The Imperial Presidency’s Enablers

In 1866, the U.S. Supreme Court handed down its landmark decision in Ex parte Milligan, which barred the federal government from trying civilians in ad hoc military tribunals when civilian courts were available. Writing for the majority, Justice David Davis spent several pages explaining the dangers of an unchecked executive. The United States, he said, “has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution.” Instead, “wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.” That is why the United States has a written constitution, he concluded, and independent judges to enforce it—even, as in the case of Milligan, against President Abraham Lincoln himself.

Yet the executive branch has fared quite well in the courts in the years since Davis made his dire warning about unchecked presidential power—including during Donald Trump’s presidency. Of Trump’s various abuses of authority, few were exposed, confirmed, or punished by the courts, which did little to stymie his power grabs. True, the Trump administration lost some high-profile legal challenges to several of its more controversial policies, including its clumsy effort to rescind the Deferred Action for Childhood Arrivals program (also known as DACA) and its even clumsier effort to add a question about citizenship to the 2020 census. And Trump himself effectively lost a pair of major disputes over subpoenas from Congress and a Manhattan district attorney for his financial records. But any objective accounting of the power of the executive branch would have to concede that President Joe Biden had more constitutional authority on his first day in office than President Barack Obama had on his last.

In their powerful and succinct monograph Phantoms of a Beleaguered Republic, the political scientists Stephen Skowronek, John Dearborn, and Desmond King evaluate the long-standing tension between two competing theories of executive power—one that locates power in the person of the president and another that finds it in the administrative state—and argue that this tug of war has itself historically served as a check on presidential prerogatives. That vital tension, however, is disappearing quickly, and not because of policies pursued or abuses committed by Trump, Obama, or any other modern president. It is disappearing because of the Supreme Court.

The central thesis of Phantoms of a Beleaguered Republic is that the modern federal government is characterized by two irreconcilable ideas: on the one hand, that presidents supervise governance and should therefore be able to control it as they see fit and, on the other hand, that an expertise-driven bureaucracy should have authority over functions that are generally considered to be nonpartisan, everything from tax collection to national security planning.

Trump portrayed the deep state as part of an antidemocratic conspiracy—and the state pushed back.

Some degree of tension between these two competing visions is inevitable. Absent a consensus on what is appropriately partisan, an all-powerful White House and an immovable federal bureaucracy will view each other with suspicion. The authors devote most of the first half of the book to documenting how and when that antagonism began to fully manifest. They pay close attention to the rise of personal presidential leadership during and after the Civil War and to the two great expansions in the size and function of the federal government: first around the time of the New Deal and then again in the 1960s and 1970s. “By any historical reckoning,” they explain, “the expansion of national administrative capacities has been a boon for America’s chief executive” and has “turned American government into a presidency-centered government.” After all, the new powers and responsibilities of the executive branch as a whole inserted the federal government into ordinary Americans’ lives to a greater degree than ever before, with state involvement in everything from meat inspection and vehicle safety to environmental protection and government benefits. A bureaucracy was needed to administer these functions, and successive presidents, as the heads of this bureaucracy, were increasingly associated with these sprawling federal programs. But despite this symbiosis, the more powers and responsibilities the executive branch had, the more the chief executive and the administrative state vied for authority over those government functions.

These two concepts of the executive branch have been on a collision course for a long time. But what is new is not just a president more willing to push the envelope than any of his predecessors; it is also a Supreme Court dedicated to putting its thumb on the scale. Unlike during most of the twentieth century, when the Court simply helped maintain an equilibrium between the Oval Office and the administrative state, more recently, the Court has intervened in support of the office of the president, to the point that it can be blamed for enabling Trump’s war against his own bureaucracy.

