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Foreign.
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Hi, I'm Santa Ruiz and this is Statecred. We're back after a little bit of a hiatus between the last episode we recorded and now I had my second child and I also changed jobs. So after three years running the editorial team of the Institute for Progress or ifp, I'm now at Anthropic, the Frontier AI Lab, working on the editorial team here. Not to worry, Statecraft is continuing, although we will maybe record slightly fewer episodes a month. But I'm staying on IFP as a non resident Senior fellow. Statecraft will keep going as an IFP project. No big changes on the horizon for Statecraft, and in fact, on today's episode we're continuing a conversation about presidential power that we broached a couple weeks ago on Statecraft. Unfortunately for listeners, this was just an essay. I did not record it into the mic, so if you're interested, you'll have to read it at Statecraft Publishers. But the essay was called what Trump Can Learn From Nixon and it was about the attempts in Nixon's one and a half presidential terms to build what observers called the administrative presidency, a presidency that actually fully controlled the administrative state. My guests today have thought very deeply about presidential attempts to control the administrative state. William Howell and Terry Moe are co authors of a book called the Trajectory of Power the Rise of the Strongman Presidency. They're both political scientists. Terry Moe is a professor of Political Science at Stanford and senior Fellow at the Hoover Institution. Will Howell is the Dean of the School of Government and Policy at Johns Hopkins University. Will and Terry, welcome to Statecraft.
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Good to be with you Santi.
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Great to be with the two of you. As a reminder to listeners, the full annotated transcript for this episode is at www.statecraft.pub and I should give not one but two disclaimers here. So one is I'm currently affiliated as a journalist in residence with William Howell's School of Government Policy at Johns Hopkins. Will is the Dean and before I was under Will's thumb in that way I was.
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It's a thick and heavy thumb under
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the weight of Will Howell's regime. I was undergrad student in Will's Just the class is just called the American presidency at UChicago where you were for a very long time. Yeah, so one way or another, the shadow of Will Howell has loomed over my pre professional and professional career. But disclaimers aside, I'm very glad to talk to you two about this book, the Trajectory of Power. And I always hate when people try to come up with a really brilliant question about the book under discussion. Tell listeners what the book is about.
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The United States faces a dire threat to its democracy, and the tip of the spear is Donald Trump and a strongman presidency. You know, this is a presidency in which he governs aggressively and unilaterally and with little respect for democracy, for their traditions and norms of democracy, or for the rule of law. So the question is, how could this have happened here, you know, in the United States, of all places? You know, a place that has long been the beacon of democracy for the world and which has a constitution filled with checks and balances that were specifically designed to prevent exactly this kind of thing. So that is what our book is about. And more specifically, it's an effort to explain the trajectory of presidential power throughout American history, with special attention to the modern history of the United States, and to explain how it could be that presidential power has expanded during the recent period to the point that in the wrong hands, it's actually capable of bringing democracy down.
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It's a. A book, too, that in trying to make sense of how we got to this moment, looked back a fair ways, we track the rise of presidential power and the transformation of presidential power. Where our book really picks up steam is in the progressive period, when we're looking at the rise of the administrative state. And if you want to make sense of why we have the presidency today, we argue, you need to make sense of the extraordinary transformations in state building that relate to the rise of the administrative state that matter unto itself. It's a locus of all kinds of activity and power and personnel and authority, but also sets in motion a set of politics that an organization and strategizing that runs concurrent with what's going on within the administrative state that's trying to transform the presidency. So this is not a book that is simply offering a readout of all the things that Trump has done and then reading into the origin of those offenses, such as they are, insight into Trump's brain or his psyche or his ambition. This is really a story about state building. It's a story about transformations of parties, of the federal landscape. And it's something that plays out over many decades. And so the book is ambitious in its reach and is trying to stitch together a kind of comprehensive story about how we ended up here. And how we ended up here long precedes Trump dissent from the elevator in the summer of 2015, where he decides to run for. For the presidency.
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Some listeners will violently agree with your perspective on the danger Trump poses to democracy. Some listeners will not but just to clarify terms you guys say at the outset of the book, democracy is a fraught term. Here's what we mean by it. Will you just briefly articulate, I guess, how you guys are understanding democracy for the context of this book and what the nature of the threat is you think Trump poses?
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Sure, I'll say something. In some ways, our definition is really quite conventional. It certainly is one that recognizes the importance of free and fair elections, checks and balances. There are two dimensions that we also want to bring into view that are going to matter for our argument and that offer kind of a thicker understanding about what democracy is and what it requires. And one is the rule of law. It's hard to imagine a flourishing democracy without the rule of law. And so violations of the rule of law, and we'll get to the violations that we understand to be playing out through the strongman presidency, are themselves violations of democracy. That's an important piece. And another important piece is that you have institutions that can effectively govern, that can effectively translate the broad ambitions and intent that might be written into legislation into actual action. Democracies are not just debating societies that represent views. They also attend to wishes and wants expressed by a polity. And their ability to attend to them critically depends upon well functioning governing institutions. And so when you lay siege to such institutions, you imperil democracy itself.
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On that account, just to make sure I have it clear, because, and as, as you know, Will, we've been very interested here on statecraft, in well functioning institutions that deliver on commitments that they make. But I've never kind of combined that, in my view of democracy is a. Is a democracy that has lower state capacity less of a democracy?
