"You're Fired!" By Barry Blitt
"If the President does it, that makes it legal."
"I have an Article II, where I have the right to do whatever I want as president."
"He who saves his country violates no law."
That first sentence is a remark by Richard Nixon in an interview with David Frost in 1977. This was three years after Nixon had been forced to resign to avoid impeachment for crimes associated with the Watergate break-in. Nixon went on to explain to Frost that "in war time, a President does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution." I have written about this as an example of a president claiming the executive prerogative powers of a dictator (Arnhart 2016: 254-262).
The next two sentences are from Donald Trump. That's what Trump says when he is accused of illegal actions in exercising presidential power.
The third sentence has been attributed to the French Emperor Napoleon Bonaparte, and it suggests the idea that in a time of national emergency or war, the national leader must have absolute power to do whatever he thinks is necessary to save the country.
In the second sentence, Trump is referring to the "unitary executive theory," which says that Article II of the Constitution gives the President complete power over the Executive Branch, and therefore any congressional legislation regulating or limiting that executive power of the President is unconstitutional. So, for example, the President may rightly disregard any congressional laws that set up independent agencies outside of presidential authority or laws restricting the president's power to remove employees within the executive branch. This theory is what justifies everything that Trump and Elon Musk have been doing to take control of the federal government, even though much of this violates federal law.
The unitary executive theory is based largely on an interpretation of the first sentence of Article II: "The executive Power shall be vested in a President of the United States of America." The claim is that this sentence vests all of the executive power solely and exclusively in the President. And, therefore, the Congress cannot deny or restrict the President's absolute power over the entire Executive Branch--all of the Federal administrative agencies and departments and all of the three million civilian employees and 1.3 million military employees.
Moreover, it is argued that this follows necessarily from the principle of the separation of powers. To prevent the tyranny that would come from one or a few people having too much concentrated power, the executive, legislative, and judicial powers must be strictly and completely separated. And that means that in the government of the United States, the Congress and the courts must never exercise any executive powers, which belong only to the President. Consequently, President Trump in the exercise of his executive powers can do whatever he wants.
It is also argued that the President has the authority to act as the one supreme leader of the government because he is the only person who has been elected by the American people in a national election to fill the Office of the President at the head of the government. This allows a popular demagogue like Trump to say he must be free to do whatever he wants to fulfill his mandate from the people.
It is likely that the U.S. Supreme Court will soon have to decide whether this unitary executive theory as expansively interpreted by Trump is correct.
There are at least three reasons for thinking that the Supreme Court should rule that the proponents of this theory are mistaken. First, their interpretation of Article II--and particularly, the vesting clause--violates the original meaning of the constitutional text. This is remarkable since the advocates of this theory claim to be constitutional originalists who look for the clear meaning of the text as it was written by the constitutional framers in 1787 and ratified in 1789.
Second, the proponents of this theory fail to see that the principle of separation of powers with checks and balances does not dictate a complete separation of powers because securing a balanced government requires some partial mixing of those powers, and this was understood by the constitutional framers.
Third, the proponents of this theory do not grasp how the balancing of powers through a partial mixing of those powers is the only way to prevent a demagogic president like Trump from becoming a tyrant. The Founders saw this threat to liberty from a Caesaristic demagogue like Trump when they warned "that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying obsequious court to the people; commencing demagogues, and ending tyrants" (The Federalist, number 1).
In explaining these three points, I will show how the need for the balancing of powers in government to check the tyrannical propensities of ambitious demagogues is rooted in the evolutionary history of the human beings. I will move through three levels of biopolitical history: the natural history of the "chimpanzee politics" of dominance hierarchies, the cultural history of using a constitutional balance of powers to steer the ambitious striving for dominance away from tyranny, and the biographical history of ambitious individuals looking for ways to satisfy their desire for dominance (Arnhart 2009; 2012). (I will link to previous posts that elaborate some of these ideas.)
We should see that there is a complex co-evolutionary interaction between these three levels of evolutionary history. Natural history enables and constrains, but does not determine, cultural history. Natural history and cultural history jointly enable and constrain, but do not determine, biographical history. Shaped by their social and personal history, individual political actors must decide how best to satisfy their peculiar ambition for political power within the contingent circumstances that they face.
NATURAL HISTORY
Human politics is rooted in an evolutionary history of power-seeking and rivalry for dominance shared with other primates--monkeys and apes. Frans de Waal found that Niccolo Machiavelli's Prince was the one book that most helped him understand the complex political life of chimpanzees. Machiavelli analyzed politics as competition for power and glory organized around three orders of human beings--the "prince," who is number one, the "great ones," who are high-ranking individuals with ambition to rule; and the "people," who are the majority of individuals in a society with no ambition to rule, but who do not want to be oppressed by the "prince" or the "great ones."
Just as Machiavelli saw a balance of power as the fundamental mechanism for maintaining a stable political order that would not be despotic, de Waal saw a similar mechanism at work among chimpanzees. Noticing how the alpha male often had to rely on the support of an ally to keep challengers down, de Waal explained this as a "balance of power: the superiority of one party over another depends on the support of a third, so that each party affects the position of the others."
Although every human society shows an order of dominance, a well-balanced society can achieve egalitarian dominance rather than despotic dominance. De Waal observed that rhesus monkeys manifest despotic dominance, because a dominant rhesus monkey instills unremitting fear in subordinates. But among chimpanzees, the dominant chimp often acts to protect subordinates, and if he becomes a bully, he can provoke an alliance of subordinates to throw him out of power. Something similar seems to happen in egalitarian human communities.
