SCOTUS, the Unitary Executive “Theory,” and the Debilitation of the Modern State
Permanent damage appears to be coming (oh, and it enhances the authoritarian power of the presidency as well).
Ihave argued that we are likely headed towards a government system wherein elections are held, but that most power is concentrated in the president, making each election essentially the selection of an authoritarian ruler for a four-year period (see here, for example). The Supreme Court of the United States continues to be the handmaiden of this change, and this week’s hearing about the ability of the President to fire members of independent agencies signals the further acceleration of movement in that direction.
The NYT reports: Justices Seem Ready to Give Trump More Power to Fire Independent Government Officials.
The Supreme Court on Monday appeared poised to make it easier for President Trump to fire independent government officials despite laws meant to insulate them from political pressure in what would be a major expansion of presidential power.
[…]
A decision in the president’s favor, they said, would call into question the constitutionality of job protections extended to leaders of more than two dozen other bipartisan commissions and boards. Congress intended to protect these agencies from partisan pressures and charged them with protecting consumers, workers and the environment.
In simple terms, if the Court does as it appears poised to do, it will radically reconfigure the way government works in the United States by basically making agencies designed to function as the result of rolling appointments of experts to slowly reflect evolving national politics/balancing partisan influence (a notion that is, I would note, inherently conservative, if we are to use the word’s actual meaning) to one that will allow a new president to make sweeping changes every four years. It will gut expertise and increase personalistic rule by a given president. It will also invite corruption and diminish basic governmental capacity.
If we need an illustration of what this means, consider the way in which Health and Human Services and the Center for Disease control has been turned into a playground for the ideological fever dreams of people like Robert F. Kennedy, Jr. and Mehmet Oz and how even if a new administration comes in and says that we are going back to “normal” on vaccines how hard accomplishing that goal will be.
Now, envision that dynamic for the whole of the administrative state.
There is a lot to unpack here, and I would send readers to Don Moynihan’s Substack post, At will? Whose will? as it comprehensively covers the topic.
I would note the following paragraphs that succinctly summarize what we are facing, emphasis mine.
The Court will endorse Trump’s practice of politicizing agencies, of valuing loyalty over competence. It also is one more step along the path of unitary executive theory, the radical idea that the Founders actually wanted a King and not a President. In the hearing on the Slaughter case, Justice Sotomayor noted that “Neither King, not parliament, not prime ministers ever had an unqualified removal power” but that is what unitary executive would grant.
[…]
And so, the judiciary will kill key parts of the working model of American governance, built up over time to adapt to the needs of the country, with no functional alternative beyond handing unprecedented power to an eager authoritarian.
He also provide the following list, which I concur with (emphases in the original).
The purging of employees is important for three reasons.
First, it will worsen state capacity, in both the short term as acquiescent hacks replace principled public servants, and in the long run as talented people decide that a workplace where they can be fired by ideologues is not for them.
Second, it gives lie to the claim that Trump officials made to justify politicization: they denounced a deep state engaged in bureaucratic resistance to legitimate presidential power. Such claims were based on one-sided anecdotes. It always seemed more likely that Trump officials were either blaming civil servants for not being willing to violate the law, or for their own managerial failures. This explanation seems much more plausible when we see why people are being fired.
Third, and most relevant for future debates about the civil service, there is a push to move to a completely at-will system, while also removing union protections from employees. And this is what I want to focus on.
There is much, much more in the post, which I recommend in full.
In terms of the authoritarian turn in American politics, I am less concerned that we are going to see some massive attempt at visible electoral fraud and, instead, see the utter erosion of the foundations of democratic governance, which takes into account the long-term evolution of goverment via the collective action of elected officials, and replaces its with a more personalistic power centered on the president.
I would add that the gerrymandering wars, and what I suspect will be the gutting of the meager Voting Rights Act protections against racial gerrymandering, will lead to the death of what meager competition exists for House seats. This will mean that only massive swings in general public opinion will have much chance of changing the hands of control of the House (more on this at some point in the future).
Couple that with the massive shifts to the global political order, specifically the fact that Europe can no longer trust the US’s leadership position and the willingness of the Trump administration to see the world in terms of great powers’ spheres of influence, and it is hard not to see the Trump administration as one of the most consequential in American history.
That statement is not, it should be clear, a compliment.
Indeed. James Buchanan was also one of the most consequential presidents. 600,000 dead is pretty consequential. And I fear you are correct that our future is electoral autocracy. Also oligarchy.
I am going to laugh my ass off when all the super smart middle class people who think that the government is a boot on their neck can’t get a mortgage because the Federal Reserve System no longer works.
