Wednesday, July 07, 2021

The Unitary Executive and the Deep State: Insights into Constitutional Change

Stephen Griffin

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).

The publication of Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive, a joint effort of Stephen Skowronek, John A. Dearborn, and Desmond King, is welcome and timely.  I find their penetrating argument exemplary on many levels.  But will lawyers and legal scholars heed their analysis?

The inspiration for the book is that the Trump administration exhibited a problem that has been festering for decades with the confines of American constitutionalism – between the “unitary” claims of the presidency versus the claims of administrators and, ultimately, of Congress, to lawful control of the many departments and agencies of the executive branch.  As the authors say, “Trump raised the stakes of the lawyer’s brief for a unitary executive.  What was once a talking point for advocates of presidential power was put on full view.”  Still, they treat the unitary executive and the deep state as “phantoms.”  They are ideas about how to conduct constitutional government, not reliable descriptions of the reality of governance.  The purpose of the book is not to endorse either perspective but to understand what the unceasing conflict between them tells us about the recent past of American government and provide insight as to its future.

The authors develop the concept of the deep state by stressing that it usefully highlights aspects of governance elided by the standard debate over whether the U.S. has a “weak” or “strong” state.  Regardless of the outcome of that debate, which is probably somewhat stale, they point out that common observation, as well as their specific review of events during the Trump administration, should remind us that the American state is highly articulated, with infrastructural capacities and relationships that extend well beyond the supposed hierarchy of the executive branch to Congress, the courts, and the citizenry as a whole.

As to the elaborate arguments developed by legal scholars for the theory of the unitary executive, the authors make a number of precise observations.  Not the least of these is that it is demonstrable that advocacy of the unitary executive, foreign policy (which they do not discuss in a substantial way) perhaps aside, is not a partisan issue.  Presidents of both parties have tried in various ways to deal with what they see as a recalcitrant administrative state.

The authors’ deeper objections to the unitary executive rest on what I have called the problem of constitutional change – namely, the difficulty posed for constitutional analysis of trying to keep in view what the Constitution mandates amid changes over the centuries to law, politics, and society (like political parties), that the framers actually opposed or never faced.  In criticizing the theory of the unitary executive, the authors make what should be a commonsense observation among more legal scholars in stating that the framers probably believed “they could have it both ways” with respect to the choice between vesting hierarchical control of the executive branch in one person or the path of lawful administration “faithfully executed” through cooperation among the branches.

In confronting the theory directly, they raise a “red flag” that deserves wider notice, both for its specific argument and methodological implications.  They observe correctly that the theory “joins an originalist argument for an expansive reading of the vesting clause to selection procedures that have been radically altered in the course of time.”  Some of the alterations they have in mind are in the Constitution itself.  But many are not.  They are deviations from the plan of at least some framers that many presidential elections would wind up being brokered, as the authors note, in the House of Representatives.  This means that acting on the theory in today’s changed legal environment is likely to produce not a straightforward implementation of presidential wishes but rather legal and administrative chaos.  Which is exactly what happened not once but several times in the Trump administration.  As they further observe, if one were trying “to recapture the wisdom of the framers” the institutional foundations of the presidency would have to be reconsidered in order to establish an office that “is radically depoliticized and resistant to any hint of insurgency, all partiality filtered out through selection mechanisms that elicit a diffuse sense of the interests of the nation at large.”  Whatever the merits of going back to the eighteenth century, this is not the presidency we have today.  Alternatively, if we wish to live with a plebiscitary presidency, we need a way to promote “mutual trust and institutional cooperation.”  The Trump administration offered no way forward on that score.

When President Trump took office, many observers thought the demands of the unitary executive and of lawful administration, especially with respect to the DOJ and expert agencies based in science, such as the CDC, could be held in equipoise.  The sphere of lawful administration was said to have norms and custom on its side.  I was considerably more skeptical, based on my review of the evolution of presidential war powers post-World War II.  The exercise of war powers by postwar presidents showed that “norms,” even those based in the textual powers of Congress, are altered or dissolved when confronted by determined presidents vested with the constitutional powers of office.  Certainly no one in the executive branch can compete with the constitutional warrants held by the President and his close White House advisers.  Indeed, some of the most controversial operations of the postwar period, including Watergate and Iran-contra, were run out of the White House itself.

The case studies the authors provide in Part II show in detail how this logic worked across multiple areas of policy.  In fact, it shows the logic of the unitary executive was expressed so well by Trump that, particularly with respect to control of criminal prosecutions, advocates of the unitary executive from AG Bill Barr to Professor John Yoo backed away from the theory’s full implications.  What the Trump administration’s record shows with great clarity, particularly with respect to the DOJ and the handling of the Covid pandemic, is that no one with policy responsibility and experience is actually interested in running the executive branch according to the dictates of unitary executive theory.  It is simply too dangerous.

Consider an additional example.  Another book I am reading now is Empire of Pain, Patrick Radden Keefe’s account of the Sackler family’s role in causing the Oxycontin and opioid crisis.  A crucial point in the narrative concerns the potential impact a federal criminal lawsuit brought by U.S. Attorney John Brownlee in the Western District of Virginia could have had on the Sacklers and the course of the epidemic of addiction they unleashed.  Initially, with James Comey (unitary executive nonbeliever) as Deputy Attorney General, the lawsuit progressed.  The cogency of the lawsuit was then reviewed by professional staff at the DOJ and again cleared to go forward.  Eventually, however, the Sacklers exerted enough pressure such that political appointees at the top of the DOJ not only quashed the lawsuit, but put Brownlee on the famous Bush list of disloyal district attorneys to be fired.  All because he had run afoul of a very wealthy family with good legal and political connections.  That’s the way justice works when the unitary executive is in charge.  Because the prosecution did not go forward as originally planned, the Sacklers and their company, Purdue Pharma, were free to continue selling Oxycontin for years to come, with devastating consequences for the nation.  And believe it or not, toward the end of the narrative, something similar to the Bush administration's punt happens again in the closing months of the Trump administration!

How did we reach this pass?  The authors identify the 1970s as the decade when the former cycles of reform and accommodation between the branches broke down.  Instead, both branches doubled down and staked out increasingly extreme claims, of which the unitary executive was one.  Here I believe the authors are overlooking another explanation which relates to the disjunction between the kind of state allowed by the Constitution and the sort of state necessary to survive the twentieth century.  It is possible that the Great Depression, world wars, and the post-World War II period in particular posed such unique challenges for the American state that former experience was no longer relevant.  The state was being asked to perform tasks that it had never done before, for which it had no clear constitutional warrant, at least based in any formal process of constitutional change, and for which it was concededly ill-suited.  We are still living with the consequences today.  Here I’m referring not so much to the reality of polarized politics but to a state structure (illustrated, for example, just recently by the disaggregated way we run national elections) that is inadequate to the challenges it is given.  As we consider what to do amid opposed constitutional and political ideologies that fundamentally threaten our democracy we also need to attend to the ongoing crisis of state structure rooted in a failed process of constitutional change.



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