Hanging in the balance

Although much has already been written on the dovetailing of the growth of presidential power and the expansion of the federal government, one of the delights of Phantoms of a Beleaguered Republic is the facility with which the authors recount both relevant history and leading scholarship. The first part of the book is an engaging account of the evolution of the federal government in general, and in particular what the Supreme Court justice Elena Kagan has described as “presidential administration,” or a federal government that is regularly and thoroughly supervised not only by individual agency heads but also by the White House. But the larger the federal bureaucracy grew and the more responsibilities it took on, the more complex and opaque its hierarchy turned, the more insulated from electoral accountability its officials became, and the more independence from the Oval Office it gained—in some cases simply by circumstance and in others because Congress expressly provided for such independence. What might be called, meant nonpejoratively, “the deep state” reflects the desire of a growing expert administrative apparatus—and, at various points, Congress—to shield more of the government’s decision-making authority from shifting partisan winds and from personal patronage and the incompetence that accompanies it.

While the federal bureaucracy was accreting independent administrative authority, however, conservatives in the 1970s and 1980s were embracing a rival interpretation of the constitutional separation of powers known as the unitary executive theory. This theory found fertile ground up and down Pennsylvania Avenue, particularly as Republican presidents were in office for 20 of the 24 years between 1969 and 1993, and it had powerful advocates in two executive-branch lawyers appointed to the Supreme Court by Republican presidents during this time, William Rehnquist and Antonin Scalia. The Constitution says that “the executive Power shall be vested in a President of the United States,” and the theory’s central idea is that, as Scalia once put it, “this does not mean some of the executive power, but all of the executive power.” In other words, executive power lies with the president and the president alone.

According to this line of thinking, any independence within the executive-branch bureaucracy is constitutionally forbidden, regardless of its value. Presidents, therefore, exercise unimpeded control over the administrative state and can dismiss whomever they please, whenever they please. This theory was trotted out to resist some of Congress’s most aggressive post-Watergate reforms, many of which were intended to strengthen the bureaucracy at the expense of presidential power—particularly in the areas of war powers and foreign affairs, where the arguments for executive primacy are the strongest.

The relationship between these two concepts—the deep state and the unitary executive—animates all of Phantoms of a Beleaguered Republic. “Together the two propositions construct a politics all their own,” the authors write. “They draw each other out and tear at one another.” If anything, the authors undersell the point: the tension between these two propositions itself has significant value. James Madison was referring to the relationship between the three branches of government when he argued in The Federalist Papers, no. 51, that “ambition must be made to counteract ambition,” but the same holds within the branches of government. So long as neither force dominates the other, they maintain a healthy equilibrium whereby presidents exercise broad control over the bureaucracy of the executive branch but use relative restraint, lest they provoke pushback from within.

Tipping the scales

Scalia wrote those pithy words about executive power at the end of his second term on the Supreme Court, in 1988, in a solo dissent to the Supreme Court’s ruling in Morrison v. Olson. That decision upheld the independent-counsel provisions of the 1978 Ethics in Government Act, which empowered the U.S. attorney general and a special division of the D.C. federal appeals court to appoint an independent counsel to investigate senior government officials, who, the reasoning went, the president’s handpicked attorney general might be unwilling or unable to investigate himself. Crucially, the act protected the independent counsel from being fired except for “good cause.” In Scalia’s view, this last part was the true offense, for if the president could not fire a lawyer vested with the power to enforce the laws of the United States, then he did not, in fact, have the executive power.

One of Morrison’s most important holdings was that Congress could protect “inferior” executive-branch officers—in this case, the independent counsel—from being dismissed by the president without cause. “Principal” officers, including cabinet officials and ambassadors, have no such protection, or independence: these officers are appointed by the president and must be subject to removal at will. Thus, in the contest between the deep state and the unitary executive, Morrison tipped the scales in favor of the former.

The courts did little to stymie Trump's power grabs.

Morrison remains on the books today, but barely. Its wrongness has become an article of faith among contemporary conservatives, and as the Supreme Court has turned further to the right, its efforts to gut it have accelerated. In 2010, for instance, Chief Justice John Roberts, writing for a 5–4 majority, effectively neutered the Public Company Accounting Oversight Board, which was created in the aftermath of the Enron and WorldCom accounting scandals to oversee the audits of public companies. A provision that protected members of the board from removal except for good cause, the Court argued, interfered with the president’s constitutional authority, because, unlike in Morrison, these officers could be removed only by other executive officers whose removal also required good cause, meaning that the president’s capacity to dismiss them was further limited. The Court explained this ruling by arguing that one level of independence is constitutional but two, as in the case of the PCAOB, is not.

