By WILLIAM HOWELL
Review of Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive, by Stephen Skowronek, John A. Dearborn, and Desmond King
New York, NY: Oxford University Press, 2021
In this troubled, polarized time, when so much of our government appears off kilter and so many politicians work at cross purposes, what powers rightfully belong to the president? What authority can a president claim all to himself?
The Unitary Executive Theory offers an emphatic answer that comes in three parts. First, it beckons us back to the Constitution. In this hour of uncertainty, the theory insists, we must look to the founders for guidance. When we do so, we will discover that they vested the “executive power” exclusively in the president—which is the second pillar in the Unitary Executive Theory’s argument. The power to execute the law does not reside with a professional civil service, with independent agencies, bureaus, or departments, or with either of the adjoining branches of government that try to put the federal bureaucracy to their own purposes. Rather, the executive power resides with the president. And with the president alone. Full stop.
The first and second pillars firmly in place, the third rather quickly comes into view: all of those who execute the law proceed at the pleasure of the president; those within the executive branch who invite the president’s displeasure can be dismissed; and anything that impedes the president’s control over the administrative state does so without constitutional warrant.
With needle-nose pliers, champions of the Unitary Executive Theory extract the vesting clause from all the Constitution’s ambiguities, hedges, and provisional assignments of authority, and they use it to justify extraordinary claims for presidential power. Presidents, they insist, must be permitted to execute the law as they so choose. Independent agencies, limits on the president’s removal powers, onerous and interfering demands for transparency and oversight, inspectors general, independent counsels, and any other administrative obstruction or annoyance stand in clear violation of Article II and therefore ought to be removed from the political landscape.
In its construction, the Unitary Executive Theory is artfully deceiving. It starts specific but ranges widely. It packages extremism in sober textual interpretation. It insists that a plain reading of the Constitution justifies the rollback and redefinition of the administrative state. More than that, the Unitary Executive Theory brings a wrecking ball to administrative independence and expertise. It does so, though, under the quiet pretense of realigning present institutions with the Constitution.
The Unitary Executive Theory first came into vogue in the Reagan Administration, when a group of lawyers in the Justice Department sought to clear the way for a president who looked skeptically upon a sprawling administrative state. And ever since, nearly all mainstream constitutional law scholars have responded with a mix of leeriness and objection. By refusing to acknowledge the many grants of authority outside of the vesting and take care clauses, by treating bureaucrats as mere subordinates of the president, and by failing to recognize the simple fact that power in our system of government is always contested, no matter its contents or form, the Unitary Executive Theory misinterprets our Constitution and advances claims that are at once ill-conceived and dangerous.
Still, the Unitary Executive Theory continues to hold sway among certain conservative academics, conservative federal judges and Justices, past Republican stalwarts at the Office of Legal Counsel and Justice Department, and, not least, past Republican presidents. The theory is no idle curiosity. It establishes the intellectual foundation for conservatives to bend the administrative state to the president’s will, at least when one of their own is in power, and to dispense with anyone and anything that offers resistance.
This is where the newly published Phantoms of a Beleaguered Republic picks up the story. In this short, beautifully crafted, probing book, Stephen Skowronek, John Dearborn, and Desmond King bypass the crowded waters of constitutional interpretation and wade, instead, into those of political conflict and institutional design. So doing, they expose how the Unitary Executive Theory has burrowed into the administrative state and refashioned the terms of bureaucratic politics and contestation.
To appreciate the full force and meaning of the Unitary Executive Theory, one must take stock of its target: a burgeoning, hierarchical, rule-based, electorally unaccountable, and politically insulated administrative state. For years, conservatives have disparaged this “Deep State” for looking disinterestedly upon the American public, subverting national interests, and resisting the orders of democratically elected presidents. These authors do not come to its defense. Rather, they concede the point. The administrative state is deep, they say. More than that, “depth” is the defining feature of the modern bureaucracy. The point of this book, then, is to investigate what happens when the two “phantoms” of unitary control and the Deep State run headlong into one another.
For a good long time, politicians and political reformers sought an accommodation between the two. The creation of the Executive Office of the President, the granting of reorganization authority, and efforts to encourage collaboration and communication between the first two branches of government all were intended to satisfy both phantoms—to give the president some measure of control over the administrative state while also supporting those who spent their entire lives working within it. That accommodation, though, no longer seems possible. Advocates of the Unitary Executive Theory have marshaled their complaints and frustrations into a powerful political assault, while supporters of an entrenched bureaucracy deploy their legal, reputational, and political defenses. “Phantom twins,” the authors write, “they draw each other out” (9).