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Yes, in the following way. There are a number of ways. But let me, let me identify one important one. If you have a government that is routinely incapable of solving public problems and problems that the public wants to see solved, you are vulnerable to the entreaties of a demagogue who will step in and say, the state has failed you, the parties have failed you, these baldy democratic institutions have failed you. I will not, I will be the one that delivers for you. And so there's a kind of vulnerability, a kind of precarity to persistent failure that opens up space for a populist strongman to step in. This was the dominant theme of the second book that Terry and I wrote, President's Populism and the Crisis of Democracy, wherein we, we talk about how ineffective government is, government that is vulnerable to the entreaties of, of a populist strongman that will challenge democracy, but in importantly important ways will transgress it.
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You know, a core point that needs to be made here is that you can have the most democratic policy making you can imagine. But if those policies aren't translated into action by the administrative state, because that's where it happens, then they're not worth the paper they're written on. They're just pieces of paper. Right. And so if a democracy is going to be meaningful, it has to have both. It has to have a democratic policy making process, and it has to have an administrative structure, an administrative state that can carry out those policies and make them real. And so if you have a government that is tearing down the administrative state and undermining its capacity for effectiveness, you are undermining the meaning and effectiveness of democracy.
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Two threads I want to come back to here. I'm going to, I'm going to put a pin in both of them. One is one thing I hear you both saying is a democracy can be more vulnerable if its state capacity is weak. And there are ways in which that democracy is less of a democracy for being able to implement the will of the voters, whether or not a strong man takes control of the reins of power. That's one, I think thread. And then the other thread that I want to come back to in a second is how healthy you guys thought the administrative State was in 2015 on the day Trump descended the golden elevator. But I'll put a pin in that. You guys spent a good bit of time in this book talking about the history of the presidency. And I'd love to hear your gloss on what was the power of the presidency like before the Progressive era. So before we build the administrative apparatus of the state, you talk about, how should we picture the powers of the president in that period?
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Well, to a large extent, where you had congressional government, you know, the parties were extremely strong. Basically from Andrew Jackson on, it's a classic dividing point. And the party's party machines were powerful at all levels of government. Politicians were captives of the party machines, products of those machines. And presidents weren't above all that. Right. And presidents were products of that system. And it was also a system that had almost no executive branch. And so the idea that, you know, the president would ride herd over all these agencies that had all these programs and all these experts and resources and authority and all that stuff that presidents could use to gain power, those things weren't there.
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Say a little more on that. What was not in existence in this period?
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Well, all of the agencies that you associate with the administrative state weren't there, basically, except for the post office. You know, you want things like that. That was about it, you know. And most of the employees of the federal government were mail men.
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The majority.
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Yeah. So the federal government wasn't doing. Wasn't doing all that much. And it wasn't until there was this massive social upheaval at the end of the 1800s. Industrialization, urbanization, immigration. Right. That really transformed American society, disrupted it and led to all these demands for a government that actually worked, that would do something because all sorts of problems were being generated by an industrialized society, and people wanted solutions, you know, and so how could you get that? You needed to have corporations, quote, good government. How could you get that? Okay. That's where the progressive movement came from. And it was an effort to create a positive government that would actually be built to address these pressing social problems of the time. And that's how we got the modern presidency, a presidency that was much more powerful than in the past. Teddy Roosevelt, Right. Is the classic progressive president. Ben. Woodrow Wilson and Congress had been a cesspool of interest group influence and corruption. And what they wanted was a bureaucracy that could actually carry out policies, be staffed with experts. Right. And behave in a nonpartisan way to, like, do the scientifically objective thing and administer policy. Well, some of this was sort of idealized, but the fact is, that's what modern government is about. It's about having an administrative state that is filled with experts hired on the basis of merit who are capable of carrying out public policies and being led by a president who has actual power, not all power, but more power than in the past.
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Let me lean into two pieces of what Terry just said to connect the emergence of a modern administrative state you see in the progressive period and then carrying forward into the New Deal this proliferation of agencies and bureaus and departments with all kinds of capacity and authority and expertise and personnel. There's a direct way in which that expands presidential power because suddenly the presidency, the president's midst, has access to capacity, can actually leverage something. When you look at the ambition that sits behind a law that's enacted, well, what's to come of it now we might actually be able to do something that from word go, this administrative state is sitting within the second branch, and the president sits atop it. Okay, expansion of presidential power. There's this additional piece too, which we unpack in the book, which is that presidents can't count on bureaucrats to do their bidding. There's a concern about control. Just because you have this expertise that sits within these administrative agencies. How do you know that they're going to do the things that the President wants? Well, it turns out for a long period of time in the modern era, from roughly FDR through you, bring it up even into Reagan, you see efforts by subsequent presidents from both parties to build out various instruments of control and strategies that will increase the odds that decisions that are made and actions that are taken within all of those far flung agencies and bureaus and whatnot are aligned with the interests of the President. So it's a one, two, right? The rise administrative state, or all kinds of capacity in the President's midst, and then successive efforts by presidents of both parties to build out instruments of control lead to fashion a much more powerful presidency than the one that we saw in the ones that we saw in the 19th century.
