Textualism and its Discontents

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).

Victoria F. Nourse 

Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive by Stephen Skowronek, John A Dearborn, and Desmond King (SDK) is a must read for all those who study presidential power and the Administrative State.  Skowronek has consistently enlightened the legal academy about the deep political roots of the unitary executive and this book is no exception by its eloquent and ingenious linkage of the “deep state” and the unitary executive as “twin phantoms.” 

I write for an audience of law professors to rebut a misreading common when lawyers read the work of political scientists:  the idea that law has nothing to do with our political dilemmas.  To be sure, law cannot make Presidents good, but law can legitimate bad Presidents (just take a look at the legal filings in the Trump era in Congress and in court repeated in press coverage), and it can keep a bad President’s political ideas alive, as I hope to show here, creating a self-generating and reinforcing loop between law and politics. 

So, let’s begin with a different history than that offered in the book, a legal history.  As the authors know, Donald Trump did not invent the legal theory of the unitary executive.  Lawyers who had worked in the Reagan Justice Department, typically former clerks of Justice Scalia, invented its legal foundations.   Decades later, George W. Bush famously used it to support his claims for torture.  Another decade after that, Donald Trump announced:  “It’s a thing called Article II . . . . It gives me all of these rights at a level that nobody has ever seen.”  SDK at 25 (quoting Trump). 

In my view, the authors misunderstand the constitutional theory that gave us the unitary executive. The theory goes by the notoriously slippery name “originalism,” and purports to be about the Framers, but it really amounts to something different.  First, contrary to its title, originalism as practiced on the Supreme Court is not about history, it’s about word meanings--semantics--and in this sense is anti-historical.  This explains why historians make little headway with originalists.  (If you disbelieve this, read the work of my former colleague and originalist theoretician Professor Larry Solum).  Second, the problem with the semantic theory, aside from the fact it hyper-focusses on tiny bits of language (see the Supreme Court’s focus this Term on “a” and “so”) is that the method allows the interpreter to resist the calls of ordinary legal reason:  it assumes that text can override past and future experience. 

Trump’s lawyers revealed what I call the “authoritarian strain” to textual originalism.  The authoritarian strain depends upon the idea that text controls, it trumps [pun intended] whatever else the interpreter may consider (precedent, consequences etc.).   The textualist judge simply says “the text made me do it.”  (See Justice Gorsuch’s opinion in Niz-Chavez this Term on the meaning of “a”).  The text commands the judge to decide X, whatever the consequences and legal precedent.  This upends traditional common law constitutional modalities.  In my view, the traditional constitutional modalities are gussied up in legal lingo, but they describe “ordinary reason.”  When ordinary people decide on a course of action, they think back to what they have done before (past precedent) and what consequences their action will have (future precedent).   Even Members of Congress use the constitutional modalities, see my forthcoming book on The Impeachments of Donald Trump, West 2021).  But constitutional textualists refuse to look at consequences and claim that text trumps precedent (see District of Columbia v. Heller).  To sum it up:  exclusionary textualism is at war with reason and experience.  (Which explains the current fracturing on the Court over textualism, and why there are so many faint-hearted originalists, doing what their theory tells them not to do.) 

The authors write that the textual arguments are evenly balanced on the question of a unitary executive (SDK at 33), but they are not, they are gerrymandered.  The interpreter focuses on Article II’s vesting clause, completely disregarding Article I, and Congress’s powers to create the executive branch (for a textual response, see my colleague John Mikhail’s work and my own).  This decontextualization of the President, the very act of interpretation--pulling a small part of Article II out of the Constitution entire--creates the legal idea of the unitary executive.  Once the President is isolated in the interpretive imagination, one no longer sees anything else, including Article I and Congress. Experience, and Skowronek’s own work, should tell us this gerrymandered view must be false. There would be no Administrative State without Congress, no departments, no bureaus, no civil service. The President would be literally alone, with no one to assist him, as members of the First Congress knew quite well.   The unitary executive is thus an excellent example of what we see with textualism more generally, which is that it gerrymanders constitutional text.  (See Eskridge & Nourse, forthcoming NYU). 