But the brakes have truly come off with the confirmation of the Court’s two newest justices. Brett Kavanaugh provided the fifth and decisive vote in the June 2020 ruling in Seila Law v. Consumer Financial Protection Bureau, which held that inferior officers otherwise covered by Morrison are not protected from removal without cause if they are the singular head of an independent agency, versus one of a number of commissioners in charge of an agency. In the abstract, the argument appeared plausible: the president should be able to hire and fire agency heads at will. But if the whole point of independent agencies is their independence, the ruling took a healthy bite out of Congress’s power to provide for such independence.

Earlier this year, Amy Coney Barrett cast the decisive vote in United States v. Arthrex, which handed proponents of executive power an even more significant victory by dramatically narrowing the circumstances in which executive officers are considered “inferior” and are thus insulated from direct presidential control. At issue in Arthrex were the 200 or so patent judges within the U.S. Patent and Trademark Office who hear challenges to the validity of patents granted by the federal government. With Clarence Thomas joining the three Democratic appointees in dissent, the 5–4 majority held that even these minor executive-branch adjudicators are in fact “principal” officers under the Constitution because their decisions are not supervised by an executive-branch officer. In one fell swoop, the Court significantly winnowed the ranks of bureaucrats protected from presidential removal by Morrison and substantially increased the president’s direct control over administrative judges within the executive branch—a class of officials whose independence is central to their job. 

And Arthrex is no outlier. The clear takeaway from a handful of recent decisions is that the Supreme Court is now as committed to the idea of the unitary executive as it has been at any point in its history. This development would be significant at any point in time, but it is especially glaring given that it transpired during Trump’s presidency.

Trump would have already loomed large in this Court-sponsored expansion of presidential prerogative simply by virtue of having appointed Kavanaugh and Barrett (and Neil Gorsuch, who has also supported this drive). But what Phantoms of a Beleaguered Republic does so effectively is to demonstrate the opportunity presented by Trump, who made no secret of his desire to amass presidential power, for longtime proponents of the unitary executive. These supporters of presidential authority eagerly got onboard with Trump’s efforts to rid himself of administrative constraints and of executive officers who refused to do his bidding. What had been a primarily judicial and academic movement, cloaked in dense legal jargon and technicalities, quickly became a public spectacle, as Trump sought to bend the executive branch to his will. Trump and his supporters, the authors write, “pitted the chief executive against the executive branch, and they deployed the Constitution to dislodge anything within the president’s domain that limited his authority or conditioned responsiveness to his directives.” The president portrayed the deep state as part of an antidemocratic conspiracy, and when the state pushed back—by leaking damaging information to Congress and the press, publishing anonymous op-eds excoriating the president, and filing whistleblower complaints, for instance—the result was, well, a spectacle. The authors drive the point home in a particularly incisive passage:

The president’s insistence that he alone held the executive power of the American state drew out these forms of resistance. Tit for tat, he and the officers of the executive branch turned the Deep State conspiracy into something of a self-fulfilling prophecy. . . . [The resistance] 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. The clear-eyed choice is not between the Deep State and the unitary executive. It is whether we value what depth has to offer or not.

The merits of the two sides of this debate aside, the authors’ point is that for those who supported Trump’s expansion of the power of the chief executive, the unitary executive theory “is, if nothing else, an elaboration of newfound skepticism of the value of depth.” Proponents of the theory are unconvinced by expertise, mistrustful of nonpartisanship, and suspicious of everything that cannot be directly controlled by the chief executive. Fully applied, the theory therefore eliminates one of the critical checks that exist to prevent presidents from pushing the envelope too far. With the administrative state rendered an arm of the Oval Office, and other checks on presidential power, such as the courts and Congress, also not stepping up to the plate, the president ends up being accountable to virtually no one.

