Monday, July 12, 2021

Don't Count the Constitution Out of the Deep State Battle Yet

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).

Paul Gowder

Skowronek, Deaborn and King carefully and insightfully describe the history and present of a conflict that can read, variously, either as between "good government," represented by administrative stability and expertise, and democratic legitimacy, represented by the plebiscitary presidency; or as a conflict within different conceptions of democratic accountability---with the administrative "deep state" standing in for Congressional authority to regulate the executive branch with laws and processes rather than by the will of the current occupant of the Oval Office. However imagined, one of the key claims of Phantoms of a Beleaguered Republic is that the conflict can't be resolved by the Constitution, either as it is or even under the shadow of potential amendment: the existing Constitution doesn't resolve the tensions between presidency and administration/Congress (and all prior working arrangements were thoroughly extraconstitutional if not downright unconstitutional); even the deepest reforms would still require political cooperation to operate them---and it's that cooperation which we lack and whose lack sparked the crisis of the Trump years.

Yet, as political scientists are wont to do, Skowronek, Deaborn and King underestimate, I think, the importance of law to the conflict, or at least to any acceptable resolution of it. To see why this is the case, we need to look underneath the "good governance" justification for administrative depth to the vulnerability of the real human beings who so often stand underneath the (literal) gun of the unitary administrative state.

As I have argued at length elsewhere, those individual interests have been largely neglected in the debate over administration, largely because all of the political wind in that debate's sails have been motivated by the desire of business to avoid economic regulation. (It's curious that this fact doesn't get a lot of emphasis in Phantoms, even though it was surely a key part of the basis for Republican support for Trump's attacks on the administrative state.) This is certainly true in the most significant recent court cases, which are entirely focused on commercial matters. Consider Lucia v. SEC, which briefly appears in chapter 8 of Phantoms---a case in which the Court held that the Appointments Clause applied to the hiring of Securities and Exchange Commission Administrative Law Judges. As I write these words, the Supreme Court has just doubled down on that holding in U.S. v. Arthrex, holding that because the decisions of patent adjudicators were not directly appealable to the head of the PTO, they were "principal officers" rather than "inferior officers," hence subject to Presidential appointment and Senate confirmation---and, in a part of the Chief Justice's opinion that didn't garner a majority, that the remedy is to carve out review authority for the PTO Director.

Both Lucia and Arthrex seem to stand for the proposition that the many-decades-long legal/political settlement in which most administrative law adjudications have at least formal independence protections from policy officials in the executive branch is constitutionally questionable at best, outright dead at worst. But if we limit our gaze to the legal and political contexts presented by those two cases---in which economic actors have piggybacked on the assault on depth du jour to resist administrative decisions that didn't go their way---we can easily miss the heart of the problem.

When we focus on such commercial disputes, in which individuals have relatively insignificant interests (at least compared to the interests that the polity as a whole has in getting economic policy right), it's easy to frame the debate as a pure question of policy authority: should we prefer the democratic responsiveness of presidents or the stability and expertise of bureaucrats? After all, neither in Lucia nor in Athrex were individuals subjected to extreme vulnerability---Arthrex was a patent dispute between companies, and while Lucia involved an individual, the individual in question was a likely-reasonably-well-off CEO and radio personality, not, for example, an immigrant subject to deportation or a prisoner in federal custody. And at least since the end of the Lochner era, we in the law have recognized that the federal government (whether in the guise of Presidents, Congress, or bureaucrats), has a relatively freer hand with economic regulation than with more substantial individual rights.

The vulnerable individual also vanishes in the main substantive area of Phantoms, namely, foreign policy. That domain largely seems to assume---and Skowronek, Deaborn and King don't challenge that assumption---that the interests of individuals with their individual rights, and hence with the legal claims on which those rights rest, are largely absent. Thus foreign policy both is most traditionally the province of executives and is governed by reasons of state rather than law. This is particularly salient when it comes to Ukraine. I strongly suspect that part of the story of the failure of the Trump impeachment is that it was hampered by being about manipulating foreign policy as opposed to domestic criminality, where there might actually be uncontroversial standards against which to judge his behavior---and it is striking that among the many ways that we might characterize Trump's Ukraine behavior, the characterization that might invoke something like real individual rights and accompanying legal standards, namely, the use of federal power to promote smear operation against an American citizen, Hunter Biden, was absent from the articles of impeachment.

