After Trump: Reining in the ‘imperial’ presidency

As president, Donald Trump took an expansive view of his executive power. He demanded loyalty of administrators. And when professionals in the federal bureaucracy appeared to defy his wishes, Trump and his allies accused “the deep state” of undermining his administration.

“Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive” (Oxford University Press), a new book coauthored by Yale political scientists Stephen Skowronek and John Dearborn, with Desmond King of the University of Oxford, examines the conflict between presidents determined to harness all executive authority and federal institutions that were created to promote shared interests through deliberation and expertise.

Skowronek, the Pelatiah Perit Professor of Political Science in the Faculty of Arts and Sciences, and Dearborn, a postdoctoral associate in the Center for the Study of Representative Institutions and the Policy Lab, recently spoke to YaleNews about their book. The interview has been edited and condensed.  

Why did you decide to write this book?

Stephen Skowronek: We were impressed, on the one hand, by how many people seem to view the Trump presidency as an aberration. On the other hand, we were impressed by the blithe dismissal of the idea of “the deep state,” not because we bought into Trump’s critique of the deep state, but because we thought that the American state does have a lot of depth to it, and we shouldn’t just dismiss that concept out of hand. We thought that Trump’s attempt to pit his executive authority against executive branch officials provided an important commentary on the state of American government.

John Dearborn: Scholars often had the same instinct, as Steve said, to treat Trump as abnormal and a great departure from presidential history. We approached the Trump administration as the culmination of long-running trends in the presidency and the executive branch, such as presidents bearing down on administrators to execute partisan agendas. Trump’s instinct to do that didn’t emerge out of thin air.

What is “the deep state?”

Skowronek: The term originally referred to governments where the military would monitor the political leadership and place conditions on its control. Examples were Turkey and Egypt, where the military was a controlling force behind the scenes. When Trump invoked the deep state, he had something broader in mind. He was suggesting that there were cadres of administrators throughout the executive branch who threatened his authority. And by threatening his authority, they were threatening the will of the people who had elected him.

In Trump’s view, the deep state was not just this entrenched officialdom within the executive branch resisting the president’s lawful authority. It was also their support networks in the media and various interest groups. I’d add that “depth,” as a concept, refers to the layers of insulation that protect administrators from the arbitrary use of executive authority and that promote knowledge-based decisions.

Governments rely on depth to instill competence, constancy, confidence, knowledge, and skill in administration. But bureaucrats have interests of their own and resources with which to act on them. That is another embedded feature of the state that the Trump years have forced us to think about.

Didn’t Trump use accusations about the deep state to deflect criticism?

Skowronek: He did use the deep state as a scapegoat, but that’s not the whole story. Trump was an insurgent candidate who came to power with a radical critique of government as corrupt and out of step. That populist stance fed this deep state critique. It drew a lot on the ideology of the conservative insurgency, at least since the Reagan Revolution, which views the government and bureaucracy as the problem.

Dearborn: Trump was a novice to government, which manifested itself in various ways, but I think the popular portrayal of him as amateurish is mistaken. Trump and his aides in the executive branch were very focused on their mission to seize control of the executive bureaucracy. He wasn’t ineffective in that regard. For example, he succeeded in getting consequential rule changes through the Environmental Protection Agency [EPA]. More generally, he engaged in a protracted campaign to weaken civil service protections for career administrators. Over time, he installed political overseers, such as Attorney General William Barr, who were loyal to him and embraced his view of presidential power.

Skowronek: It’s worth noting that just before William Barr was nominated as attorney general, he wrote a note to Trump telling him that the president alone is the executive branch. That has serious implications for public administration and the wielding of executive power.

What is the theory of the unitary executive?

Dearborn: It’s based on the first sentence of Article II of the Constitution, which says “The executive Power shall be vested in a President of the United States of America.” A unitarian argues that this means the president possesses the entirety of the executive power. That’s what Bill Barr means when he says the president alone is the executive branch. He’s saying that administrators, cabinet secretaries, and other officials are exercising power at the sufferance of the president. A different, more republican, conception of government would say that Congress can lodge executive authority in different officials and that administrators have some authority of their own.

Skowronek: I would just note that Article II also lays out a process for selecting the president. The point of that original selection procedure was to ensure that the person wielding executive power would not be a political partisan. Later developments have pushed far away from that initial arrangement, and that has made the executive branch susceptible to abuse as an extension of the president’s partisan interests. Combining the current procedure for electing the president with the unitarians’ strong reading of the vesting clause produces exactly what the framers were trying to avoid.

How did the notion of the deep state and theory of the unitary executive merge under Trump?

Skowronek: Previously, the unitary executive was a constitutional claim discussed mainly in legal circles. When Trump connected it to the deep state, he gave the claim a political edge. The deep state embodied resistance to the will of the president, a representative of the people who elected him. By conjuring this shadow government, the charge of a deep state conspiracy turned claims on behalf of a unitary executive into a defense of democracy.

That had profound consequences because suddenly this populist, charismatic claim about presidential power was backed by a constitutional theory. The last thing that the Constitution endorses is populism and charismatic leadership, and yet, when you make this connection, all of a sudden you have a constitutional anchor for a broadside assault on the executive branch in the name of the people. When “the Resistance” called this an assault on the rule of law, the response was that elections have consequences, so get over it.

This was Trump’s unique contribution to the unitary executive idea. The disruptive force of his juxtaposition of the deep state with the unitary executive was displayed in headlines every day. Trump’s presidency was a constant tumult and struggle as if turning the government inside out.

Biden has pledged to restore many of the norms Trump threatened. Does that solve the problem?

Skowronek: Obviously, President Biden has a very different approach than Trump. In large part, I think Biden’s approach is a reaction to Trumpism. He promises to respect the independence of the Justice Department. He promises to respect the scientists at the EPA. He promises to lead with the science in responding to the pandemic. But when you think about it, that approach is every bit as personal as Trump’s approach. I’m all for Biden’s respect for knowledge-based authority, but if we rely solely on him for protection from Trumpism, we’re leaving ourselves vulnerable to the next president who claims to embody all of the executive power. We need an institutional solution.  

What institutional reforms are needed?

Dearborn: The starting point is to surround the presidency with institutions that help it serve a broader purpose. One of the basic points of the book is that throughout our history, Congress has established ways to enlist the presidency, among other institutions, in the service of good government. It has taken steps to ensure that presidents serve the public interest.

In the early 20th century, it enacted laws that made the president responsible for agenda-setting, including proposing a budget to Congress each year. But in doing so, Congress created agencies in and around the executive branch with professional standing and expertise, such as the Bureau of the Budget, which is today the Office of Management and Budget. It also took action that fused the interests of the executive, legislative, and judicial branches in independent agencies, such as the Securities and Exchange Commission. These actions were meant to help ensure that the president’s policy agenda was supported by expertise and informed deliberation.

What stands in the way of reform?

Skowronek: Rigid thinking about the separation of powers is a major obstacle to reclaiming this institutional creativity. In reshaping the federal judiciary, Trump appointed a lot of judges who support a unitary executive, including multiple Supreme Court justices. This definitely makes institutional reform harder to achieve.

Dearborn: Article I of the Constitution gives Congress the ability to decide what’s necessary and proper for the design of government. It gives Congress a central role in reorganizing the institutions of government, including the presidency. It has the ability to relax the separation of powers and to join the president and Congress in more collaborative enterprises. Our argument is not that Congress should compete more fiercely with the presidency. Rather, it’s that Congress should try to enlist the presidency more effectively as a partner in governance.