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).
Blake Emerson
Phantoms of a Beleaguered Republic offers a penetrating diagnosis not only of the Trump presidency but of long running trends in American political development and public law. Stephen Skowronek, John A. Dearborn, and Desmond King argue that the “unitary executive theory” and the bureaucratic “deep state” are bound together as two antagonistic, pathological extremes in American political thought and practice. The investigations and impeachments of Trump and the bungled response to Covid-19 are not anomalous. Rather they are symptomatic of an unresolved and destructive conflict between plebiscitary presidential power and the durable norms of the administrative state.
I highly recommend the book to legal academics for its
insights in placing recent crises in the context of “deep” problems of the
American constitutional order and state structure. The authors build on the
work of public law scholars like Jon
D. Michaels, Anne
Joseph O’Connell, Daphna
Renan, and Jed
H. Shugerman, and me
to disentangle the hierarchical mechanisms that implement presidential will
from the crisscrossing, horizontal lines of communication that tie the
bureaucracy to Congress and to civil society, and that give the administrative
state some independent standing of its own. Phantoms
argues that these two dimension of the executive have come apart and entered
into open conflict as the scope of state intervention has widened, ideological
conflict has deepened, and the party system has become centered around
presidential candidates. The problem, then, is neither the deep state nor the
unitary executive standing alone but rather their mutually-destructive combat.
I want to argue that, despite the author’s protestations, their argument is one that cuts fairly strongly against the unitary executive and in favor of the republican virtues of a bureaucratic officialdom working in partnership with Congress and the public at large. The problem, then, is not the antagonism between the personal presidency and the institutional executive. The problem is the constitutional structure, Supreme Court jurisprudence, and political ideology that favors hierarchy, subordination, and unilateral discretion within the executive. The anti-republican relations and mentalities that constitute the unitary executive improperly and dangerously aggrandized the president’s place in American democracy.
To clarify what I take to be the authors’ position,
it’s worth distinguishing the polemical allegation of the “deep state” from
what they call “depth.” The “deep state” is an epithet for unaccountable,
unelected bureaucrats who thwart the will of the elected president. The charge
of deep state sabotage was frequently leveled by Trump and his allies. “Depth,”
by contrast, describes a number of essential structural characteristics of the
modern American state: its reliance on scientific knowledge and professional
norms, its penetration into economy and society, its networks and connections
with constituencies outside the government, its partial insulation from partisan-political
control, and its complex system of internal checks and external monitors.
The unitary executive arose from the ashes of the
Nixon presidency as an assault on such depth. It was a reactionary effort reassert
the president’s command over law administration in the face of an expansive
regulatory state and a Congress keen on executive oversight. The late Justice
Scalia’s landmark dissent in Morrison v.
Olson made the case for the unitary executive forcefully, rejecting
statutory provisions that deprived the president of full control over
prosecutorial and other executive functions. The Constitution’s article II vesting
clause, he argued, gave the president not “some
of the executive power, but all of
the executive power.” Scalia’s dissent
showcased and encouraged a dangerous political psychology, in which officials
at the very heights of governmental envision themselves besieged by hostile
forces, and, in response, demand yet more discretionary power.
More recent opinions such as Free Enterprise Fund v. PCAOB, Seila
Law v. CFPB and, just this term, Collins v. Yellen have given the
unitary theory the force of law. These rulings have begun to pick apart the rules
and structures that separate the administration of federal law from the
president’s will. The Court is poised to achieve what Steve Bannon promised
Trump would: the “deconstruction of the administrative state.” The Court might
proceed to invalidate protections not only for a scattershot of anomalous
agencies but perhaps also for administrative law judges, other inferior
officers, and the civil service as a whole.
If the current line of precedent runs its course, we
may end up in a situation where the president really does have the massive
resources of the federal bureaucracy as an instrument of personal will. The
threat here is not merely the specific changes in legal rules, which would
increase the president’s freedom of action and limit the role for impartiality,
professional competence, and deliberative-democratic engagement. The larger
problem is the political and legal ideology of hierarchical power, amplified
rather than constrained by bureaucratic administration, and supposedly legitimated
by plebiscitary will and charismatic authority. That is a recipe for the
destruction of not only the administrative but also the democratic and
constitutional state. Carl Schmitt would look on all this with admiration.
One of Phantoms’
important contributions is to underscore that the purported originalist
foundations for this kind of plebiscitary executive democracy are unsound. In Seila Law, Chief Justice Roberts stated
that “the Framers made the President the most democratic and politically
accountable official in Government.” Phantoms
shows that the Framers did not conceive of the presidency in these terms. Quite
the contrary, the original selection procedure sought to ensure that the
president was insulated from electoral
politics. The notion of the president as direct popular representative came
later, first with Jackson and then with the Wilson, Teddy Roosevelt, and the
Progressives. Both the Jacksonian democrats and the Progressives mediated
presidential power through counterpart institutions, the first by way of a
locally-anchored party system, the second by way of the professional norms and
expert knowledge of the civil service. Today’s unitary theory is distinctive
because the presidency is unmoored from such extra-constitutional controls. Unitarians
understand the president’s relationship to the people to be immediate, with
both the party and the executive establishment acting not as constraints on but
rather as conduits for the president’s interests, preferences, and personality.