These two phantoms are featured prominently in the most significant political contestations of the Trump presidency, and the bulk of this book is devoted to their retelling. Individual chapters cover Trump’s efforts to reorder and remove administrative staff, his attacks on democratic norms, his denigration of bureaucratic expertise, his reliance on acting appointees, and his steadfast opposition to congressional oversight. Over and over, defenders of the president malign unelected bureaucrats who thumb their noses at the American public while refusing to accept that elections have consequences; and in response, defenders of the administrative state decry a volatile, despotic president set upon undermining the capacity of the government to perform its most essential functions.
Though they cover familiar territory, these middle chapters are the most gripping of the bunch. From on high, we see how Trump and his supporters undermined the work of agencies with which they disagreed (notably the Consumer Finance Protection Bureau and Environmental Protection Agency), favored loyalists over honest brokers, locked arms in formation around the president throughout his first impeachment, and then, in its aftermath, fired the underlings who had cooperated with Congress. In some instances, the president’s defenders explicitly invoked the Unitary Executive Theory. In others, they borrowed its arguments and language. Most of the time, though, they behaved in ways that merely presupposed its binding significance.
From down below, members of the Deep State had agency of their own, and they used it on both defense and offense. When Trump launched his assaults on the federal bureaucracy, its guardians hunkered down. They quietly scuttled the president’s orders, tabled his requests, and limited his policy options. When Trump appeared vulnerable, bureaucrats lodged formal complaints against him, leaked embarrassing information, and sidestepped established procedures to empower his opponents. For these members of the Deep State, there was no neatly compiled theory to justify their actions. In its place, instead, they drew from a grab bag of high-minded values—science, expertise, neutrality, rationality, independence—even when their behavior looked like stubborn opposition.
In this saga, heated to a slow boil, the authors warn against picking sides. Rather, they insist, “the point to ponder is that at every site of resistance the protest was the same. It turned on the value of depth, on the wisdom of stripping administration of its own integrity and operating the executive branch as a strong arm of presidential will” (195). What is needed, now, is not for one side to vanquish the other and for us all to settle into a world of either the Unitary Executive Theory’s or the Deep State’s making. Rather, what is needed is a new accommodation between the two. Some kind of “political reorientation” or “profound rearrangement” must occur, the authors argue, lest the fallout of these clashes weigh ever more heavily on our beleaguered Republic (204, 203).
What does such a “political reorientation” look like? The authors don’t say. It requires moving beyond the tired and depleting attempts to channel the nation’s founders in the service of constitutional preservation. The authors are clear about that. And they gesture toward “party building” and “administration” as the “appropriate sites for the restoration of cooperation” (203). But they don’t put anything solid on the table for consideration—any collection of reforms or commitments that might ease present tensions and put our nation on a more productive pathway forward.
The point of this book, instead, is to diagnose present conditions and offer a recounting for how they arose. And on this latter score, the authors argue that they are decades in the making. The present showdown between the Unitary Executive Theory and the Deep State represents a “coming of age,” the authors argue, as the logic of each ultimately proved incompatible with the other. This present reckoning was bound to happen. It was just a matter of time.
I take a different view. There certainly are lots of historical antecedents to Trump’s assaults on the administrative state. These twin phantoms—if we must call them that, as neither has agency of its own, neither roams about on its own volition, and neither is illusory—have made plenty of past appearances. But their enduring significance is tied to other, more familiar political factors. And the authors’ depiction of politics, ultimately, misconstrues why Trump spent the better part of four years laying waste to the administrative state—and why so many others abetted and applauded his efforts to do so.
For starters, it bears noting that the Unitary Executive Theory is nearly always invoked by Republicans in defense of Republican policy commitments. Sure, Democratic presidents have an interest in controlling the bureaucracy, and the authors do a nice job of highlighting their efforts to overcome administrative recalcitrance. But the stronger claims for unitary control were manufactured by Republicans for Republicans. And this should not surprise us. Republicans, after all, want to limit the reach of government, to constrain its ability to advance public purposes. When they look out upon the federal bureaucracy, they see agencies and departments populated with political enemies. It is no accident that Republicans, far more than Democrats, retain a deep and abiding skepticism of the administrative state. For Republicans, the Unitary Executive Theory sanctifies their ideological interests in rolling back the state. The political relevance of this first phantom does not derive from its abstract rhetorical appeal. It comes from lending cover to the one party’s ambushes against political opponents.