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Tell me a bit more about the tools that various Presidents throughout the 20th century build or try to build to get control of that massive apparatus. And I'll say one thing that was striking to me about reading this book, the Pot that Failed, which I wrote this essay about a couple of weeks ago, he's a former Nixon appointee who talks a lot about the history of presidential frustration with the bureaucracy. They, they ride over. And he quotes reports to various presidents, fdr, Johnson included. You guys spent a lot of time on Reagan in your book. But the threat is the same. Political executives preside over agencies which they never own and only rarely command, is one report that's given to lbj. So what are the tools that presidents in this period build to try and get control?
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I'm going to jump in on this one first, because Terry played a really leading role in, frankly, the history of presidential studies in writing in the 1980s, writing some really seminal pieces outlining strategies that presidents deploy in order to exercise a measure of control over these agencies that they themselves didn't create and that are sometimes pursuing objectives that don't align with their own policy preferences. And the two big categories are ones of centralization and politicization. Centralization involves the effort to bring decision making into closer proximity to the White House. And so you see the rise of the executive office of the presidency and the effort to do things like build out policy czars to bring decision making again in closer proximity to the President so that he can keep an eye on what's actually being decided and ensure that what's being decided aligns with his own policy preferences. The other move to make is to make political appointments, to appoint loyalists, appoint people whose policy Preferences align with your own to oversee those agencies. And so the politicization of these various agencies, which you could see already, there's a tension between the politicization of the agencies and the expertise that justifies the rise of the modern administrative state. But the politicization is in the service of expanding presidential control over it. And so those are two dominant strategies that are employed by Democrats and Republicans alike.
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Let me just add a little bit to that, if it's okay. You know, you asked about what the actual tools are. So the first thing that was created was the Executive office of the President, right under Roosevelt. And so that became sort of the bureaucratic rubric, the House that was going to hold presidential agencies, agencies that were created for the President to control the
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bureaucracy before the Executive Office of the President is created, which is now more than a thousand staff, I believe, in the Eisenhower Building and the West Wing. What exists? Just give me the bureaucratic history here. Who's making sure that what the President wants is happening.
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This was all new, right? The administrative state was new. The progressives actually didn't build much of an administrative state. It was the New Deal that really exploded it and created a much, much bigger administrative state. And the Executive Office of the President was created in 1939. So right in the middle of this thing. So it's basically chaos, right? I mean, they're. They're creating this gigantic thing that had never been there before, filled with all these new agencies. And so how do you control this thing? You know, how do you even think about controlling it? And so that was what they were up against. And so what they eventually arrived at was, okay, we're going to construct an executive office of the presidency. And we're going to put stuff in there that allows the President to use little units to control the bureaucracy. And the first one they moved in was the Bureau of the Budget, which is now called the Office of Management and Budget. It used to be in the treasury department, created in 1921. Then they moved it in, and then it became a purely presidential agency. In addition, there's now, like, the National Security Council, the Domestic Council, the National Economic Council, a presidential personnel office, an office for legislative outreach, et cetera, et cetera. All these different units are mechanisms of presidential control. And so you have the administrative state down here, but then you have the president with his own bureaucracy, right? And that bureaucracy works for him. And the purpose of it is to control everything else.
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One of the themes that you articulate here that matches very closely to what Nathan's. What he observed in the Nixon administration and a half is that there's, roughly speaking, two different modes that you can use to try and control a bureaucracy. One is centralization, bringing more things inside the White House apparatus and riding purred, quote unquote on the agencies that way. And another is just staffing agencies with loyalists or political appointees who are aligned in your way of thinking. Nathan spends a lot of time talking about how those two things, two ways of approaching the problem can be at odds with each other. I'm curious if you think that there's a tension between those two models of controlling a given cabinet agencies, say.
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Well, I don't think there is. I mean, basically they do both and they've been doing both for many, many decades. And so all the units that I just talked about, the domestic council, that's National Security Council, etc. They are set up with representatives from the bureaucracy and with other presidential people, advisors on the council. And what they're doing is they're bringing in information and ideas and, and expertise from the bureaucracy so that decisions can be made in the executive office of the President and not made out there in the bureaucracy where they don't trust how those decisions are going to get made. Right. So that's, that is centralization. That's how centralization works, where they're sucking decision making power into the executive office. Politicization is just hiring loyalists or people who think like you do, putting them in the agencies out there. And so then you get a lot of compliance just from that. And there's no reason why the two need to be in conflict, at least in my view.
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They're not foolproof though, in that they come with trade offs. If you do too much centralization, you can simply import all the bureaucracy that sits elsewhere. You could imagine an executive office of the presidency with 500,000 people, you would call it the EOP. And then what have you solved? You'll need an EOP within an EOP in order to be able to. So, okay, there's that. And politicization can come with some cost. When you appoint loyalists to a position, what you gain in control you may lose in expertise that the, the agency, the people who work within the agency at the margins may be less willing to make costly investments in expertise which may degrade its performance. And that that's a trade off that presidents routinely confront. But what's worth underscoring is that for decades, presidents of both parties were trying to build out this institutional presidency to try to leverage these mechanisms of control so that they could direct the administrative state towards purposes that align with their own policy preferences. And that's a, that's a story for scholars of presidential bureaucracy relations that is well understood and entirely conventional. Where we really break ground ground with this book is in recognizing some other features of the administrative state, namely its liberal character, which sets in motion some really important political dynamics that are worth unspooling.
