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Constitutional Contrary or Conundrum? The Imperial Presidency vs. the Unitary Executive

Posted by nouspraktikon on June 4, 2017

Strong President, Weak President

Setting boundaries and limits to power is the essence of politics in a republic.  No Latin word was ever belabored more than imperium in the era prior to Caesar’s crossing of the Rubicon.  Originally it referred to the “sphere of power” which was exercised by a magistrate, great or small, beyond which the office holder infringed upon the rival authority of some other elected official.  With the atrophy of the Republic, it became a personal noun, the Imperator, the root of our term for a King of Kings, an “Emperor.”  The word, thus transformed, described a  person who’s “sphere of power” had become the whole world, thus annihilating the use to which its root had once been put, namely, to define and limit power.

Last year I predicted that Donald Trump, if elected President, would not become a fascist dictator, an “Emperor” so to speak.  Rather, the tremendous forces arrayed against him would ensure that the office would be brought to heel to a much greater degree than those who fear an Imperial Presidency are wont to imagine.  None the less, even I have been surprised by the extent of the weakness in the executive.  If we have passed any Rubicon, it seems rather that we have passed over from a concealed, to an open, form of oligarchy.

One way of coming to grips with this non-revolution is to admit from the outset that 1) the Imperial Presidency, and 2) the unitary executive, are contraries, not complements.  If we were to talk about official spheres of power with the fastidiousness of the ancient Romans, we might call the first, the President’s “lateral power” and the second the President’s “upright power.”  Imagine that presidential power is a rectangle of fixed area which loses depth whenever it is stretched horizontally.  I know that is a rather strange image to put in the service of a radical hypothesis, but bear with me.

Why the unitary executive is a great Constitutional doctrine

Generally when we ( and by “we”I mean, libertarians, conservatives, traditionalists, natural rights advocates, strict constructionists, etc.) hear the word “president” modified by the word “strong” we go into a fit of moral indignation, if not outright hysteria.  Yes, generally heads of state should be weak, lest they turn into tyrants.  However the American presidency is a unique institution, one which the founders of the Republic intended as a safeguard of liberty, just as much as the legislative and judicial branches.  To begin with, the very notion that the American president is a “head of state” is an extra-Constitutional notion, one which arises from the necessity of adjusting American nomenclature to the standards of  diplomacy.  Indeed, since the Congress is our premier branch of government, the Speaker of the House has a fairly good claim to be the federal head of state, on the analogy of parliamentary systems.

Leaving aside the symbolic, and rather silly, issue of heads of state, let’s turn to a more fundamental question which impacts on the idea of the unitary executive.  Each of the branches of the Federal government must conduct its internal affairs in hermetic isolation of the other, while being in constant cooperation as corporate bodies to conduct the governance of these United States.  Naturally, each of the branches will attempt to extend its sphere of authority, or what the Romans called, their imperium.

Now the matters which are of concern to each branch are well spelled out in the Constitution, but each of the branches always attempts to grow its authority by multiplying those things by which it exerts authority.   Thus the legislative branch attempts to grow its authority by increasing the volume and complexity of legislation, while the judicial branch attempts to grow its authority through the multiplication of rulings, judgements, and injunctions.  On the other hand, it is primarily the executive branch which attempts to grow its authority through the multiplication of offices.  Sad to note, but the three branches may remain evenly balanced while all of them grow in concert, disrupting the larger balance between governmental and non-governmental institutions in civil society.

Whatever cure there might be for the exponential growth of government in the legislative and judicial spheres, the theory of the unitary executive provides both a unique analysis and possible cure for burgeoning bureaucracy.  How so?

Strictly speaking, in the American republic there can never be more than one government officer at a given time.  The name of this officer is the President of the United States!

Oh yes, if you must quibble, there is also a deputy in case of death or incapacitation, the anomalous Veep.  None the less, two officers is a pretty strict limit for the bureaucracy of a large republic.  It reminds one of the twin consuls of Rome, a historical precedent which was never far from the thoughts of the American founders.  In terms of modern political theory we have arrived at genuine “minarchism”…an ungainly word which has been coined to express the most limited of limited governments.

Of course, for true unity of will and purpose, a person can never really trust anyone else to do their own job.  Hence the most pristine unitary executive would be one in which the President did all the work of executive branch personally.  We can imagine a President who, dispensing with the service of a secretary, was able to handle all executive correspondence personally.  (NB: The reason we can imagine it is that we live in a world of word processors, computers, and the internet.)  However other things, such as warfare, might be a bit more tricky, unless our chief magistrate had the strength of the Biblical Samson or a modern-day comic super-hero.

So to be on the realistic side, even our pristine unitary executive would, of necessity, need to contract out for a few staffers.  Hopefully these would all be temporary workers.  After all, the chief magistrate himself is a temporary worker, limited to four, or at the maximum, eight years of employment by the American people.

Now before you dismiss this as nothing more than utopian swamp fever, perhaps we should take a look at the way the doctrine of the unitary executive has played out in the history of the Republic.

 

The historical roots of a weakening unitary executive

Unfortunately, while the imperial Presidency is the most realistic of real-political realities, the concept of a “unitary executive” is little more than a constitutional doctrine which has had to go hat in hand through the corridors of history in search of application.  To put the theory in its clearest form, the unitary executive is the President himself, who is at once both the only employee of the American people, and also the boss of every federal office holder outside of the Congress and the Judiciary.  The theory seemed most incarnate in the reign of those generals who seemed to be able to wield their authority with the same imperious might in the Oval Office as on the battlefield.  One thinks of Andrew Jackson and Teddy Roosevelt.

