The presidency is a distraction from the real work of ousting the permanent bureaucratic regime. In December of 1932, there was an exchange by telegram between President Hoover and President-Elect Roosevelt. The telegraph from Hoover reads as you would imagine: the words of a broken and defeated man, who’s pleading with Roosevelt to recognize some fragile accomplishments in his waning days as president. Hoover was concerned about two upcoming global conferences, one on commercial debt relief and one on disarmament, and Hoover had been engaged in a protracted negotiation with Congress about who would actually represent the United States at these conferences, and what the policy of the United States would be at them. Roosevelt’s reply to this long and verbose telegram from Hoover reads like a contemporary presidential memo. It’s essentially five bullet points. The main takeaway? “I’m not president until March 4th, but when I am, I will not be bound in any meaningful way by any actions taken by any of my predecessors.”
Hoover sends another telegram. This one sounds a lot like the stuff you hear from the folks in New York, the U.N., or in Geneva right now, when they’re writing to the Russian government. I’m paraphrasing, but Hoover essentially says to Roosevelt: “You don’t really seem to understand what I’m saying, Franklin. There’s the rule of law. There’s the separation of authorities between Congress and the presidency, and then there are international partners who we respect and have prioritized these conferences.” And Roosevelt replies, “If I’m obligated at all to seek the judgment or input from any authorities beyond my office, it will come from my own deputies.” And in this, you see the makings of Roosevelt’s first inaugural address, given just a couple of months later: raw political power exercised by the chief executive. It’s an interesting exchange, particularly for those captivated with the transition between presidencies. But for conservatives this correspondence marks the beginning of a fascination—an obsessive preoccupation with executive power, and the Roosevelt Presidency. Ninety years from Bob Taft to Donald Trump, and we have pathetically tried to wield the same authority and the same power, though, of course, in an effort to reverse Roosevelt’s administrative state. But despite all of our trying, we really have very little to show for it.
Here, then, is yet another lie the regime tells to conservatives: presidential elections matter. The shorthand version is essentially, “If you just get the right guy in there, if you just have that one man who can give voice to your priorities and impose his will on the bureaucracy, social decline will be arrested, social precarity will be reversed, and all will be well in Mayberry.” But it’s not true. And the purpose of this lie is to mute and to deflect the citizenry’s contempt, their hatred for the ruling elite.
This lie—that presidential elections matter—is composed of at least three subsidiary or supporting lies, and the first is the Unitary Executive Theory of power.
There have been several generations of conservative legal scholars—think Nixon, Ford, Reagan, and Bush veterans—who have told us that the Article Two powers that belong to the chief executive are immense and when exercised prudently, can do real good. The conservative legal movement exposed this subsidiary lie in Selia Law LLC v. Consumer Financial Protection Bureau (2020), when the Court ruled that the president can indeed fire incompetent, inefficient, or political actors in his own administration. And the conservatives on the court, constructing a complex algorithm said, “Yeah, he can. Except, there’s a difference between agencies and departments headed by a single individual and those that are multi-member, and it depends on whether or not it’s for cause, and it depends on whether or not the president has given ample justifications and reasons for the removal itself.”
It’s the sort of tortured explanation I’ll get, and the same kind of permission, when I ask my wife if I can go to the bar. “It depends who you’re going with, where you’re going, what time you plan to be back.” So much for this vast, expansive authority to fire.
But defenders of the unitary executive will argue that I’ve overlooked an essential element of presidential power: the president’s incredible authorities in statecraft and war making. That’s where his powers really manifest, they say. And yet most modern presidents pursued overseas adventurism under Congressional Authorizations for Use of Military Force (AUMFs). It’s kind of a moot question for the Bush veterans to talk about their expansive war-making authorities when they still went, hat in hand, to ask Congress to bless their use of force. Put the claim to the test: in just the last few years, when the president sought to repel foreign nationals from coming into the United States at our own borders, he was told by the collective intelligentsia at the Department of Defense, and all those gentlemen with the big epaulets and lots of medals, that the power to repel foreign nationals is not actually a power the president possesses—whatever implied authorities come with being Commander in Chief, they don’t even extend to protecting the nation’s borders.
How about the second subsidiary lie? We hear this one so often from the constellation of conservative think tanks, from our activists in the electoral realm, the consultant class, and the remnant of conservative academics: there’s always the possibility of a positive conservative governing agenda. Always a possibility. I think the falsehood of this lie is apparent in the way conservative candidates campaign for the presidency and in the way in they govern. Conservative candidates, when they run for office, talk about shuttering the Department of Energy, shrinking the size of the federal workforce, and closing or reorganizing subsidiary departments or agencies at the federal level. The reality? We get the EPA, Department of Homeland Security, we get amnesties, and we get these ever-expanding omnibus spending sprees and bloated budgets that are defended, usually by conservative lawyers, working in conservative presidential administrations, as a defense of presidential prerogative. “Sign the omnibus, sir, because otherwise, Congress will have taken your number, and there’s a lot of priorities in here that you will lose control of.”
Even in that sense, when the president is ensconced to the Oval Office, we like to think of it as, essentially, the Shogun ruling by fiat in Tokyo. The reality is more like Robinson Crusoe on his desert island. The president is isolated, cut off. The only data and information presented to him is what the regime wants him to see. The president has no governing expertise in particular, regardless of what he did in prior service or prior life. If the president wants to address housing shortages, he has to call in HUD. If he wants to understand why the US attorney’s office has reached X, Y, or Z outcome in the District of Utah, he has to call DOJ. And what’s revealed or what’s discussed is what the regime wants discussed or revealed to the president in those meetings.