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Let's get to that in a second. But I do want to stay on this real or perceived tension between different ways of managing the bureaucracy. I had an interview with Russ Vogt, who's the head of the Office of Management the Budget in between his two stints. Trump won and Trump two talked in the fall of 2024. He's now back in that role. And he basically presented two different in that conversation, he presented two different ways that the conservative movement has thought about managing the presidency or managing the executive branch rather. He mentioned Don Devine, who once ran the Office of Personnel Management, as one who really wanted to lean on cabinet officials. So you really lean on your loyalists, on your political appointees out at the agencies, and the management of those agencies happens between the president and his small circle and your people at the agencies. And I'll just quote Russ Vote, he disagrees with that view. He says OMB career staff, that is this kind of big expanded executive office staff have to make sure that you're moving in the right direction because cabinet officials are often on the road and the deputies who manage the shop don't have the ability to ride her. So there's an example of somebody who thinks there's only so much you can trust a cabinet director or a secretary to do for you to control the administrative state. I'm curious what you think of that view.
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Look, that's the whole reason for having loyalists, the people who will do whatever you want. And Russ Vote is all about having bureaucrats do exactly what he wants.
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But he doesn't think you can get it purely by politicals at the agencies.
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But his push right now is to massively increase the number of political appointees. So it may be what I think one way to end it. We didn't hear your interview with him, but one way to understand what he's saying is that the level of politicization that we have observed is insufficient to the task at hand. And the big push into Project 2025 is to massively increase the number of political appointees so that you have watchful eyes by loyalists over every subordinate. And another thing it's worth recognizing, and this is a tension that carries through. And it's important for the story that we're telling in the book is that when you evaluate what agencies are doing, what criteria should you be bringing to bear and is the only thing that matters. Presidents have a problem. They want to direct agencies in ways that will align with what their preferences are. Those agencies though, are also meant to fulfill objectives that are written into law. They have missions and obligations that are written into law that they are obligated to attend to. Another move that Russ Vote makes is to say those missions don't matter a lick. The only thing that matters is what's ever in the minds of the President, whatever the President's desires are. And so all of the capacity is just that sits in the administrative state, is just meant to be deployed as the President so sees fit. And that that's really problematic when you think about the health and well being again of a well functioning administrative state that is not just attending to generic purposes. It's been to attend to things that Congress has written down. So there we are.
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Maybe that's a good chance for us to talk about those other two branches. And we can start with Congress. Obviously we could talk for hours about how the different branches have responded to the rise of the. Whether you call it the imperial presidency or the strongman role of the President, this is a very deep question. But I guess from your perspective, Congress was once the keeper of the keys. Congress, I think very clearly, probably the most uncontroversial thing you could say here is just the Congress does not play an especially powerful decisional role today in American politics relative to any time, almost any other time. It's history. How did that happen? What happened to the checks and the ambition against ambition there for Congress?
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Well, I think, you know, William can comment on this too. I mean, two things happened. One is that polarization essentially made Congress most of the time irrelevant because Congress is dead in the water. You know, it can't make important decisions because there are so many veto points and factions within Congress that you just can't get Congress to make important decisions. And you can't get Congress to stand up for its own interests and for its own rights as an institution. Right. And the second thing is presidential power. You know, and what we haven't talked about here is there's this hugely important development in American history where conservatives pivot in their approach to politics and embrace a presidency of extraordinary power as their key for retrenching the administrative state. They had always been in favor of a, a weak government, you know, a weak presidency. And during the 1970s, when all of a sudden conservatism was gaining much more power, conservatives came to see, look, we can't get anything through Congress and it's mainly controlled by Democrats. We can't rely on the courts to cut back on the administrative state. So we need to rely on a president who is so powerful and has so much control over the executive branch that he can wield unilateral power in sabotaging these agencies from above and retrenching those agencies from above on his own. And that was the beginning of what became the unitary record of fury under Ronald Reagan, providing a legal rationale or exactly that brand of expansive, dangerous presidential power. And it's that along with some other social developments which we should talk about, that has led to the strongman presidency
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of Donald Trump and the strongman presidency Donald Trump, that Congress struggles mightily to do much of anything about, to check, to limit in that unitary executive theory. This is not one that invites congressional participation in the oversight of the administrative state. It's one that decidedly excludes Congress. And so, and meanwhile Congress, for reasons Terry identified, thrice of polarization, is all the veto points that are embedded in, in Congress. It also is the founders made a they got some things right, they got some things wrong. I think that they decidedly got wrong was a daring belief that those who sit within a branch of government will be faithful stewards of that branch of government, that they will act as members of Congress and stand up against any assaults on their independent authority. And they have not. They do not. And so when you see the rise of strong man power, you see it also displacing and pushing to the margins of our national politics. The first branch.
