Republican Remedies

Since its founding of the republic, Americans have devised a variety of different ways to reconcile unity with depth, separation with checks, and presidentialism with republicanism. This chapter surveys the succession of informal institutional and organizational improvisations that periodically altered practical working relationships within the American constitutional system. These extra-constitutional contrivances created several distinctive “systems” of administration, each of which preserved the republican idea of inter-branch collaboration. Nineteenth-century remedies were party-based; twentieth-century remedies were administration-based. The move from one system to the next marked a profound change in the operation of government at large, but at every turn, a more powerful presidency was corralled into novel arrangements that reaffirmed collective responsibility. The origins of our beleaguered republic lay in the 1970s, when that spirit of accommodation began to break down. Presidents grew more independent in their political and institutional powers, and they asserted their right to unitary control over the executive branch more vigorously. In the congressional pushback, collaboration gave way to a constitutional face-off.

The Unitary Executive

This chapter examines the theory of the unitary executive and its deployment in the Trump presidency afgainst the specter of a Deep State. The theory asserts that the president possesses all the executive power, that the incumbent alone is the executive branch. The idea is that anything less than complete control over administration by that individual risks an obfuscation of responsibility, clouding the judgments on presidential performance that “the people” get to deliver retrospectively in the next election. This reading of the Constitution is often joined to a strikingly plebiscitary conception of American democracy. This chapter takes up two issues of special interest. The first is an alternative “republican reading” of the Constitution which anticipates inter-branch collaboration in the control of administrative power. The second is the relationship between the vesting clause of Article II, on which the unitary theory is based, and the selection procedure, which has changed radically since its original constitutional formulation. The chapter concludes by pointing to the distortions of constitutional meaning introduced by joining an expansive reading of the vesting clause to contemporary selection mechanisms.

Depth in Norms

This chapter examines depth in norms, shared understandings of what constitutes appropriate political and institutional behavior. Norms that shield the work of administrators reflect an abiding, collective interest in preventing the operations of the executive branch from being overrun by personal interests and the political calculations of the moment. Nowhere in the executive branch do norms play a larger role than in law enforcement, where they figure prominently in public perception of the legitimacy of the entire operation. By the same token, however, political insulation and administrative discretion make the Federal Bureau of Investigation and the Department of Justice prime sites both for resistance to the claims of a unitary executive and for presidential suspicions about a Deep State with interests of its own.

Push Comes to Shove

This chapter introduces the main themes of the book. It situates the concepts of the Deep State and the unitary executive in the politics of the Trump presidency. When President Trump employed the term “Deep State,” he envisioned a duly elected leader hindered in the pursuit of his political priorities by an entrenched officialdom and their extensive support networks arrayed. Americans are predisposed to be wary of the state, and the specter of a Deep State is a national nightmare. President Trump invoked this image to strengthen the case for an executive branch unified and hierarchically controlled by the president. But for defenders of steady management, the presence of trained public servants is a necessary means to implementing knowledge-based public policy, guarding against hasty and arbitrary impositions, and ensuring that checks and balances work. The Deep State and the unitary executive are phantom twins, symptoms of two different conceptions of good government in contemporary America.

Depth in Staff

This chapter considers depth in staff, exploring the role of White House officials tasked to bridge the president’s personal direction with the institutional presidency and the executive branch at large. These staffers are normally part of the presidential party, collectively representing the different wings of the president’s electoral coalition. In the Trump administration, the White House staff jostled for influence and favor throughout the president’s first year. Trump bristled at their efforts to establish regular processes and to control the flow of information. The president saw management of that sort as an impingement on his authority to act on his own instincts and to direct his subordinates at will. Differences over the issue of trade afford a brief, but sharp, illustration of the tension between an institutional presidency and the personal direction of a unitary executive.

Depth in Knowledge

This chapter considers depth in knowledge, focusing on rules-based protections for knowledge-based authority in the executive branch. Rules provide firmer footing for depth than norms do, but even rules strain under presidents bent on political control. With the so-called war on science ramping up again in the Trump administration, questions about whether and to what extent rules protect government research and expertise from the unitary executive have been pushed front and center. Here we consider four cases in which knowledge-based authority was besieged, focusing on the National Weather Service, the Environmental Protection Agency, the Department of Agriculture, and the executive branch’s response to the coronavirus pandemic.

Weak State, Strong State, Deep State

The most pressing reason to revive scholarly discussion of the state in America is that, for the first time, everyone else is talking about it quite candidly. Trump’s assault on the “Deep State” has pulled that old chestnut front and center. But as many researchers have shown, the American state defies easy characterization. Some describe it as a “weak state” because of the constitutional fragmentation of authority, the divisions of national power among three branches and between the national and state governments vertically. Others describe it as a “strong state” for its proven capacities to release social energies and deploy resources under pressure. The weak/strong debate has turned on the most exceptional features of the American state. This chapter reconfigures that debate around attributes of depth, and it brings to the fore issues that the modern American state shares with all others.

A Reckoning with Depth

The Deep State versus the unitary executive has been a spectacle too vivid to ignore. It should impress us all with the unsettled place of administration in contemporary American government. One might have thought that a matter of such vital importance to the effective operation of the state would have been resolved long ago. But over the past half century, questions surrounding administrative power and its political control have been growing more, not less, contentious. Trump’s presidency forces a reckoning that is long overdue. In the Epilogue, we evaluate the lessons of this clash between unity and depth. The problem is not that the president can’t find evidence to hang on his frame: the problem is the solution intrinsic to the frame. The state Trump would have us embrace is every bit as menacing as the state he would have us abandon.

Depth in Appointment

This chapter examines depth in appointment, focusing on the tension between qualifications for administrative office and expectations for presidential control. What Trump’s administration has brought to the fore are the suspicions harbored by a unitary executive toward qualifications per se and in the broadest sense of the term. Ability, sound judgment, commitment to assigned duties are all presumptive conditions on presidential control, implicit limits on political subordination, anticipated brakes on personal will. Conversely, the demand for executive branch unity elevates loyalty above all other qualifications. Here, we offer snapshots of the drive to dissolve administrative qualifications into loyalty to the president at several sites, considering: a hybrid arrangement at the National Security Council; the use of acting appointments at the Office of the Director of National Intelligence, Department of Homeland Security, and the Consumer Financial Protection Bureau; the assault on merit-based appointments for administrative law judges; and protections against at-will removal at independence agencies like the Federal Reserve.

Depth in Oversight

This chapter examines depth in oversight. It brings into focus the new oversight regime instituted by Congress in the wake of the Nixon impeachment and considers its effect in instigating impeachment charges against President Trump. Whistleblowers and inspectors general safeguard congressional interests in administration and qualify hierarchical control by the president. Activated by Trump’s backchannel dealing with the government of Ukraine, a whistleblower and an inspector general brought the relationship between administrative depth and congressional power out into the open. During the House’s impeachment hearings, congressional provisions for oversight split the executive branch, pulling administrative subordinates into Congress’s orbit and pitting them against the president more explicitly than ever before. Congress depended on the administrators who were willing to come forward, and it provided them a forum for airing their own ideas about good government.