Wednesday, July 14, 2021

Are the Phantoms Real?

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).

Anya Bernstein & Cristina Rodriguez 

            In Phantoms of a Beleaguered Republic, Steven Skowronek, John Dearborn, and Desmond King artfully juxtapose two central features of the conservative legal movement’s decades-long attack on the administrative state: the shadowy bureaucrat wielding obstructive regulations on the one hand, and the empowered president who reins in such unaccountable power through tight control of the executive branch on the other. In President Donald Trump’s distorted conception of the office he inhabited for four years, our national administration became the “deep state” – a term previously used to deride behind-the-scenes military control of civilian government – conniving to thwart the all-powerful CEO of the country. Phantoms well illuminates these two poles of today’s conservative legal theory (at least in its conspiratorial version). And it disrupts that theory, highlighting the benefits of depth to a well-run government. At the same time, by taking on the conspiracy theory’s juxtaposition as its own frame for analysis, the book also misses the way that presidential administration doesn’t just undermine or challenge administrative depth, but also participates in and re-enforces it. 

            As the title suggests, the book presents both the deep state and the unitary executive as ideas that haunt our conceptions of and debates about government. As a narration of conservative legal theory, that’s fair enough. The authors then complicate the notion of “depth,” pushing it from its original implication of an unauthorized shadow hand controlling the entire enterprise to a more positive notion, one that values the widespread development of experience, expertise, and ethics throughout the bureaucracy. They then pile disturbing accounts of Trump’s efforts to enervate the state on top of one another, contending that his administration has “shown us the full implications of a unitary executive, . . . turn[ing] electoral decisions into an iron cage in which the rest of us are trapped.” Phantoms at 195. 

We would push the analysis further to underscore that one side of the deep-state-vs-unitary-executive juxtaposition is more phantasmagoric than the other. To be blunt, expertise and experience in our state is in fact deep, and we agree with the authors that this depth is a good thing. But our executive has never been unified. Indeed, even President Trump’s attempts to centralize power hardly comported with unitary executive theory’s acknowledgment of the president’s constitutional—rather than autonomous—role in faithfully executing the laws. What is more, the political influence that runs throughout the administrative state is not always or even primarily ominous and malign, as the unitary specter implies. 

            To begin with the rehabilitation of depth: “Administrative power in America does not easily conform to tight hierarchical lines of control, but it has sunk deep roots into the nation it serves.” Phantoms, at 15. What a Trumpian skeptic regards as a threat (perhaps to private profit, or to presidential power) is in fact, in the authors’ telling (though more by implication than by direct argument), part of the virtue of our vast bureaucracy—the expertise to make government run and approximate the truth through data and science; the professionalism to hew to statutory authorities; the judgment and strength to resist impetuous whims. Rather than simply choosing between deep state and unitary executive, the authors suggest, we need to decide “whether we value what depth has to offer.” Phantoms, at 195. 

            And value it we should. No modern state can operate, much less promote the welfare of its people, without the kind of depth the authors describe. The unitary executive, on the other hand, is the true phantom in this story. It is a fictional impossibility, a formal invention with no corporeal form. The Trumpian depredations catalogued with flair in the book are pretenses to totalizing control, but they are also tantrums—tantrums with consequences, sure, but not the organized beginnings of a complete takeover. Depth, combined with breadth and complexity, make it well-nigh impossible for a president to centralize and control the entirety of the state. That would require levels of discipline not held by our previous president, as well as unlimited time to avoid the inevitable difficulties of setting, and the inevitable conflicts of then acting on, practical priorities. Meanwhile, any such attempt at single-handed power is also complicated by the overlapping jurisdictions and competing interests of dozens of agencies; the dispersion of statutory mandates authorizing and requiring administrative actions; and just the sheer number of things the government does. The myriad people and institutions involved in government decisionmaking, the range of roles they occupy in the process, and the complexity of their relationships to one another all constrain the possibility of unifying the executive branch. Ours is a decidedly fragmented executive. 