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Let's talk about the judicial system then, in particular the Supreme Court. I'm curious how you read it and I guess I'll put my cards on the table and say, roughly share the view, I guess. Sarah Isker voiced on a Ross Doutha podcast the the father of right leaning podcasters everywhere, that the Supreme Court has retained a lot of its power and been a firewall against many of Trump's most aggressive moves. And you can name, you know, the tariff case recently or the Lisa Cook Fed firing case, or even some cases that were not brought to the Supreme Court, perhaps because the administration had a sense that things would not fare well. I know last summer, everybody I Talked to in D.C. had this expectation that there would be an impoundment case brought to the court, that the president would try and exert more authority over how he could spend or not spend money. And in fact, that did not happen last summer. And one suspects that was because of the realization that things would not go well in front of this court. But I'm curious, how do you read
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the role There it is. I mean, can we just put, take that piece. We have a president who is slashing funding left and right. Congressionally appropriated funds left and right. And the question is, will that be checked? Will that be limited? Will you see the third branch of government stepping in and saying, I'm going to put an end to that? And the answer is no. They, they're silent on that particular matter, which is a matter of incredible import. When you think about the exercise of power, the doings of government. It's not exactly a point in favor of a third branch of government that is standing co equal with the second.
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B
And checking it, I might push back on that. I mean, I'm thinking about the USAID slashing is probably the most salient example of the Trump admin of the executive branch trying to slash congressionally appropriated funding. In March of last year, the Supreme Court refused to block a lower court order that required the admin to release funds. And so the, there's now a, you know, you can take issue, I think many people do, with the way those funds have been appropriated and the kind of new dispensation. But after that, I think I agree with you. Illegal pause slash and funding the courts, not an especially visible action, but they force that disbursement. I think, you know, you see NSF funding the National Science Foundation. There was a pause early, early in the administration and courts did a similar move there. And now you see funding more or less back on schedule, are trending the same direction. So I, I think you can definitely argue about the magnitudes, but my impression is that the courts have, have not been silent on the funding question.
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C
I think we need to go back to square one on this. I mean, basically this is a very conservative Supreme Court and this is a unitary executive Supreme Court. They believe in that the Constitution requires and justifies a vast expansion of unilateral presidential power. Now, there have been exceptions in some of their decisions. The tariff case is the one that stands out. But look at the immunity case. That is in my view, the most dangerous decision. The Supreme Court has been made vis a vis democracy in its entire history. It is an open door for presidents to commit as many crimes as they want in office and be held completely unaccountable forever for them. That's what Donald Trump is doing now. He's making a fortune off crypto and everything else in office. He's a criminal in office. And what can happen to him? Nothing. And he knows that. Furthermore, everybody that's involved with him who's not a president can be pardoned. They know that. Right. So the Supreme Court, they're not dumb. Right. They believe that expansive presidential power is justified by the Constitution, period. And that's, that's where they go. And so in many of these cases that you've, you've talked about where the Supreme Court allows them, you know, it comes to the Supreme Court and does this lower court case need to be reversed or not? The Supreme Court has, in most of those cases, allowed the Trump administration could go ahead and continue doing what it's doing, however destructive it is, and let the witch play out in the lower courts. Hey, what does that mean? If something has been destroyed, if the Consumer Financial Protection Bureau has been destroyed, if the Education Department has been completely taken apart so that it's not really an Education Department anymore, if the EPA has been disemboweled. Right. But these things are allowed to play out in the courts, what does that mean for those agencies? It means they're being destroyed. And you, you can't put Humpty Dumpty back together again. You know, once something is destroyed, it's going to stay destroyed for a long time. The Supreme Court knows that. Right. And what you would expect, by tradition, they would do with these emergency orders is maintain the status quo. Right. So if, if the Trump administration is destroying an agency, you'd think the Supreme Court would say, well, wait a minute, okay, we can't pull this. We're in agency. Let's, let's play this out in court. Right. And, and wait for a decision on the merits. But they don't do that. They say the destruction can continue, and then whatever it is, months, a year or two later, then we'll make a decision. Okay, well, that's too late, because they know that. So what they're doing is letting Trump exercise presidential power at the extreme. Right. And it's only in a few marginal cases where they've said, no, we can
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B
move on from this. But I, I think, you know, the birthright citizenship case has not come down yet, but I expect the president to lose badly there. The tariff case is a, I wouldn't call it a marginal decision either. Some of the decisions forcing the disbursement of funding that the administration insisted it could not, it would not fund, or the Brago Garcia, you know, return. Many of these do not seem marginal to me. It seemed like real constraints on the present unitary.
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A
Yeah, but they're also such fantastic claims about presidential power. Take birthright citizenship. The idea, I mean, it's unbelievable it that you have somebody arguing that unilaterally. I'm going to decree that what is broadly understood as established policy nationally, and it's entirely consistent with the Constitution, is the belief that if you're born in the states, you're a citizen, full stop, that I'm going to unilaterally do away with that. The fact that he would say that and that then the courts would say bridge too far. You can't do that isn't evidence of a bold Supreme Court that's keeping pace with the President's Navy turn and ensuring that he's operating well within Democratic boundaries.
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B
There's probably, there's probably some, some zone of agreement here. I mean, I definitely think the President will justifiably lose on the birthright citizenship question. So.
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A
But Sansi, can we, can we read something? Because something that we haven't established that I think is important for this sort of driving force behind the conservative arguments on behalf of vastly more powerful presidency, like where that comes from. We need to underscore this because we talked earlier about the expansion of the administrative state and its authority and capacity and its resources and how that set in motion a more powerful presidency. But it's taken to altogether new heights when you bring into view that significant portions of that administrative state were built by Big D Democrats in order to serve Big D Democratic purposes, that they are progressive in their orientation.
