Monday, July 12, 2021

Depth and Unity


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).

In their remarkable book, Skowronek, Dearborn, and King speak of twin "phantoms": The first is the Deep State. The second is the Unitary Executive.

Phantoms are ghosts. Ghosts are not real, but they scare people all the same. Phantoms scare people because they disguise and distort. They disguise what is actually the case. They also distort our understanding, making what is normal or even normatively attractive into an evil bogeyman.

The book's metaphor thus suggests that behind the twin phantoms are two far more respectable doppelgangers. The phantoms are frightening, distorted versions of these two models of American governance.

What are those two models?

It's fairly easy to identify one of the two doppelgangers, because the authors name it at the beginning of the book. The normal and normatively attractive entity that corresponds to the phantom of the Deep State is what the authors call "depth." Depth is the increasingly dense articulation of governmental power that might, in theory, reach to many different areas of life. But it is also a republican ideal focused on the realization of the public good. It presupposes expertise and scientific understanding. It exalts communication and deliberation between different parts of government. It lives through rules and procedures that limit arbitrariness. It insulates reasoned decisionmaking from naked political calculation. It encourages shared responsibility and accountability for decisionmaking. And it necessitates cooperation between the branches of government. Depth is an answer to the question: How shall we achieve government in the public interest?  To a large extent, American constitutional development has relied on depth, especially since the Progressive Era, to do the public's business, even if the instantiation of depth in American history has been imperfect in important respects. For the most part the authors like depth, and think it has gotten a bad rap from its detractors.

Fair enough. But what is the other doppelganger, the normatively attractive and less scary version of The Unitary Executive? What is the sensible normative vision concealed behind the bogeyman? Here the authors are more circumspect. Sometimes it seems that they don't actually think that there is an attractive alternative vision of governance. Maybe the bogeyman is real!

At other points, however, an answer comes through, especially when they discuss the efforts of Democratic Presidents: "Democratic presidents, committed as they are to the social revolution and to an even more extensive federal government, have seized upon the idea of executive hierarchy and unity because it helps them pursue their political agendas administratively. Presidents of both parties share an interest in immediate action on their policy and ideological commitments, and for that, the idea of an executive branch unified under presidential control has bipartisan attraction." (p. 35) At this point the authors drop a footnote to Skowronek and Orren's book, The Policy State: An American Predicament.

Like depth, this vision of government also derives from the Progressive Era. Progressives sought to break through the blockages of outmoded constitutional forms. They wanted a government that was simultaneously more flexible and responsive, that grasped the challenges of the moment and brought active, energetic government to bear on them. The president would be the key figure in this new vision of governance. To borrow language from Alexander Hamilton, the President would bring energy, activity, and dispatch to the pursuit of the public's business and the promotion of the public good.  Since the early twentieth century, presidents of both parties have seen themselves as American tribunes of the people, leading their parties to victory and then promoting favored policies. Moreover, as the twentieth century turned into the twenty-first, presidents resorted more and more to administration rather than legislation, and to unitary action rather than cooperation with Congress. Unity is not inherently anti-expertise or anti-deliberative. Energetic presidents, interested in implementing policy for the public good, can make good use of expertise and deliberation. But expertise and deliberation should always be tools for the promotion of energetic government, not hindrances to it, and never ends in themselves.

The authors don't have a name for this vision of governance. Sometimes they call it "unity," in contrast to "depth." But in the book, the term "unity" is often imbued with a pejorative cast. I will therefore use Unity with a capital U in what follows.

In short, we have four positions: two phantoms and two realistic candidates for governing philosophy, with both of the latter two being heirs of Progressivism. The phantoms are The Deep State and the Unitary Executive. The candidates are Depth and Unity. The American government features elements of both. Look for either one, and you will find plenty of examples.

Left open by the book is whether these two contrasting visions of government, Depth and Unity, both created and both let loose by the Progressive Era, can manage to co-exist in a beneficial dialectic. The authors are skeptical. They lean heavily on the side of Depth, fearing that Unity has gotten too much of an upper hand in recent years as the presidency has become more powerful and populist, and Congress more paralyzed by polarization.

Much of the book reports on the antics of Donald Trump, and his mangling of governmental norms and institutions. In this respect the book uses Trump as a brief against the Unitary Executive. And a very powerful brief it is, too. But Trump is no longer in office. And if we look past Trump, we will discover that the authors are ambivalent about Unity in general because they see its dangers in the hands of both Republican and Democratic Presidents.

Republicans, especially after Ronald Reagan, have liked Unity because it helps them get their arms around the administrative state and slow it down. They want to apply the breaks to a vehicle that they fear is careening out of control. Because of their anti-government ideology, Republicans often have a problem with using government to enact policy, and sometimes they are basically at war with the policy state.

Because of their attraction to originalism, Republicans have adopted the mantra of the Unitary Executive, which, like much of originalism, is more of an invented tradition than a faithful adherence to the letter and spirit of the Founders. The Unitary Executive is a twentieth century invention gussied up in an eighteenth century powdered wig. It is both a conservative response to the Progressive Presidency and a conservative version of the Progressive Presidency. It is the Progressive Presidency viewed through a funhouse mirror.

Democratic presidents like Unity for the opposite reason. They like it because they are committed to the articulation of policy and "the social revolution." (p. 35) Unity helps them get where they want to go with the least amount of interference. Democrats like expertise and deliberation just fine, but they like the versions of expertise and deliberation that produce heaps and heaps of policy in the process, and the sooner the better.

Unlike Republicans, Democrats have tended not to use the language of the Unitary Executive, first, because they tend to be allergic to originalism, and second, because for Democrats, Unity is not an end in itself. It is only a means to a larger end: the promotion of good policy and the remaking of society.

This helps us understand why the authors might be ambivalent about Unity, even in the hands of liberal Democratic Presidents. It is because the authors (or at least one of them, Skowronek) are  ambivalent about the Policy State. The Policy State views government's central purpose as the creation and promulgation of policy. It treats an increasing number of issues of governance as nothing more than questions of policy. And it maintains that, in the quest of realizing these goals, politicians should eliminate any unnecessary frictions and hindrances to the realization and implementation of policy. 

Unity is a powerful vehicle for realizing the Policy State, especially by Democrats, who, as much as they worship expertise, just want to get the job done. If you think that the Policy State has dangerous tendencies for constitutional democracy, Democrats are to be feared as much as Republicans.

But this leaves us with a pressing question. If neither Democrats nor Republicans are to be trusted with the Presidency, Republicans because they will wreck the republic, and Democrats because they will turn government into vehicle for all-policy-all-the-time-and-devil-take-the-hindmost, who can occupy it safely? Donald Trump is the major character in Phantoms, a gangster president with little in way of coherent ideology and even less concern for the public good. But in another sense, Trump is too easy a target. The book's deeper worries are not about Trump. They are also about Joe Biden and the presidents who follow him.

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