Unfortunately, too many have accommodated the interpretive approach generating the unitary executive.  A la Justice Kagan, they believe that “we are all textualists and originalists now.”  History and life tell us that things banal and true at one level can turn dictatorial and dangerous when transplanted to another (think:  genetics transformed to eugenics).   The key to the danger lies in what the textualist excludes, not recourse to text itself.  And that helps to explain why the unitary executive as a legal phenomenon did not die in the George W. Bush Administration, as many liberal law professors believed.  It came right back to legal life in the Trump administration because textualist and originalist lawyers believed its method was undeniable.  We should have been able to predict this resurgence not simply because presidents have an incentive to aggrandize their power:  the theory of constitutional interpretation undergirding the unitary executive is theoretically impervious to experience.  Exclusionary textualism seeks to triumph over past precedent and future consequences.  No matter that in the Steel Seizure case, in 1952, Justice Jackson warned that the vesting clause theory was “totalitarian,” no matter that Trump demonstrated the dangers of “I have Article II” on a daily basis.  Article II’s vesting clause and three little words “the executive power” makes it so. 

Followers of the “text-made-me-do-it” constitutional theory do not believe that they are authoritarians, they believe that they are patriots, just following the Founders, in the name of “ordinary” people.   Anya Bernstein and Glen Staszewski call it “judicial populism,” in their forthcoming piece (Minn. L. Rev.)  Eskridge & Nourse (NYU above) agree that the move to the “ordinary” reader is populist in impulse:   the interpreter who believes she is commanded by the text is commanded by a text the interpreter too often invents in the image of the “people.”   The unitary executive is justified by greater “accountability” to a phantom people, even though it seems entirely doubtful that the people have any clue about this doctrine other than it helped justify torture. Populists around the world claim power on behalf of the people, but it is too often an “imaginary” people made in the image of an authoritarian leader. 

When I agreed to do this review, I considered the fact that the Supreme Court would, despite the violent Trumpian aggrandizement of presidential power, come out with decisions in June that would, like whack-a-mole, resurrect some of the basic ideas of unitary executive legal theory.  And, that’s precisely what has happened:  Unlike Justice Scalia who famously misquoted the Constitution to say that the president has “all” executive power, the Court now says the President is “alone” the leader of the people.   Again, the word “alone” is not in the text, although some Justices still coin it (see Gorsuch, J. concurring in Arthrex).  In Arthrex and Collins v. Yellen, the Court granted more constitutional power to the President.  The Justices believe that the text commands it to restructure agencies in the Administrative State. Displaying the populist’s Manichean tendency, and misquoting the Federalist Papers, exclusionary textualists believe that the President is good and the Congress bad.  No amount of history, nor a political explanation of the origins of the legal theory, is likely to change those views, because they are grounded in a deeper methodological commitment.  For the current Court, Article II’s vesting clause makes it so. 

The premise of the new Skowronek book is elegant and true as a description of political dilemmas facing the Administrative State.   But the description does not lead to any confident predictions other than that Presidents will find the unitary executive helpful.  For what it is worth, my prediction is that Joe Biden’s Justice Department will not embrace the unitary executive, even as he struggles to control the Administrative State and even though he has an incentive to deploy as much power as possible. Why?  First, he once fought a highly public battle against originalism, and won (the Bork nomination).  Second, he ran for President precisely because he saw the Trumpian threat and aims to rebrand “depth” as “public service.”  Third, he respects the power of Congress; the Senate was his life.  Of all Presidents, he is likely to appreciate that the real political target of the unitary executive is at least as much the defanging of Congress as it is the empowering of Presidents. 

Victoria F. Nourse is Whitworth Professor of Law at Georgetown Law Center. You can reach her by e-mail at Victoria.Nourse at law.georgetown.edu.