The Supernumerary Executive

Published January 4, 2018

National Review Online

Conservatives who think about constitutional and legal issues, the administrative state, and the executive branch have argued for many years now for the importance of the so-called “unitary executive” model of the presidency.

The idea is straightforward, and rooted in the first sentence of Article II of the Constitution (“The executive power shall be vested in a President of the United States of America”) and in the responsibility given to the president in Article II, Section 4, to “take care that the laws be faithfully executed.”

The president is personally vested with the executive power and personally charged with the obligation to execute the laws. This means the president is responsible for the executive branch, and the various people who populate executive positions are just his agents, almost literally extensions of him. He has authority over them, and responsibility for their actions. This is essential to good, responsible, accountable government. And conservatives therefore tend to recoil from the notion that the broader executive branch has its own distinct prerogatives and exists apart from the president as a kind of administrative state onto itself.

But when you talk to senior officials in this administration about their work, and when you listen to the ways they talk about it with journalists and activists, it’s hard to avoid the conclusion that what we are seeing in the Trump era so far is the emergence of something like the inverse of the unitary executive.

Today, the people who occupy executive-branch positions (in the White House and in other agencies) are all trying to administer the government as if there were a president in office directing their work in the ways presidents generally do, even as they know that isn’t quite the case. And when people raise concerns with them about something the president has said, they respond by offering calming assurances that there is a body of people governing precisely not as extensions of the president. They say “the system is working,” and they mean we have a functional administration most of the time despite what’s going on at the top and it is filled with good and capable people and achieving some significant things—which is true.

This isn’t a matter of liberal career officials governing despite the wishes of a more conservative executive. Some of that is happening of course, as it always does in Republican administrations. But now we also have various types of conservatives or other Right-leaning people offering such assurances: The national security team calms foreign and domestic worries by pointing to the layered infrastructure of decisionmaking they have tried to set up. Social and fiscal conservatives on the inside calm those on the outside by pointing to the work being done by various appointees. When the most populist and nationalist of Trump’s supporters become worried that he might be abandoning them to make deals with swamp dwellers they are reassured by like-minded people very close to the president that he will soon enough move on and let them work. These various calming voices are of course in some tension with one another, but they are in agreement that at this point what the administration does is not connected to what the president says in the usual way.

This doesn’t mean Trump’s pronouncements aren’t important or that he’s not setting the tone for his own administration. President Trump is not playing the usual role of the president, but he is playing a different role, and one that can obviously have great influence. And there is an administration beneath him working to perform something like the function an administration would usually perform under an American president. But once in a while—through Twitter or an interview—we get a glimpse of Trump himself that has the feel of a fleeting glance into the dark, swirling maw of a shrieking brute, angry and in pain, and kept out of view by careful machinations. And all concerns about this are assuaged by the argument that there is much more to the executive than just the president.

This is understandable and it may even be necessary, given the particular debilities and general unfitness of this president. But the idea that there is much more to the executive than the president is a form of a problem with the administrative state that conservatives normally, and rightly, worry about.

This is a worry that doesn’t fit the way many people want to worry about Trump. It’s very different from, nearly the opposite of, the concern that Trump is bringing on some kind of autocracy. But of course it also isn’t comfortable ground for most of Trump’s defenders, even though some of them know well the importance of the case for the unitary executive. Like the importance of character in leadership, this longstanding conservative concern is a subject many on the Right will probably feel is better avoided or dismissed while this particular president is in office. But as with the character question, it sure seems like there will be a price to pay in time.

Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center.

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