On Our Post-Constitutional Moment, Pt. 3
Relatively quickly after the start of President Trump’s second administration, critics accused it of generating a constitutional crisis (see here in the NYT). And it’s something I hear a lot in my own intellectual environment. I fully understand why such critics would say that because the presidency is acting with unusual speed in violating existing conventions and, in non-trivial instances, ignoring the letter and spirit of the law (including principles of due process and accountability). But while certainly disconcerting that’s not sufficient for a crisis—for a crisis to occur, other branches of government need to push back or check the executive, or (what may be worse) civil society and/or the armed forces need to stop treating the executive as authoritative.
Interestingly enough, political advocates of the so-called ‘unitary executive theory’ treated the status quo ante as itself constituting a constitutional crisis. (In terms of the academic literature these proponents are usually categorized as strong versions of the unitary executive theory.) I quote from an essay in American Greatness by Paul Ingrassia a lawyer who has since joined the new Trump administration:
It would be unfair to Mr. Ingrassia (previously unfamiliar to me) to suggest that he cheers on all of the administration’s convention breaking practices (although his X-feed suggests no hesitancy). But it’s quite clear that what Trump’s (and Musk’s) critics view as a crisis he might well view as “an emergency corrective” required by an already existing crisis situation.
As an aside, on my somewhat Machiavellian social theory, the fact that practices that are supposed to correct for a crisis are themselves seen as inducing a crisis is itself evidence that we live in an age of corruption. For corruption is not just about illegal and legal bribery, but also and even more about the bending of the rules such that when they are taken to function properly we can’t decide whether the public good is structurally undermined or not. Obviously, a state of corruption itself provides cover for many public agents to take advantage to pursue private ends.
As regular readers know (here), I think it is a weakness of the American constitutional framework that it does not have good mechanisms to allow for a renewal or restoration of a decayed constitution. The official solution — constitutional amendment — presupposes (elite and/or widespread social) consensus precisely what’s absent in a genuine crisis.
By contrast, Ingrassia strongly implies that the original Constitution does allow for such an alternative, that is a Presidentially led corrective:
The implied emergency powers the Constitution confers upon the President would allow, under extraordinary circumstances, the President to exercise supreme, even unlimited, power, depending on the gravity of the crisis. This would enable the President to salvage and revive the legitimate Constitution from the forces that would otherwise seek to destroy it when confronted with a threat to its security. [Emphasis in original]
To avoid confusion, on Ingrassia’s view the legitimate constitution has already been subverted by the administrative state which has destroyed legitimate executive power for an “illegitimate administrative or bureaucratic power.” I discussed a view like this in two connected posts on Vought (here; and here), so won’t repeat myself on it.
Ingrassia’s approach explicitly presupposes a number of moving parts. First, and somewhat surprisingly, on this view the president is the only elected official that can represent the will of the public; or as he puts it the President is the “one true democratic actor, assuming a relatively legitimate election process.”
As regular readers know, I think this position quite naturally slides into Bonapartism (and see below why that’s quite predictable). But taken at face value, for Ingrassia, “the will of the people” is “the only legitimate sovereign.” And, unusually on the American political right, there is not a hint of a doctrine of State sovereignty. So true friends of democracy may well welcome that a form of democratic majoritarianism is being recovered on the American political right (not seen since the young Willmoore Kendall). But somewhat oddly at the expensive of the legislative (which is where Kendall’s Locke would house it).
The real test, of course, for this theory will be when/if a president is elected that has very different political aims than MAGA. For, we can grant (for the sake of argument) to the strong unitary executive theory that delegating power to or reliance on unelected bureaucrats somehow subverts the legitimacy of the president (and so rules out technocratic government through the administrative state); but we can easily imagine an elected President with different political aims than Trump’s: open borders, free trade, respect for international treaty commitments, a carbon free economy, easy money, etc. (I picked examples that need not require an expansive bureuacracy).
Second, Ingrassia thinks that the President is the agent of correction (or the re-founder). Now, this language of re-founding and renewal is the strain of Machiavellianism that has resurfaced before in American political thought: it is most notable in the debates over Lincoln as re-founder of the Constitution or the founder of a new constitution.