In the haze of originalist rhetoric, the major changes in institutional
structure that have given the presidency a democratic gloss have been folded
back into a fiction of the Framers’ intent. Shorn of that ventriloquism, what’s
really in the offing is a novel constitutional theory that centers the
president and the courts as constitutional guardians and marginalizes the
authority of Congress to structure federal offices and departments.
The analysis that Phantoms offers would seem to point quite strongly in one direction:
the virtues of depth. The authors describe the “alternative to the unitary theory”
as the “republican theory” (32). “A state organized along republican lines
would likely develop collaborative arrangements for administrative control. It
would rely on institutions that mediate what the Constitution separates and
invite crisscrossing channels of communication with administration among the
branches that are otherwise divided and juxtaposed” (33). These are precisely
the arrangements that constitute the depth of the administrative state. The
thrust of the argument, I would have thought, is that such depth is a logical
outgrowth of republican constitutionalism, whereas the unitary executive theory
is a Frankenstein’s monster, stitching dismembered fragments of constitutional text
together with populist authoritarianism.
But that is not the authors’ declared position. They
say that the deep state and the unitary executive are a “mutually constitutive
package” and that they “draw each other out” (9). In their summary of the
tumults of the Trump Administration, they conclude that “neither side comes off
particularly well. Instead of endorsing a side, we recommend paying closer
attention to a system now at odds with itself, a state out of kilter and no
longer certain of its own assumptions” (p. 11). It’s hard to disagree that the
state is out of kilter. But it’s not clear that depth is the problem. Many of
the failures of the bureaucracy the authors discuss involved pretensions to
personal power that were antithetical to executive-departmental norms. FBI Director Comey seemed to be a unitary
executive unto himself. He first departed from Justice Department policy when
he revealed investigations into Hillary Clinton shortly before the 2016
election. He then relished the opportunity to present himself before Congress
and in print as Trump’s constitutional nemesis. Likewise, when FBI agents investigating
Russian interference in the election sent text messages about how they’d “stop”
Trump from becoming president, that was not depth on display but hubris and
bravado. Consumer Financial Protection Bureau Deputy Director Leandra English’s
unsuccessful attempt to keep Trump’s appointee, Mick Mulvaney, from assuming
leadership of the Bureau read more as the dead hand of the Obama presidency
than as an assertion of professional competence. The authors suggest that these
figures were symptoms of the excesses of depth. But these officials weren’t steadfastly
adhering to legal requirements and departmental norms. They were out of their depth.
At the same time, it’s not quite right to say that
what we need is just “more depth” or that depth alone is consistent with
republicanism. Whether the departmental structure of the executive is genuinely
attuned to republican values of non-arbitrariness and non-domination depends
upon the norms that the bureaucracy embodies. The Mueller Report is an excellent
example about how depth can be out of place. Mueller was depth personified. He was the gray on gray of the rational
state. He had been steeped in Justice Department norms and regs for decades.
The problem was that the Justice Department itself—particularly the Office of
Legal Counsel (OLC)— developed rules, interpretations, and a culture of
reflexive defense and empowerment of the president. So when it came to the
question of whether Trump had obstructed justice, Mueller found himself twisted
in nots explaining that, because of a Nixon-Era OLC Memo reaffirmed at the end
of the Clinton Administration, he could not reach a traditional prosecutorial
judgment. Sometimes depth is just an echo chamber for presidentialism.
At the end of the day, the authors say, “it really
is all just a matter of norms” (p. 198). The viability of a government
constituted by durable democratic purposes rather than personal will depends on
the public’s capacity to reach some level of consensus or at least reasonable
disagreement over national policies and projects. The party system, they
suggest, has become far too candidate centered and has impeded a more diffuse
and deliberative process of political will-formation. Embracing recent work by Brian
J. Cook, they argue that the administrative state must be
placed on firmer footing, independent from the president’s control. Michaels
and I, in a different but related vein, have argued for
steps the Biden administration could take to distribute and diffuse power to
actors outside of the White House.
An additional lesson of the political whiplash of
the twenty-first century has been that statutory law nonetheless has staying
power. The Affordable Care Act is still with us, as is the Dodd-Frank Act,
despite significant judicial amendments and interventions. As Abbé Gluck and
Thomas Scott-Railton have shown, the programmatic success of the ACA has made
it not only hard to destroy but has shifted
public discourse towards more universal and solidaristic
understandings of health care rights.
Successful administrative implementation of
legislative policy, in other words, can help to shift and to generate shared
norms. As we confront pressing issues such as infrastructure, climate change,
immigration, and police violence, we need to think about how to enhance the
durability and salience of the public institutions that make up the executive
branch and are separate from the president’s will. People need to witness their
government acting as an expression of their collective interests rather than as
an instrument of a single representative’s personal prerogative. That means
rethinking the structure of government agencies and the way they engage members
of the public. Such bold, institutionally articulate public action faces
serious obstacles from the Senate and its filibuster rules, the Supreme Court’s
Article II adventurism, and the ongoing effort to undermine the right to vote.
Confronting those obstacles is necessary but not sufficient. We need to build a
new American state in which the people finds itself at home.
Blake Emerson is Assistant Professor at UCLA School of Law. You can reach him by e-mail at emerson at law.ucla.edu.