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B
Have a nice line in the, in the book where you say, aside from the defense and foreign policy sector, broadly, the administrative state is, quote, almost wholly an embodiment of progressive values. Yes, that was worth highlighting.
- [37:11]
A
And those progressive values are embedded in, in administration and tend to the work, regardless of who the President is, as best they can of advancing those values and those policy objectives. And if you sit on the left of the political spectrum and you look out at that administrative state, you say, hmm, maybe not as efficiently as I would like. Hmm, maybe not getting exactly the policy I would like. I would like to increase my control, but I'm basically okay with how things are going. If you sit on the right of the political spectrum and you look out upon that, you look upon administrative structures with a deep abhorrence, and that that opposition was expressed from word go from the right. And they, as a consequence, had a kind of political problem on the right that they didn't have on the left. On the Left, it was about control. How do we increase control on the right for significant portions of the right, the conservative right, they would like to wholly extricate these progressive components of the administrative state from the constitutional order. They would like to retrench them. They would like to do away with them. They would stop. Right. And the problem, though, is, and Terry recognized this earlier, I just want to make sure we don't lose sight of it. The problem is that it's very hard to unwind those activities and those administrative gains through the legislative process. If you're on the right, you lack the votes. And the idea that having created an agency legislatively, that then if you want to make it go away, you just do the same thing, pass a new law. It's very hard to do.
- [38:49]
B
Tends not to happen.
- [38:50]
A
Right. And so what the conservatives settled on in the 70s is that rather than looking to Congress, rather than looking to the courts, they said, we're going to build a presidency of extraordinary power. That's the origin of the unitary executive theory. It's to solve a political problem they had. This is not about folks on the right saying, let's reread Article 2 over pizza and talk about what do you think it means? It's they had a problem in the 80s, which is they needed to solve, which is how to retrench the progressive components of the administrative state. Vastly more powerful presidency is the way to do so.
- [39:23]
B
Can I just ask you a little bit more on the genealogy there? I think that the story of kind of the rise of the unitary executive view, you guys captured it very well in your book. I've always had this instinct, and I think maybe some of the interlocutors you guys have had, folks like Adam White since the publication of the book, would also flag that there was a parallel instinct to look to the courts to do what Congress couldn't. And you could see Federalist Society and Loper Bright, you know, some of these recent rulings that at long last for the conservative movement have restrained the power of the agencies as movements that also basically the. The conservative movement in the 70s says Congress can't do what we want it to do. We'll look to both of the other branches.
- [40:02]
C
That's what the Supreme Court is doing. And they did it in Loper Bright. Right? The Loper Bright decision overturned Chevron. And the point of that was to say, well, we're not going to defer to agencies anymore. We're going to tell them, we're going to judge what they're doing and really what it comes down to is they think the agencies are doing too much. They think that they're engaging in overreach and going beyond their legislative mandates. For instance, when the EPA pursues climate change, Right. That's an overreach. And so what the Supreme Court wants to do is to step in and say, you can't do that. Right. So this is a way that the court system, through the Supreme Court, can retrench the administrative state on its own. And what they're doing then is doing what presidents would do if they could.
- [40:51]
B
Right.
- [40:51]
C
And maybe they can do that on their own. Right. But the Supreme Court is supporting the conservative presidential agenda in its approach to bureaucracy and taking down Chevron and also in adopting the Major Questions doctrine. Same thing. They're going to say you're engaging in overreach. Right. So the courts are very much part of this. And they weren't in the past because there weren't very many conservative judges, number one, and because this whole conservative jurisprudence didn't exist. If you go back to the 1980s, and it began during the 1980s, mainly because of the efforts of Ed Meese, right, who was Reagan's second attorney general, and he took it upon himself to go out and popularize among conservatives, among the. In the New Federalist Society and these other organizations that were. They're trying to build networks. Steve Tellis has written all about this, and he was the one who went out and started talking about originalism. Originalism was nothing at that point. Right. Robert Bork had introduced it in 1971 in an article, and this thing was not going anywhere. And there weren't very many judges who adhered to originalism. And Mies was the one who went out and talked about it, talked about it, talked about, got in the newspapers, started fights, you know, and got conservatives thinking, okay, this is our thing. We can get on board with originalism. And at about the same time, the unitary executive theory was developed by Mises people in the Justice Department, and this was the beginning of a conservative jurisprudence. Right. And that would provide the legal justification for a presidency of extraordinary power. And see, that's something that Nixon never had. Nixon didn't have any kind of conservative jurisprudence. All he said was, I want to do these things. And he did them. It was chaotic. It was like, yeah, we don't want activist judges, you know, we want law and order. That was about the sum total of it. But it was during the Reagan years that you really got a conservative jurisprudence. And then with the appointment of all these judges over time, conservative judges and populating Republican administrations with federal society people, you people who think the same about originals and about the unitary executive theory, and that's why it's now really dominant among conservative thinkers and among Republican administrations.
- [43:27]
B
That's a good, that's a good history, Terry, and I think I agree with, with the vast majority of it. Let me ask you guys two questions before we close and we can spend a little time on each one is I want your assessment of as I promised, we get to what was the health of the administrative state in, say, 2015? Where were we on that side? And then I want prognosis and what to do about this state of affairs. And in particular, I mean, I want to hear from both of you, but Will, you were dean of a school educating the next generation of hopefully members of the administrative state. Bureaucrats, civil servants, really. We don't say bureaucrats. How do you think about your charge in light of the state of affairs that the two of you described? But let me start with where was the administrative state in 2015? Was it healthy? I guess might be my jumping off point.