both sides now

Skowronek, Dearborn, and King don’t ignore the Supreme Court’s role in adjudicating on executive and administrative power, but they don’t feature it in the way that it merits, either. Trump is hardly the first president to push idiosyncratic theories of executive power. President George W. Bush, for instance, embraced what some scholars dubbed “the commander-in-chief override”—the idea that any statutory limits on the president’s national security powers were unconstitutional to the degree that they interfered with the president’s ill-defined authority as, in the Constitution’s words, “Commander-in-Chief of the Army and Navy of the United States.” The Supreme Court of that era implicitly rejected this theory in one especially high-profile dispute over the use of military commissions to try Guantánamo detainees. Today’s Supreme Court, by contrast, has reconfigured constitutional authority such that the president will have much more power going forward. Trump may doubt that the Court was on his side because it didn’t hand him the 2020 election, but it was, and is, very much on the side of the presidency as an institution.

As the authors note, the unitary executive theory “is a license to presidents to vent their instinctive hostility to depth, and we should expect that future presidents will use it as such.” Indeed, Biden already has. Shortly after the Supreme Court’s decision in June in Collins v. Yellen, which reinforced the 2020 ruling in Seila Law, Biden fired the Trump-appointed commissioner of the Social Security Administration without cause—even though the person in that position is protected from removal except in the event of neglect of duty or malfeasance in office. By way of explanation, the Justice Department’s Office of Legal Counsel, which is headed by progressives who, before joining the Biden administration, had been longtime academic critics of the unitary executive, released a memo arguing that the protection from being removed without cause was no longer constitutional after Seila Law and Collins. Apparently, if the unitary executive truly is ascendant, even Democrats want to reap the benefits. 

The Supreme Court is now dedicated to putting its thumb on the scale in favor of the presidency.

That is the trap against which Phantoms of a Beleaguered Republic ultimately rails. Embracing the unitary executive at the expense of the remaining checks within the executive branch “beckons us toward a strong state, hierarchically controlled by the president.” The authors explain that defenders of expansive presidential power reassure the wary “that this is how it was meant to be, that the framers envisioned a plebiscitary democracy in which every incumbent cuts deep, each truly an administration unto himself.” But as Davis warned 155 years ago in Ex parte Milligan, surveying a polarized political landscape strewn with the wreckage of the Civil War, therein lies the problem. 

The question then becomes how to restore the balance that characterized both the executive branch and the separation of powers throughout the century after Davis’s ruling. It seems unlikely that Congress will reassert itself, whether because one party is reluctant to check the power of its own president or because legislation that does try to bolster existing checks will be vetoed by presidents who have no incentive to give away their own power. With the separation of parties taking the place of the separation of powers, interbranch checks on presidential power have increasingly fallen away—leaving only intrabranch checks. It is also hard to be optimistic, given the polarized state of U.S. politics, that voters will simply eliminate the problem by electing presidents who decline to expand their own authority. That is why, by the end of Phantoms of a Beleaguered Republic, the Court appears equal parts culpable for the current state of affairs and the best hope for reform—not changes of the like currently being floated by progressives, who want to add seats to the Supreme Court, take away its power to decide certain cases, and so on, but reform that maintains a healthy balance between the chief executive and the administrative state, such as treating fewer officials as “principal” officers, who must be subject to the president’s absolute control, and expanding Congress’s power to insulate “inferior” officers from the Oval Office. As one of the Court’s most influential justices, Oliver Wendell Holmes, Jr., once said, the key is to accept that “certainty generally is illusion, and repose is not the destiny of man.” In other words, the hard line of the unitary executive theory, comforting as it may be to those who seek certainty in knowing where federal power lies, does not make it the wiser choice: rather, the United States is better off with tension between the Oval Office and its bureaucracy.

Trump laid bare the risks of the unitary executive, wielding expansive presidential power for personal gain with relative impunity. The Supreme Court has so far reacted as if what happened was because of who Trump was and is, not because of the powers of the office that he held—powers that exist and that he was able to benefit from thanks in part to the Court itself. The United States may simply have to hope that the Court will respond differently in the future, in defense of checks on presidential authority, if the country elects another Trump, because the alternative—a president unbounded by either external or internal checks—would be worse.