Nearly always, the sites of contestation are agencies committed to decidedly liberal missions: the protection of consumer rights, the regulation of business, the provision of health care, the defense of the environment. Sure, dustups are recorded all across the administrative state. But the most dramatic showdowns occur when Republican presidents look upon agencies created by past Democratic coalitions. These contestations are not just about unitary control and depth. They are about lasting disagreements between conservatives and liberals about the appropriate boundaries of government and the purposes of the state. They are infused with ideological and partisan politics.
Then there is the particular role that presidents play in this drama. For the authors of this book, presidents have little interest in building a modern administrative state. What they want is control, pure and simple, and they are perfectly willing to sacrifice neutrality and expertise if, in the end, it buys them mastery over the execution of law. In its telling of the recent history of executive politics, then, Phantoms has nothing to say about the efforts of presidents to invest in the bureaucracy, to rationalize its operations, to build a better, more effective administrative state. There is no mention of the Clinton Administration’s launch of the National Performance Review, which focused on the internal operations of individual agencies with an eye toward eliminating waste, improving operations, and rationalizing the federal government. Nor is there any mention of George W. Bush’s or Barack Obama’s efforts to track and enhance the effectiveness of agencies and departments. Investments in bureaucratic capacity don’t enter into the history that the authors tell. And as a result, Trump’s assault on the administrative state would appear to implicate all presidents.
But of course, it does not—at least not in the ways that the authors suggest. Certainly, all else equal, presidents want more control over the administrative state. But sitting atop the administrative state, responsible for the performance of the government as a whole, and concerned about their historical legacies, presidents—at least all presidents before Trump—also want a bureaucracy that performs well. They want loyalty and expertise, responsiveness and competence. The trouble is, as a massive literature in political economy demonstrates, presidents can’t capture all that both have to offer. One unavoidably cuts against the other. And so, as an accompanying empirical literature on the bureaucracy documents, presidents routinely weigh the tradeoffs involved. Their willingness to privilege either responsiveness or competence depends upon the complexity of the issue area, the ideological make-up of the agency, the president’s policy agenda, and a host of other contextual factors.
Why does Trump look so different from past presidents? Why did he choose loyalty at every turn and care not a lick for the integrity of the administrative state? The answer is not that past accommodations between presidential control and administrative depth had broken down, or that the champions of the Unitary Executive Theory finally convinced a president that its reading of Article II was the best available. Rather, the answer is that Trump is a populist and that these are populist times. Populism’s storming of the White House, not the coming of age of a once-fringe school of constitutional interpretation, is the lede here. But it’s a lede that is not so much as mentioned in the entirety of this book.
Trump’s assault on the administrative state was part of a larger assault on democracy. And by exaggerating the significance of the Unitary Executive Theory to Trump’s political designs, this book conceals the lies, bigotry, conspiracy theories, personal attacks, threats, grievances, and demagoguery that coursed through his presidency and were central to his appeal. Trump was perfectly willing to reference the Unitary Executive Theory insofar as it suited his purposes. What propelled him, though, were abiding beliefs that our government was broken, rigged, and indifferent to the plight of honest (read: white, Christian, conservative) Americans; and that he, as president, would finally deliver for the American people that which the Deep State, so-called experts, and a corrupt D.C. establishment had denied them. Trump cared hardly at all about matters of constitutional interpretation. His were a politics of personal power.
Such is the essence of populism. It presents an outsider as the representative of a true and forgotten people, a savior from an irredeemably broken political system. The administrative state, sure, but also Congress, the courts, the two major parties, and the media all are singled out for abasement. The outsider, through his own autocratic power, promises to deliver that which a system cannot. And it is through the personal power of this outsider, and not the establishment of new institutions that are more responsive to a unitary executive, that progress is to be made. Look to me, Trump beckoned, for I alone can fix it.
Populism presents a profound threat to the effectiveness of government and the well-being of democracy. The choice is not between depth and unitary control. The choice is between a responsive democracy that is capable of meeting the needs of a people and a governing regime whose primary function is to enhance the power of a populist leader. And in these politics, one must take sides.
Posted on 15 March 2021
WILLIAM HOWELL is the Sydney Stein Professor in American Politics at the University of Chicago, where he holds appointments in the Harris School of Public Policy, the Department of Political Science, and the College. Currently, he is the chair of the Department of Political Science and the director of the Center for Effective Government. His most recent book is Presidents, Populism, and the Crisis of Democracy (University of Chicago Press, 2020), which he coauthored with Terry Moe.
