Asia, Africa, and Latin America to live in the U.S. if they could.  No Americans are leaving the U.S. to move to Canada or New Zealand or Switzerland.  This tells us that the amended U.S. Constitution is a good and well-functioning document despite its age.  Consider some numbers that show just how good the U.S. Constitution is.

Last year, GDP per capita was $63,544 in the U.S; $42,330 in the U.K.; $41,504 in the European Union; $10,926 in Russia; and $10,504 in China.  Americans are much wealthier and more productive than are Europeans, and we are incomparably wealthier and more productive than are Russians and the Chinese.  We lead the world in science, thanks in part to the Silicon Valley, and we developed not only the world’s two best Covid vaccines, but also, the internet, the I-Phone, and better batteries with which to power electric cars.  Our space program is second to none, and we are the only country in the world to have landed men on the moon. We have also landed five out of six rovers on the planet Mars that have been sent to the red planet from earth. 

Thanks to the American invention of fracking, we have been weaning ourselves off of coal, and thanks to Donald Trump and fracking, the United States became a net energy exporter in 2019.  We have plans, in place, to export liquified natural gas to Germany and China both of which continue to use much more coal than we do.  We have reduced carbon emissions by 13% below our 2005 level.  In contrast 24% of German energy is produced today, in 2021, by burning coal. 

The United States remains, as President Franklin D. Roosevelt once called us, “The Arsenal of Democracy.”  We spend $715 billion a year to defend, not only the United States, but also the NATO and East Asian democracies with which we are allied.  China, in contrast, spends $178 billion and Russia $61.7 billion mostly on their offensive nuclear weapons, which are aimed at us.  We are the most powerful nation militarily in the world.  We also have the third largest population in the world, and we are fourth largest nation, in the world, in territory.  The Framers did indeed, as Gordon Wood has written, create an Empire of Liberty.

Notwithstanding a very tarnished U.S. legacy with respect to race, almost three-fourths of all the out migration from Africa, since 1990, has been to the United States.  This trend is so striking that it is referred to as the fourth great outmigration from Africa.  In 2017, the African born population living in the United States was 2.1 million people.  Obviously, the U.S. has extremely serious problems with systemic race discrimination and inequality, which President Biden and a Democratic Congress are in the process of addressing, but those problems are not deterring a massive exodus from Africa to the United States.  Only a handful of African Americans leave the United States each year to move to Africa and that was most likely a Trump-era isolated phenomenon.

I do not even agree that we live in a Beleaguered Republic, notwithstanding the events of January 6, 2021.  Former President Donald Trump put the Framer’s Constitution through a stress test with his bogus claims of election fraud between November 3, 2020 and January 20, 2021. Our Republic passed with flying colors.  Trump brought more than 60 lawsuits in federal and state court challenging his clear loss of the 2020 presidential election, and Trump lost every single lawsuit he brought, including in cases decided by Trump-appointed judges.  The conservative majority on the Supreme Court did not intervene to protect Trump and not a single justice suggested that it should do so.  Career appointees in the Departments of Defense and Justice co-operated in the peaceful transfer of power to President Biden.  The Senate and House of Representatives counted the presidential ballots on January 6^th despite efforts by a Trump inspired mob to prevent this from happening.  As a direct result Trumpian fascism failed, and the Madisonian system of checks and balances and respect for the rule of law worked brilliantly.  We do not live in a Beleaguered or Fallen Republic.  Democrats recaptured the House of Representatives, in 2018, and the presidency in 2020.  The federal courts enjoined many of Trump’s lawless actions including his original ban on Muslims traveling into the United States, and his efforts to put a citizenship question on the census.  The systems of checks and balances works today in 2021.

The Constitution, which has produced these good outcomes, creates a unitary executive.  It also provides the means with which to build a deep state.  Our energetic and unitary executive is crucial to the out-sized role the U.S. plays in foreign affairs and in defense.  Article II, Section 1 says that “The executive Power shall be vested in a President of the United States of America.”   The Constitution says nothing explicitly about “depth” in the executive branch nor does it give the Congress an oversight power, but it does grant Congress the sole power to create offices, departments, and agencies within the executive branch.  Moreover, employees of the executive branch can be protected from removal at will.  Of the two million or so people who work in the executive branch, more than 99% of them are employees under current Supreme Court case law.

The text of Article II does give to the President the sole power to remove all principal, superior, inferior, and recess appointed officers of the United States except for Article III judges.  The legislative history of Article II confirms this.  Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L. J. 541 (1994).  My study of the removal power of colonial Governors from 1607 to 1776, publication of which is forthcoming, confirms that colonial Governors had sweeping removal powers that even extended to the power to remove judges.  There were no independent agencies in colonial America.  Americans in 1787 understood the president’s executive power as including a power to remove executive officers. 

Moreover, every president from George Washington to Donald Trump has exercised, asserted, and defended presidential power to remove executive officers.  Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive:  Presidential Power from Washington to Bush (Yale University Press 2008). Unbroken practice over the last 232 years thus confirms that, except for a few oddball commissions, presidential removal power of executive officers of the United States is the norm.  Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S.  ___ (2020); Free Enterprise Fund v. P.C.A.O.B., 561 U.S. 477 (2010). 