- [44:16]
A
I think there's much to say that's critical in nature when you think about how well designed it was, how how well functioning those agencies are. To say that it was filled with expertise and capacity and resources isn't to say that it's fulfilling objectively a set of ends as well as it might. There's clear reason for critique and deep critique. This asymmetry that defines Democratic and Republican presidents is worth underscoring here, though. What you see under somebody like a President Clinton and Vice President Gore undertake a concerted effort to modernize the administrative state, to improve it, to say we need this thing performing better. And that effort was yielded mixed results. It didn't sort of set everything right. That's not the posture on the right, which is not about how do I improve the effectiveness and the efficiency of these dominant progressive agencies. It's a story in important ways. It's about retrenchment and sabotage. How do I keep them from being able to perform anything especially well within a set of agencies that they object to? They're playing different kinds of there's a different kind of game that folks on the left and the right are playing vis a vis that administrative state. So to say, to recognize that fact is not to say that the administrative state is performing especially well or that there aren't pathologies within it that need correcting. But I think it is to say that they sit in very different relationship to the administrative state. Those dominant Progressive components of the administrative state which lead them to engage in very different activities as they try to, in one hand improve as best one can, in the other hand sabotage and undermine it.
- [46:01]
C
Let me just add to that. You know, if you think about the epa, for example, do Republicans want the EPA to be more effective at carrying out its legal mandate? Absolutely not. They hate the epa. They wish there wasn't an epa. Did they want the Consumer Financial Protection Bureau to be more effective at regulating banks? No, they hate that agency. Right. They wanted it to go away. Right. So all this business about we want to make government more effective, you know, that's really a misnomer. That's not what they want at all. They're opposed to these agencies. Okay, so there's that. And I do agree with, with William, 100%, you know that. Yeah, these agencies have not performed as well as we would like. You know, you can point to problems with Medicare and Medicaid and, and you know, most of these agencies, they're, they're inefficient, they spend too much money, they're fraudulent, etc. But you take those agencies away and millions of people will be hurt by it. People want those agencies, they love what those agencies are trying to do. And so the solution is not to kill them. The, the solution is to actually seriously, in a well intentioned way, try to make them better. And that's not what Republicans are up to. The second thing, and then I'll stop here, is that these agencies were created by the rule of law. Right. And if you want to improve them, good. If you want to make the EPA more effective, good for you, you know, do that. But it has a legal mandate to address the nation's pollution problems. And you can't transform that agency, sabotage it so that it doesn't do that, because that's a vial. It should be a violation of the law. And what Republicans see when it comes to the law is that the law is inoplical. The law just gets in their way. Right. And so they cannot adhere to the rule of law because if they do, the EPA is going to go out there and address pollution problems. Right. So they can't embrace the rule of law and that puts them at odds with it. And you can see it all over the place in the way Republicans approach policy decisions and the administrative state. They are constantly violating the rule of law in order to get where they want to go.
- [48:26]
B
I'm going to, I think we could spend a long time arguing about the intentions of Republicans. And so I'm going to, I'm going to save that for maybe a later date. I do have a, a question for you on the history here. I think there has been a lot of destruction of civil, of the civil service in the Trump era and I've written about to that effect elsewhere. But I do also would argue, and listeners have heard me argue this a million times before. Sorry. That many of the constraints or the maybe unintended sabotage on the administrative state has been the result of a lot of grassroots movements that have been either nonpartisan in nature or have been in positions from the left. And you can see this in Mark Dunkleman's book why Nothing Works or Nick Bagley's work about the constraints placed on administrative agencies and bureaucrats, books like Public citizens. Surely there's a long tradition, at least in the last 50 years of finding new legal tools that citizens can use to slow down the work of administrative agencies.
- [49:19]
A
Yeah. This is the ground zero for the abundance movement is to recognize all the ways that administrative agencies are tied up in knots and tied up in knots, especially in left leaning states and left leaning cities that they just can't get anything done.
- [49:34]
B
And in ways that root back to, you know, the late 60s and early 70s.
- [49:37]
A
Agreed to say that attacks come from the right when channeled through the presidency in an effort to sabotage, directly use the powers of the presidency in order to sabotage these agencies. Isn't to say that every pathology and every abject failure of the administrative state sits exclusively by conservative design. Sure. The excesses of proceduralism are a real thing. Let us stipulate that. I think what we're trying to do here is to think about again the rise of a strong man presidency and its threat to the rule of law and democracy. And there there's a decided partisan asymmetry that we just have to grapple with.
- [50:22]
B
Will and Terry, you are both teachers of the youth, you're both professors. What would you have us do?