At the same time, presidential and political influence do reach the far corners of the state. The thousands of political appointees who populate the executive branch, often supervising career officials, are simultaneously officials of an elected political regime and also close collaborators with the civil servants who provide the depth that the book describes. Career officials and political appointees are sometimes presented as oppositional forces—competing representatives of the very phantoms that Phantoms discusses. But when you get them talking about their work, another pictures emerges. 

In our own work together, conducting interviews with dozens of administrators from across the federal government—civil servants and political appointees alike—we found neither a unified executive nor a bifurcated power struggle, but an integrated, differentiated state. Our interviewees described the two groups as contributing different kinds of approaches to government and holding different kinds of responsibilities within the bureaucracy. Civil servants were seen to offer institutional memory, subject matter knowledge, technical expertise, and a feel for regulatory practicalities. Political appointees brought strong policy perspectives, provided the impetus for change, and took responsibility for making the final call. 

These two types of officials, in their respective roles, work together in decisionmaking. The regulatory process is complex. Career officials and political appointees provide the different—complementary and sometimes rivalrous—forms of reasoning and judgment it requires. The picture our interviewees presented is not one without conflict: many administrators expressed frustrations with their counterparts or discussed difficult decisions where the two approaches were pitted against each other. But no one suggested that one needs to, or ought to, choose between the two approaches, nor between passing whims and rigid technocracy. On the contrary, our subjects presented the political and the career—one might say the executive and the deep state—as complementary modalities. 

But while presidential influence abounds in the accounts of policy formation and legal interpretation we heard, it was seldom direct or even explicit. Our interviewees described the president as channeling priorities, not issuing orders. Indeed, many described taking their cues not primarily from the president himself, but from ideas associated with the political coalitions and interest groups aligned with the regime in power. In other words, pervasive presidential and political influence over the administrative state does not necessarily confront us with the “ineluctable question” of “whether we are finally resigned to let go of old republican values and accept a strong, hierarchically controlled presidential democracy.” Phantoms, at 201. That is because presidential influence is already integrated into our administrative state, as a diffuse but pervasive value-setting force. Rather than threatening to obliterate administrative expertise, though, presidential influence usually works in tandem with it to produce administrative actions. 

The integrated picture we have described does not account for the administrative state in its entirety, of course. Given the state’s complexity and diversity, we believe that no single model could. But our findings do offer a way to reconcile the seemingly contradictory expectations that administration be expert and independent, but also responsive to the needs and preferences of the people. The reconciliation takes place right inside the agency, in the persons of its variegated but complementary personnel. 

Phantoms does a crucial service by highlighting how destructive the unitary executive fiction can be, especially when wielded by a self-dealing president contemptuous of the institutional mediation of interests, not to mention the expertise, that the administrative state is set up to foster. And we wholeheartedly endorse the book’s call to value depth more, and more explicitly—to recognize the importance of “instilling administration with an integrity of its own” and not be beguiled by unitary executive theory’s “oddly contrived…belated push for constitutional clarity” and its strange suggestion that “the only way to figure out what to do now is to try to divine what [the framers] really meant.” Phantoms, at 201-203, 21. 

Phantoms’ discussions of the Trump administration’s soap-operatic crisis cycles powerfully demonstrate both the dangers of consolidated presidential power and its limits. The next step, we think, is to look inside the state to understand how actual presidential influence—rather than the phantasmagoric unitary executive—functions there. Our research suggests that everyday governance does not usually juxtapose conflicting, incompatible phantoms of institutional structure. Rather, it progresses through the ongoing interplay of differentiated but complementary decisionmaking modalities that express a more grounded, less phantasmagoric, version of the impulses that Phantoms illuminates. 

Anya Bernstein is Professor of Law at SUNY Buffalo School of Law, and Cristina Rodriguez is Leighton Homer Surbeck Professor of Law at Yale Law School.









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