Also, any one holding any US treasuries should quickly and quietly start bleeding those out. That shit’s gonna be worthless once Trump fires Powell.
Like, I can understand the corruption part of all of this. That’s easy. What I have trouble with is just how absolutely pickled GOP brains have become. This is not going to end how Roberts and Kavanaugh and the rest of those idiots thinks it’s going to.
My only real hope here is that the GOP so screws up their redistricting that the Blue Wave just absolutely sinks them and the first thing that they do is impeach and remove 6/9 Justices and then just leave them vacant.
@gVOR10:
Oligarchy only works if the oligarchs have money. If they blow up the Federal Reserve, and the EU, Japan and South Korea dump all their treasuries (because why would you hold the paper of Russia 2.0), it’s going to wipe them out. Most of of them are bullshit billionaires whose wealth is basically a rickety shithouse of financialization. Blow up an investment bank or two because of Trumpian malfeasance and there will be no one to lend them money.
Also, can anyone translate GOP nonsense speak for me? I don’t see any limitation on Congress’s power to delegate it’s legislative power in the text. I mean other than the next session of Congress can come along and undo it.
@Beth: The German oligarchs supported Hitler and did very well. Up til the bombing hit. The game seems to be to focus on one’s own benefit while leaving the maintenance of society to others. Then doing everything they can to rob the others of any power.
I guess the primary motivation for promoting the unitary executive is the sense that Congress can’t do anything. They can get their majorities, but there’s so many veto points they still can’t get rid of USAID or VOA or Obamacare.
They can’t go back to the gold standard. Trust me, there are lots of people out there who love that idea. They would not love the reality of it, though.
So that’s why they want it.
Meanwhile, lots of people whom I’ve talked to over the year like the idea that Congress can’t do much most of the time just fine. This is a small ‘c’ conservative position. The hyper-important problem of the moment is probably not that big of a deal, in their mind.
So, I don’t see this idea going anywhere electorally. However, the Christian Nationalists have pretty much abandoned their commitment to democracy. Back when I moved in evangelical circles that was unthinkable. Not really sure what happened. Influence ops by the Russians? By Big Oil? Dunno.
@Jay L. Gischer: I mean, I get that. Congress can’t get anything accomplished for a variety of reasons (IMHO, much of it is fueled by gerrymandering, which is going to get even worse), so in order to actually have stuff done, unitary executive it is.
What I can’t wrap my head around is the notion that, say, canceling student debt (Biden) was an abuse of Presidential power, but alllllllllll of this sh!tshow that Trump has been pushing, including dismantling independent agencies that are supposed to be above politics, is A-OK.
This isn’t even hypocrisy at this point, it’s pushing a right wing agenda. It’s insane. The weight of this nonsense, as Beth correctly points out, is going to collapse.
@Jay L. Gischer:
A condition largely driven by Republicans starting with Gingrich. They’re largely happy, as you note, with congress doing little. It flows from Republican donors not wanting much from the government except subsidies and purchase orders. And that does create a vacuum into which they would like the prez to step. Or at least a Republican prez. Something the Republican donors’ lackeys on the Court are happy to provide. But I think the primary driver for the unitary executive is simply conservative psychology. They need a daddy figure.
@Jen: Right. The question I keep asking myself is how big, how bad, does the shitshow need to get before American voters realize that a change is needed.
(They will probably never say, “I was wrong”. Except for the rare few.)
Who can be surprised? The majority of this Court is comprised of conservative movement radicals, who have been waiting for this moment for decades. ‘Originalism’ is a fig leaf, used to rationalize overturning whatever precedent needs to be consigned to the incinerator.
To say that Trump is consequential is almost an understatement. He’s the most consequential president since FDR.
@Jay L. Gischer:
May I ask when you moved in those circles?
My initial thought was to associate it with the silent majority. It’s easy to be pro-democracy when one believes that they are in the majority.
On the other hand, I remember some signs from 2016 MAGA, “SILENT NO MORE.”
@al Ameda:
FDR built up the middle class. Conservatives have been trying to tear it down ever since. They’re very close to success.
@gVOR10:
I suspect German “conservative” idiots of the business/military/junker elite would likely have found a victorious Third Reich little more to their taste.
Hitler and much of the Nazi leadership utterly despised them, being from very different backgrounds, and with very different basic world-views.
It’s quite likely the “revolutionary” and “socialising” side of the NSDAP would have come to the fore again, and also the military become subordinated to the Waffen SS.
The revenge of Ernst Rohm, from beyond the grave?
Doutless the rich would have held on to a good deal of money, so long as they were quiet lttle mice.
But little in the way of real power, I suspect.
@Jay L. Gischer:
Seems Obama was more consequential than advertised.