- [50:27]
A
I'll let Terry solve the problem and I'll just say, like the point of our book, we don't end with take these three steps and we'll be free and clear. Like, that's not what the book does. The book tries to take stock of the long history and the powerful forces at work and the strategizing and the partisan shifts. And we didn't talk much about the rise of populism. It's an important part of this history as well in order to get clarity about what we're up against. And what we're up against is not something that's going to be fixed with a single election. It's not going to be fixed with the replacement of one president. And if what you want to do is get into the business of democratic renewal, you better have your sights set on the intermediate and long term. You better be playing the long game because there's not a single move to be made that's going to be a correction. And the forces that led us to this moment, many of them remain in place. The unitary executive theory is continuing to do work. The appetite for strong manpower that sits on, on predominantly on the right, isn't going away. And so just because we swap out one set of political actors, don't expect suddenly things to be set well and well and good. Now, what are the exact actions that need to be taken? There's a long, long list and Terry's going to illuminate them and walk us through to make sure.
- [51:46]
B
No, no, no. But before, before we, before we let Terry solve the problem, will I need more from you there. What put us, put us on the ladder. Give me one or two things.
- [51:57]
A
All right, I'm gonna. This is entirely self serving and it's something that I believe. I'm here, I'm standing at this brand new school of government and policy at Johns Hopkins university in Washington D.C. and I think that universities play a role in trying to cultivate people who will be faithful stewards of public interests and will work with governing institutions in order to think anew about how they might be designed so that they might more effectively solve public problems. We, on our own at this school aren't going to counter all of the threats to democracy and all of the damage done to our democratic institutions, but we play a role in it. And I would say that that's true of higher education more broadly. And the civic sector needs to come into play and the abundance movement needs to come in and is trying to do important work in this space. And you, Santi, with this podc, are trying to get clarity about where do we see dysfunction and what might be done about it so that we have a government that can more effectively solve public problems. This is the clearest analog that I think that we have historically here is to go back to the progressive movement which in trying to solve public problems then enjoined the efforts of businessmen and journalists and higher education and community activists, a whole assembly of folks who are trying out a whole bunch of reforms. So that's, that's what needs to happen this go round. And again I'll say in a small but a critical way the school that we're trying to stand up here at, Johns Hopkins is trying to be a productive force in building more effective institutions that can solve public problems.
- [53:37]
B
Over to you, Terry. Take us home.
- [53:39]
C
Okay. It's my job to solve the whole thing.
- [53:41]
B
Yeah. The two of us have talked, and we've decided. You're solving it, Terry.
- [53:45]
C
Well, usually I'm a grim reaper on things like this, but I'm going to go ahead and try to characterize the path forward in a way that's not completely grim. So the first thing to recognize that William has already recognized is that the deep hole that we're right now has come about because of these social and political developments and disruptions that have occurred over many decades. Right. And so we have many, many, many millions of people who are very anti system, who are filled with grievances, who feel like victims, who feel like they're the losers from modernization. They feel like a progressive government has let them down while it focuses on minority rights and all the rest, and they're fed up, you know, and so when Trump leaves Center Stage in a couple years, those grievances are still going to be there. Right. And the people in the Republican Party, the people who want to be president with the Republican nomination, they're going to have the same incentives, and so we're going to have the same democracy problems after Trump leaves office that we have right now. Okay? So. And this is going to stay the same just as it did when Biden was president, even if the next president is a Democrat, because those forces are still there underneath it all. Okay? So having said that, there are reforms that if the Democrats ever get, you know, a trifecta where they have the presidency in the House and the Senate, if that happens, then maybe they can do some things, you know, maybe they can take action to change the structure of the courts. Right.
- [55:28]
B
So that is how so?
- [55:30]
C
Well, they could add members to the court, for example. They can change the jurisdiction of the court. It's within Congress's power to do that. Congress has done that historically, so that's a possibility. Other things, you know, they can redo the Voting Rights Act. They can try to do away with the Electoral College through a constitutional amendment. They can try to do away with partisan gerrymandering through a constitutional amendment. They can try to do away with Citizens United under a constitutional amendment and so on. So these are reforms that are potentially out there. Are they likely? No. And that's the problem. Right? So that's why a person can easily become grim on this, because the kinds of reforms that might actually work are very, very unlikely to happen.
- [56:18]
B
Let me ask you from, from your perspective, are there reforms that would not get my partisan hackles up? If you could put together a, a unilateral ban on partisan gerrymandering and you could make it work. The devil's in the details, but I think you could probably get mass majorities of American voters on that one. But the rest of them certainly wouldn't land with the American public as boring good governance reforms. It would read as very partisan.
- [56:43]
C
Historically, the Voting Rights act has been very popular and passed in the past by big bipartisan majorities. Right. Also Citizens United, that thing is not popular. You know, people are very convinced that billionaires have way too much power in American politics. Right. And, and the Electoral College, many people don't like the electoral College. I think that would go down if, if the alternative were majority ruled. So. And also doing something about the court system, I think you could formulate proposals that most people would go along with. So anyway, look, I'm not saying these things are going to happen because almost surely they're not right. But what we know is going to happen is that these forces from the past are going to continue. Right. And all these people who feel aggrieved and feel victimized and feel very, very anti system are going to be there. They're going to still be there, they're going to be voting and Republicans are going to be responsive to them. And so we're going to continue to have these incentives, strongman incentives over on the Republican side. Is it not going to just glow away?
- [57:52]
B
Terry and Will, we haven't always agreed, but it's been a real pleasure and I've, I've really enjoyed talking to the two of you. Thank you for coming on Statecraft.
- [58:01]
A
Thanks for having us there.