My own view is that even if one were to think the ‘unitary executive theory’ is a plausible account of the original constitution, the president as agent of constitutional renewal is not at all a plausible account of how the US constitution can be renewed or brought to its true aim. Even if some of the US Founders can themselves be thought of as Machiavellian ‘New Princes’ (not the least Hamilton), they can’t have legislated (in the Machiavellian sense) for the possibility of a new prince. For that would invite permanent sedition. (I think Hamilton himself makes this point somewhere.)
Third, and this is connected to my first observation, this approach re-introduces the primacy of politics. It does so on four levels: (i) it is supposed to wrest power away from unelected bureaucrats and experts and place it in the executive and (somewhat more fractured) the legislative; (ii) the executive is fundamentally accountable to voters. (Obviously term-limits are seen as a problem because they block such accountability.) (iii) following from (i) it encourages social and special interests to organize themselves politically rather than try to make deals with the bureaucratic (or deep) state. And (iv) it invites a Schmittian turn in politics. To which I turn next.
Fourth, Ingrassia’s actual argument (which makes no mention of Machiavelli) relies on a mixture of jurisprudential and Schmittians arguments. The jurisprudential arguments all involve Supreme Court decisions pertaining to “presidential authority over external affairs.” It is a bit unfortunate that Ingrassia does not really address the fairly obvious objection that authority over external affairs does not automatically cover domestic authority nor the further extension to “even unlimited, in certain circumstances, uses of presidential power.” Presumably, other nations and federated powers are, at least, a partial check on the abuse of excessive Presidential authority in external affairs. That check is absent domestically.
The Schmittian argument (which is introduced with a nod to Vermeule, although without any of Vermeule’s emphasis on the common good) reaches the following impasse:
Deeper problems arise concerning issues of sovereignty. Given our state of constitutional emergency, conflict emerges over how a legitimate President might both theoretically and practically exercise constitutionally prescribed powers to restore the original, legitimate Constitution.
The impasse is resolved by the following line of reasoning:
It’s important to realize that the position stated here fully allows the Chief magistrate (that is the President) to ignore even procedurally proper laws, if s/he thinks it leads to (ipse facto) illegitimate rule by bureaucracy. It’s wholly unclear how this is compatible with relatively stable governance of a state in a society with an expanded division of intellectual labor. [As an aside, something very close to this uncertainty is, in fact, the legal status quo Stateside since (2020) “Seila Law LLC v. Consumer Financial Protection Bureau.” As Sunstein and Vermeule put it, “for the first time in decades, the constitutional status of the independent agencies has become insecure.”]
But, of course, the really important issue lurking here is that this way of articulating the unitary presidency turns the president into an elective monarch with a claim to the kind of prerogative that cost Charles I his head. (This is why I said it leads straight to Bonapartism, or worse.) The colonial rebels took umbrage at far less expansive use of the prerogative. So, it’s a bit odd to present this in terms of the original constitution.
It is quite striking that contemporary political friends of the (strong) unitary executive do not even bother to address questions about accountability and mitigation against the risks of abuse or conflicts of interests. Anyone can state that a situation licenses the use of emergency powers and sometimes they will, but human nature being what it is one would wish not to see them cheered on when the risk of error is so great.
For Schmitt, of course, such risks are a feature and not a bug because his theory is so existential in character. The political arena is supposed to be dangerous. For a Schmittian that is what makes life worth living. What is so odd about his American epigones is not just that they have tied their current commitments to a man who is so focused on deals and profit, but more significantly that they keep their distance from Schmitt’s existentialism and seem to assume that they are immune from the dangers of the political.
On their theory “the President is the master of his ship—a ship that includes the entire Executive Branch, which is subordinate to the President’s authority.” And they propose to navigate the ship into stormy waters without the use of radar, or lifeboats.
As it turns out, the unitary executive theory isn't really an issue. Trump has absolute control over the legislature and near-absolute control of the judiciary. He could do everything he's doing now if he were the PM in a parliamentary system with a disciplined bicameral majority and a packed judiciary. The question of whether he could override an independent legislature and judiciary is moot.
The real problem is that the majority of Americans have either voted against democracy or chosen not to vote to save it.