It does remind me of the immortal lines from “A Man For All Seasons”.
“Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?
This country is planted thick with laws, from coast to coast, Man’s laws, not God’s!
And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?
Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
The “conservative” (hah!) Supremes are forging a weapon, fools that they are.
And like most swords, it can cut both ways.
I had thought about linking to a NYT piece this morning discussing Trump v Slaughter, in which everyone expects the Supremes to overturn Humphrey’s Executor and allow Trump to fire anyone. But I had trouble trying to summarize it. At LGM Scott Lemieux does a fair job.
Per Will Baude, Roberts and his accomplices want to destroy the regulatory state. IMHO this would make governing a huge, complex society impossible. And they and their sponsors see that as a good thing.
@Jay L. Gischer:
I suspect that, like many (me for instance, when I’m in a cynical mood) the MAGA-vangelicals always regarded “democracy”, or for that matter even their more valorised “republic”, as more a means than an end.
And “reactionary Catholicism” (especially the quasi-monarchic variants) that seem to be inordinately, yet hilariously, popular among the neo-reactionary elite (Hi, J.D.!) has never had much time for either democracy or constitutional republicanism at all.
@Kurtz:
I recall a died-in-the wool “High Tory” sorta-reactionary Conservative I once knew (older relative of friend) saying, re the UK/EU Maastricht controversies back in the early ’90s :
“If only the silent majority would f@cking shut up.”
Reactionary old sod he might have been, but he had little patience with populist dimwittery.
LOL.
@JohnSF: There is nothing in Trump’s circle that will preclude them from telling the Supreme Court (individually or collectively) that they are fired; that the building they reside in is now off limits to them; and that they will be replaced by Justices of their own choosing.
@Scott:
That would really be a total and overt overthrow of the constitutional order.
I rather doubt, or at least hope, many of Trump’s adminstration would not have the stones for such a move.
It would be a real “roll the iron dice” moment.
If they pushed it that far, the question then would be, what happens re Congress, the military, and the Governors various?
Let us hope it does not come to such a pass.
@JohnSF:
The post-republic Romans went to civil war for far less.
In principle, Congress can defund the fixer court. It’s an open question whether this would violate Article III. The relevant part of section one reads “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
The way I read it, there has to be a supreme court (of course, there isn’t one now except in name only), as well as inferior courts. But this is the age of magical originalism, where the plain text means what those in power say it does.
The lower courts could declare the move unconstitutional, but then these can be defunded as well. Courts just slow the dictator down, after all. Who needs them?
@gVOR10:
I suspect we will get “electoral autocracy” for exactly one cycle. But, once the authoritarianism comes from the left for a short while, the Republican donors/oligarchs will decide the “electoral” part of that is no longer suitable, elections will end and we will be left with pure autocracy.
@JohnSF:
Quite the line by the ol’ sod.
I have trouble associating the phrase with populism in America prior to its use in 2016. The Trump campaign did use it. It was primarily used in the 70s and 80s wrt Nixon and Reagan. In fact, with them, it seemed to invoke an almost anti-populism. Though, maybe I’m wrong.
The often-overlooked element in this discussion is that the United States is already close to an ungovernable nation. The so-called administrative state is the only entity which is even slightly capable of transforming edicts from Washington into consistent outcomes everywhere from San Diego to Long Island. Replace it with “a more personalistic power centered on the president” and you’d get what you’re witnessing now, but on steroids: rank incompetence and corruption. Cities and states which felt less and less obligation to pay attention to what the president wanted the further they were from his court.
Historically, such a situation does not persist indefinitely. It leads to mass civil disturbance, and/or civil war, and/or some kind of coup, usually by the military. If the Fates are kind, violence is limited until a new constitutional order takes control following a national convention of some kind. Often the Fates have not been kind.
I see no reason why the US will be able to avoid this trajectory. Indeed it appears to be heading towards it at an accelerating pace.
So just to be clear, Justices from the party that cries about activist judges is going to completely change the Constitutional order that has existed for ages and in the process fill the swamp until it overflows its banks. Which, of course, is counter to another of that parties claims.
I’m beginning to think that the anti-federalists had a point, and that in the musical Hamilton, Hamilton is either a fool or an antihero.
It’s been a while since I really read the anti-federalists, but a lot of their warnings about a consolidation of power in the hands of the executive seem to be coming true.
Hmm. Would doing more research make me feel better about things? If only there was another musical upon the topic.
The MAGAt loving SCOTUS members will rue the day they created a kingly POTUS, when said POTUS takes them out on a whim using their own tortured legal dispensations.
SCOTUS could take lessons from Judge Dredd.. say what you will about the Judge System, Dredd himself is an honest arbiter.