I submit that focusing on economic regulation and foreign affairs risks unduly narrowing our vision, in particular to the debate between "good government" and democratic accountability. Instead, thinking about the vulnerability of individuals subjected to executive power can both cut through the simple binary opposition between "Deep State" and "Unitary Executive," and illustrate the role of law itself---understood as an opposing normative standard to both plebiscitary prerogative and the singleminded pursuit of optimized policy---in challenging the underlying political alignments around administration and constraining the possible solutions to the present conflict.

Thus, observe that there are two challenges to the administrative state on the political right: the unitary executive challenge described by Skowronek, Deaborn and King, and a libertarian challenge which worries less about democratic accountability and more about unrestrained power against individual freedoms. While libertarians and advocates of the unitary executive are currently more or less allied, most prominently in the form of the Federalist Society (and Trump's many Federalist Society judges), that alliance is somewhat uneasy, for the libertarian critique is suspicious both of depth and of untrammeled presidential power. Both pose the danger of amounting to insufficiently constrained authority over individuals---the former by technocrats, the latter by quasi-kings, as in Philip Hamburger's famous comparison of American administration to the prerogative courts of the Stuarts.

This critique does not only belong to libertarians, however---it sounds libertarian when it's applied to the EPA and SEC, but can be taken up by the left when applied to ICE and the DOJ. Hence, from the political standpoint, it offers the potential to unsettle the Federalist Society alliance.

Consider immigration as a key example. Much of the critique of how our government abuses immigrants is really a libertarian-style critique of administration, for it is in the bureaucracy that the worst cruelties and acts lawlessness are perpetrated---from the the kangaroo court administrative adjudications in which asylum claimants are barely given an opportunity to present their cases, to the black-hole detention sites, to the blatantly Kafkaesque manipulation of forms to trick immigrants into screwing up their claims. One way to think about constitutional law in its best form is that it is the place where law resists this kind of subordination of individual interests to the conception of the general good of those in power, whether the scientifically sound policy of enlightened administrators or the platform of a plebiscitary president. Constitutional law is the tool we have to stand athwart even a president and a bureaucracy aligned in policies like "have fewer immigrants" and shout "stop" and "not this way."

If we look to that face of the Constitution to answer the question of how much depth we ought to have, we do not worry so much about the perennial struggle over what "the executive power" is. Rather, we attend to ideas like the Due Process Clause and the judicial power. From this constitutional perspective, for example, we have strong reason to defend depth in administrative adjudication, insofar as it means protecting administrative judges from their bosses of all stripes---whether that be the policy sides of their own agencies or the President---in order to ensure that the interests of individuals aren't sacrificed in favor of the policy goals of either. (And that's why Lucia and Arthrex are unmitigated disasters.)

Further observe that such individual interests cut across the lines of the unitary executive versus deep state conflict around which Phantoms is oriented; they can appear on either side depending on whether the bureaucrats or the White House are more motivated to mow down individuals in the pursuit of policy or political goals. Thus, during the Trump years, the immigration enforcement agencies were wholly aligned with the President, but, as Skowronek, Deaborn and King describe in chapter 8, there was some small degree of administrative resistance to Trump's mode of implementing their shared immigration extremism, and so the unitary executive Phantom reared up to see the head of USCIS replaced with a Trump-aligned acting director. By contrast, during the Biden administration, it appears that the administrative alignments have shifted, and the depth Phantom is taking over the work, as, for example, we're presented with the abuse of union contracts to reinforce anti-immigrant depth against the reforming will of the President.

Finally, observe that immigrants, on whom I've focused in this brief discussion, are particularly insecure just because of the abandonment of law as a way to understand their mode of relating to the polity. Most infamously reflected in immigration law's "plenary power doctrine," the United States has largely characterized the treatment of immigrants as the subject of foreign policy rather than individual legal rights. This assignment of immigrants to the category "policy" rather than "law" has authorized both bureaucracies and individual presidents to do to immigrants whatever seems most expedient for some short-term political goal.

Skowronek, Deaborn and King are right to recognize that the only way forward for the conflicts around administration is a new political settlement---but that settlement must find a place for constitutional law, in the form of the recognition that individuals have rights too that may not be set aside whenever the policy incentives change. Their resistance to legal solutions to the problem of administrative/executive power in favor of political solutions itself buys into a non-obvious political position, one in which law is excluded just because the only recognized interests at stake revolve around various ways of getting the policy right.

Paul Gowder  is Professor of Law at Northwestern University. You can reach him by e-mail at paul-gowder at

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