The same is true even when the president goes to interact with everyday common citizens. Washington wrote to John Adams that the ritual service as “head” of State was essentially the highest priority of the office, so that the President can poll and informally conduct a survey of what the American people think of their regime and embody the nation’s highest principles. But today even that process is managed by the bureaucracy and the administrative state. No one gets within arm’s reach of the president who hasn’t been vetted. Any transgressions in one’s past means you’re immediately weeded out. Even discussions with everyday Americans are choreographed and fabricated.
The other obstacle to imposing the positive conservative governing agenda is the vast assemblage of dilatory tactics that the bureaucracy uses against the President. The bureaucracy essentially knows how much time is on the shot clock and what opportunities the president has to run his offense. Usually, a president isn’t so keenly aware of that. So there’s a policy session, and the president says, “This is a priority.” Then the bureaucracy comes back and says, “Ah, but you know, there was that thing under Jerry Ford about employing Americans. Have you looked into that?” Months later, when the policy meeting is convened again, they say, “Okay, that’s a good answer. Jerry Ford. We were wrong on that. But how about that thing that Jimmy Carter did? Have you guys looked into that?” And now it’s a year, or a year and a half, later, and whether it’s a regulatory product or the formation of an executive order, it’s been delayed. Obscure legal arguments work, and so does the withholding of vital information. Whether it’s statistics of those who are crossing the border, or statistics about communicable disease transmission in New York or Los Angeles—that information may be vital to informing the president so he can address the American people with authority. But it is this granular expertise, raw information, that the bureaucracy alone possesses and they can withhold, interminably delay, or in many instances, present in duplicitous ways.
And then that’s to say nothing of the president’s own cabinet. Here’s an example that’s sort of current, with the 24-hour news cycle: I was President Trump’s point person on school safety and school violence following the Parkland shooting. And you would think that this was, as you know, akin to preparing for the invasion of Okinawa. We got all of the cabinet together, all of their deputy heads. It was months and months and months of work. And when we came to the essence of the president’s policy requests for the final document, members of the President’s Cabinet, said—no joke, “That may be the president’s priority, but I’m not going to have my people sign-off on that.” I think that really summarizes our current regime. The “elected” chief executive may request, but the functionary representatives of the bureaucracy decide.
Government by the ’Gram
The third thing that conservatives often cling to—and this is the third subsidiary lie—is the reach of the Presidency’s ceremonial power. The presidential soap box. Maybe the president cannot effectuate an actual governing agenda, but he sets the tone and the style for the country. And in amplifying certain themes, he gets Americans to think, at least rhetorically, about what is and is not important. Again, I think this is one of these areas where we think we’re governed by Prospero on the island, and he can summon the spirits and beasts, and it’s really more like Duncan in Scotland. He’s weak, he’s enfeebled, most of the things he’s done happened a long time ago, and there’s a lot of people trying to kill him.
The ceremonial trappings of the presidency are part of its major defects. The amount of time and resources and money that are expended in creating the choreography of statecraft would boggle the mind. I would argue that the second most important office in the presidency, behind the Communications Department, isn’t the National Security Council. It’s not the Council of Economic Advisors. It’s the Office of Advance aides. It’s the legion of young 20-somethings and their advisors who were social planners and event planners in a previous life, who stage the trappings of the ceremonial office around the country.
And yet the modern presidency is so wholly dependent on celebrity to amplify its message. When important right-leaning political figures visited the Trump White House, it was interesting for a few people, especially those people who follow British politics or Viktor Orban. But when Kim Kardashian visited the White House, everyone took note, from senior advisors down to lowly clerical staff, because Kim Kardashian has the power to amplify the message of the presidency. “If we could just get her to tweet, just one thing, the message would take hold. It would go viral,” they would say.
I anticipate a possible rejoinder, which is that we are on the cusp of the success of our conservative movement, of recreating the Roosevelt presidency but for our policy priorities. That it’s taken five decades, and now here we stand, at the precipice, of reversing Roe v. Wade, a grave evil and a tremendous injustice. And that might be right. We got 16 of the last 21 appointments to the Supreme Court. Because of the advantage, most of our federal legislators have been able to punt on the life issue, either in part or in whole, as something belonging to judges. But our success in advancing conservative judges has amplified the reality that if it’s not the deep state that governs us, then at least, for all practical purposes, it’s the judges. We’re governed by judges, in an Old Testament kind of way.
If President Trump had any lasting durable legacy for conservatives, many would say, it’s the appointment of three justices to the Supreme Court. I would be willing to recognize that, in part. But here’s where I would direct your attention. The hopeful note, I think, is that if the final Dobbs opinion holds to the framework set out in the leaked draft, then Dobbs will return the energy and the emphasis—the vitality of the conservative movement—to where it has long been missing: to state legislatures and state Supreme Courts around the country. That’s a good thing. But it brings me back to the purpose behind the fundamental lie of the regime that I’ve been discussing today: that presidential elections matter. As I said at the outset, the purpose of that lie is to distract the citizenry from the illegitimacy of the regime. So forget that our federal bureaucracy is inefficient, full of incompetence, and increasingly woke. The deeper problem is that it is illegitimate. Regardless of who is elected to the presidency, things do not change here in D.C. The ruling class is permanent and fixed. Perhaps President Trump’s greatest accomplishment was the appointment of three justices. If so, the greatest accomplishment of the age will belong, not to Article II but to Article III: returning one small (though important) sliver of power back to the states. And maybe there is hope in that. That in returning decisions as significant as those that determine the fate of the unborn to the states, maybe we will see a resuscitation of the contempt, the hatred, the anger that’s necessary to bring about true regime change and transformation in this country.
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