Among human hunter-gatherers, the few people who are ambitious to rule can become leaders; but leaders who become too proud are attacked with social ridicule, and in extreme cases, leaders can be deposed or even executed by their followers. Christopher Boehm argued that this supported an evolutionary political psychology of dominance, deference, and counter-dominance. A few human beings who are ambitious for dominance will fight with one another for the highest social ranking. Most human beings will defer to these dominant few. But if the few dominant ones become too oppressive in exploiting the multitude, the people will resist and perhaps even overthrow the dominant ones.
CULTURAL HISTORY
Beginning with the emergence of the first archaic states about 5,000 years ago, power became ever more centralized and concentrated in a bureaucratic state under a ruling class of priests and kings that was inclined to autocratic tyranny. When that despotic dominance became oppressive, it could provoke popular resistance and rebellion.
In this autocratic form of government, all power is concentrated in a few people or even one person with supreme sovereignty. By contrast, some societies have had a balanced form of government, in which power is divided between independent entities that check and counterbalance one another in a system of countervailance with no supreme sovereignty.
The predominance of these two principles of government--sovereignty versus countervailance--in the cultural history of governments over the past 5,000 years suggests that despite the great diversity in the forms of government, these two principles identify the two basic models of social organization. According to the model of sovereignty, the authority to command is hierarchically structured with the supreme power at the top. According to the model of countervailance, the authority to command is distributed across a network of independent powers--so that power controls power--and there is no supreme power.
Scott Gordon--in Controlling the State: Constitutionalism from Ancient Athens to Today--has sketched the cultural history of these two models from Athenian Democracy and the Roman Republic to American constitutionalism and modern Britain. He coined the word "countervailance" to denote the counterbalancing of powers in a social system. Although the Oxford English Dictionary does not recognize the word "countervailance," it does recognize "countervailing" as a noun, a verb, and an adjective.
Gordon's two models correspond roughly to what David Stasavage calls "autocracy" and "democracy."
The Balanced Republic of the Founders
The American Founders clearly chose the model of countervailance, although they identified this not as a pure "democracy," but as a "republic" with a balance of powers. As early as 1775, when the revolutionaries were first discussing what the new American constitutionalism should look like, John Adams proposed:
The Course of Events, naturally turns the Thoughts of Gentlemen to the Subjects of Legislation and Jurisprudence, and it is a curious Problem what Form of Government, is most readily and easily adopted by a Colony, upon a Sudden Emergency. Nature and Experience have already pointed out the Solution of this Problem, in the Choice of Conventions and Committees of safety. Nothing is wanting in Addition to these to make a compleat Government, but the Appointment of Magistrates for the due Administration of Justice.
Taking Nature and Experience for my Guide I have made the following Sketch, which may be varied in any one particular an infinite Number of Ways, So as to accommodate it to the different, Genius, Temper, Principles and even Prejudices of different People.
A Legislative, an Executive and a judicial Power, comprehend the whole of what is meant and understood by Government. It is by balancing each of these Powers against the other two, that the Effort in human Nature towards Tyranny, can alone be checked and restrained and any degree of Freedom preserved in the Constitution (Letter to Richard Henry Lee, November 15, 1775).
What Adams calls "Nature and Experience" is what I call natural history and cultural history. The natural evolutionary history of the human species explains "the Effort in human Nature towards Tyranny," and the cultural history of balancing the three powers of government shows us how to check and restrain that natural tendency to tyranny and preserve freedom from tyranny. But then at the individual level of history, Adams recognizes that his sketch for a constitution, which he elaborated in his Thoughts on Government in 1776, will have to be accommodated "to the different, Genius, Temper, Principles and even Prejudices of different People" in constitutional and ratifying conventions.
Adams and the other Founders generally agreed on a form of government that would balance the three powers--legislative, executive, and judicial--so that "ambition must be made to counteract ambition," and none of the three powers could become tyrannical (Federalist, number 51). But they were unsure of how the presidency should be designed to fit into this scheme of balanced government. At the Constitutional Convention of 1787, Alexander Hamilton proposed a presidency that looked like an elective monarchy. But others wanted the president to be constrained by an executive council of people because they feared giving all the presidential powers to one person.
Once they agreed to give the presidential powers to one person, they worried about how he would be selected. They did not want a national popular election of the president because they feared that the people would choose a popular demagogue who would lead a party faction contrary to the public good.
They devised a complicated indirect system of selection through the Electoral College. They were confident that "the process of election affords a moral certainty that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications," that the "talents for low intrigue, and the little arts of popularity" would not elevate a man to the presidency, and that "there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue" (Federalist, number 68).
This was a mistake, perhaps the single biggest mistake in the Constitution. Within the first ten years of the government, the selection of the president came under the control of two intensely partisan political parties. And within fifty years, most of the state legislatures had handed over the selection of presidential electors to popular vote.
Republican Remedies for Presidential Democracy
From the beginning, presidents persistently claimed presidential control of the executive branch, which would support the idea of a unitary executive at the head of a presidential government (Calabresi and Yoo 2008). But beginning in the 19th century, the cultural history of the American state shows the emergence of various extraconstitutional contrivances for constraining presidentialism in favor of republican balancing, which Skowronek, Dearborn, and King (2021) have called "republican remedies" for presidential democracy.
For example, early in the 19th century, Congress controlled presidential nominations: the congressional party selected the national candidates and then coordinated the local electors in supporting the candidates. By the middle of the 19th century, local party bosses controlled the nomination of candidates. And presidents were expected to hand out jobs in the executive branch to all the factions of their party.
By the turn of the 20th century, Progressive reformers attacked this control of the executive branch by the spoils system. They set out to render executive administration nonpartisan by providing civil service protections for the government workforce and by establishing various independent regulatory commissions that were largely insulated from presidential control.
To be continued . . .
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