That was then, and now is now, when Mr. Trump’s executive leadership seems more like an exercise in herding cats.  Yet people with even a tad of historical lore under their skulls recognize that The Donald didn’t suddenly fumble the unitary executive to the horror of his fans and the delight of his detractors.  Common wisdom suggests that the unitary executive began to unravel, at the very latest, in the aftermath of the Watergate (1973) scandals.  Legislation which sought to limit the presidential imperium resulted in severe checks on arbitrary presidential power.  However these reforms failed to check arbitrary governmental power in general, or to stave off the multiplication of executive projects, expenditures and offices.  Rather, by setting up checks and balances within the executive branch of the federal government, they added to the executive bureaucracy.  And this went to the extent that the “special prosecutors” who were the plumb in the cake of the post-Watergate reforms threatened to become a “Fourth Branch” of trans-Constitutional governance.

Those who can see beyond the historical horizon of Watergate are more likely to see the first unraveling of the unitary executive in the New Deal, and the multiplication of those “alphabet agencies” such as the ICC, TVA, and NRA, each of whom were endowed with judicial as well as executive authority.  Yet an earlier starting point is the Progressive era, which saw the rise of the intellectual in the federal administration, a creature who was less likely to be constrained by, or even understood by, whatever folksy president inherited the legacy of those hybrid characters like Wilson who both studied and practiced administration.

Loyalty vs. Merit

However these movements were actually just footnotes to the unitary executive’s original fall from grace, which coincided with the rise of a merit based civil service.  It was the Pendelton Act of 1878 which consolidated the system of permanently employed government service.  After that there was little reason to think that officers would be loyal to a politician who’s term of office was likely to be far shorter than the duration of their career.   Like all sea changes in the policy of the republic, the effect of this reform was not immediately apparent.  After all, presidents in the late 19th century were just expected to be “weak.”  Think Grover Cleveland.

Today, because we read history from public school textbooks, the pre-reform civil service gets a bad press.  Typically it is referred to as the “spoils system” which conjures up images (not entirely unsubstantiated) of bribery and largess.  However there is another side to this issue.  We should at least try to be “Mugwumps” that fanciful word for a person who was willing to consider the merits and demerits of a permanent civil service.  In the interests of fairness, I would like to exercise a bit of Mugwumpery and dub the temporary civil servant system the “Loyalty System.”  After all, the politically appointable (and removable) civil servant would at least have no vested interest sabotaging the chief executive who, unlike him or herself, was directly chosen through the electoral mechanisms of the Republic.

In certain moods our progressives and our conservatives might even agree that disloyalty is a bad thing and moreover presidents should at least have the chance to formulate policy on their own turf before being challenged by either the courts or the legislature.  However there is a libertarian remnant which stubbornly insists that a strong president is a bad president, and indeed that a strong administration is nothing more than a step along the primrose path to empire.

However, as illogical as it may seem, the presidency became “weak” before it became imperial.  After WWI and as the 20th century wore on, there was need to have an emperor to complement the existence of an empire.  However the discipline of the bureaucracy which manifested itself at this time was not due to the charismatic appeal of those politicians who became, willy-nilly, chief magistrates of the republic.  Rather, it was due to the professional association of those who had a vested interest in the expansion of state power, both internationally and domestically.  Presidential orders were obeyed because presidents of whatever party were (to a greater or lesser extent)  aligned with the expansion of a robust administrative state. In 1952 Sen. Taft of Ohio lost the Republican nomination against General Dwight Eisenhower.  Taft was the last mainstream presidential candidate to seriously challenge the operational premise of expanding state power.  Barry Goldwater and Ron Paul would later mount doomed, albeit educational, campaigns dedicated to challenging that same premise.

Then in 2016 Donald Trump was elected after campaigning on many of the same anti-statist planks that animated Taft, Goldwater, Paul and (very inconsistently) Reagan.  Trump had the good sense to mix his contrarian rhetoric with a dash of jingoist appeal.  So far, the bureaucracy is in somewhat less than full scale revolt.  But only a very naive observer would be surprised that the doctrine of the unitary executive has been utterly abrogated.

The not-so-deep-state and the demise of the unitary executive

Today when “deep state” has become a household expression, it is easy to substitute James Bond intrigue for fundamental political analysis.  No doubt there is a great deal of skulduggery going on in high places these days, but the unitary executive would have floundered without any alienation between the Oval Office and the intelligence services.  It is not just the Praetorian Guard who are in revolt, but the clerks…and there are a lot of clerks.  It is not just a cabal, but the system, a system in which managers are independent of elected policy-makers.  In the EU this system appears in its most naked form.  In the US it still has to make end runs around the remains of a Constitutional Republic.

As Richard Weaver said, “Ideas have consequences!”  One of the great, pure, ideas of the 19th century was civil service reform.  However in creating a permanent state independent of politics, civil service reform ensured that all future reforms would be bound inside the parameters of the managerial state.  The owl of Minerva takes flight at night, and only now do we see the luster of those single-minded individuals whom the progressives have been eager to denounce as dictators-in-waiting.  The aristocratic Washington, the Jacobin Jefferson, mean old Andy Jackson, the imperious Polk and (though they were already compromised by the permanent state) later figures such as Lincoln and Teddy Roosevelt.

Finally, we can at last see the wisdom of the Founders in endowing one third of the federal government with a vestige of monarchy.  At very worst a monarchy, but never, ever, an empire, since a strong individual, unencumbered by bureaucracy and backed by the people, might indeed succeed in ruling the daily affairs of one nation…but then it would be bedtime.

 

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