Most of the 2 million people who work in the government are employees, however, like scientists, specialists in foreign countries, translators, librarians, research analysists, economists, clerks, executive legal advisors, cooks, gardeners, and janitors.  Since they do not exercise executive power, the president does not have the constitutional power to remove these employees if Congress forbids him from doing so.  Employees are defined by the Supreme Court as being federal workers who lack the power to, on their own, interfere with the life, liberty, or property of any person.  That is a category that includes 99% or more of the executive branch.

There are powerful policy arguments for recognizing unilateral presidential removal power over officers who exercise executive power.  Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Arkansas L. Rev. 23 (1995); Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 Minn. L. Rev. 1696 (2008).  Absent a unitary executive, cabinet departments and agencies get captured by the so-called congressional “oversight” committees.   The members of these committees can serve 20 or even 46 years, as in the case of Senator Edward M. Kennedy, whereas presidents are in-and-out of office in at most 8 years.  The oversight committees, in turn, are captured by special interest groups.  The House and Senate Agriculture Committees are captured by farmers, the Labor Committees by Unions, the Finance and Ways and Means Committees by Wall Street, the Judiciary Committees by Lawyers, the Armed Services Committees by hawks on national defense, and the Foreign Relations Committees by internationalists. 

Coalitions of special interest groups may come together to capture the presidency for four or eight years, but it is very hard to do this consistently as recent one term presidents like Donald Trump, George H.W. Bush, and Jimmy Carter have found out.  On balance – most of the time – the threat of interest group capture comes from the congressional committees and not the president.  What then are the congressional committees, which are no-where mentioned in the Constitution?  They are the stunted growths of parliamentary cabinet ministries the Chairs of which are barred by the Incompatibility Clause of Article I, Section 6 from jointly serving in Congress and holding an executive office.  But, for the Incompatibility Clause, we would have a parliamentary system of government with complete interest group capture.  But, for the unitary executive, cabinet officers and inferior officers would be bullied into doing whatever congressionally captured committees want done.  Steven G. Calabresi & Joan L. Larsen, One Person, One Office:  Separation of Powers or Separation of Personnel, 79 Cornell L. Rev. 1045 (1994).

The Constitution’s unitary executive leads to energy in government, and it empowers the voters who turn out every four years for presidential elections, which are billed as being of momentous importance.  In contrast, the mid-term elections typically draw only 40% of the voters most of the time, and an electorate of voters who are mainly mad at the president.  Steven G. Calabresi & James Lindgren, The President:  Lightning Rod or King?, 115 Yale L. J. 2611 (2006).  This is why the party in control of the White House usually loses seats in congress and in state legislature in elections held in the mid-term or in an odd numbered year.

Much attention in Phantoms of a Beleaguered Republic is paid to the threat of presidents like Donald Trump:  1) mismanaging the White House staff; 2) interfering with our rightly non-politicized Department of Justice; 3) interfering with science and expertise-based claims of power; 4) keeping acting officers in office to maximize presidential strength; and 5) stymieing congressional oversight.

So how does the Constitution address the need for “depth” in government?  By providing for midterm elections every two years and presidential elections every four.  By requiring that the Cabinet and Agency Heads and all Deputy and Assistant Cabinet Secretaries be Senate confirmed, which ensures quality and moderation and good relations on Capitol Hill.   The Vacancy Act undoes this and should be repealed. 

The Supreme Court decision in NLRB v. Noel Canning, 573 U.S. 513 (2014) makes it much too easy for the President to make recess appointments, and it should be overruled.  Congress should specify the order of succession for every Cabinet Department so that the President does not have discretion as to who is an Acting Officers.  Presidential lawmaking ought to be eliminated altogether by the Supreme Court reviving the non-delegation doctrine, which the Court appears to be ready to do.  Congress has delegated way too much power to the President and his subordinates. 

Congress should re-write the law to require Senate confirmation of White House Chiefs of Staff and of White House Counsels.  In addition, administrative law judges ought to be nominated by the president and confirmed by the senate with tenure during good behavior.  This too would add depth to the Administrative State while conforming it to the structure of the Constitution.

These are all changes to our current laws and practices, which might make the U.S. an even better country to live in than it already is.  But, it is inaccurate, in the extreme, to describe the U.S. today as being a beleaguered republic.  I agree with the book that President Trump’s handled the Covid-19 crisis terribly, although his prize for developing a vaccine by early November was brilliant and produced by far and away the world’s two best Covid-19 vaccines -- the Pfizer and Moderna treatments.  I also agree with the book that Trump violated many norms, which may now need to be codified. But, we should not “remake” the Constitution because of a once in 232 years oddball- president like Trump.  And, liberals should realize that originalists who want a unitary executive like me also want a vigorous non-delegation doctrine; an Article III administrative law judiciary; and, above all else, a government of checks and balances.  We abhor fascist as well as socialist dictators, which is why, in 2020, I voted for Joe Biden.

Steven G. Calabresi is Clayton J. & Henry R. Barber Professor, Northwestern Pritzker School of Law. You can reach him by e-mail at s-calabresi at law.northwestern.edu.