Day: June 30, 2025

For many Gen Xers, the greatest Saturday Night Live sketch of all time is “Sprockets,” a recurring piece in the late 1980s and early 1990s. It made genius use of our vague notions about the bleakness of German popular culture during the twilight of the Cold War. The sketch had black turtlenecks, celebrations of the macabre, and an inexplicable pet monkey. I remember reading that one of the sketch’s writers had never seen German television, but Sprockets is what he imagined it was like.

And that confident ignorance is what made it. None of us knew a lick about German television. Our sense of it was based on fragments of actual information stitched together by uncharitable speculation. The result was classic parody: Take something real, grossly simplify most of it, and ludicrously exaggerate the rest.

It’s time to admit that DOGE was the “Sprockets” of government reform. Elon Musk seemed genuinely enthusiastic about cutting government, but he didn’t know a lick about governing. He took bits of information, added some uncharitable speculation, and created a caricature of policy and public leadership. In the end, what he offered America was comic theatre. Sadly, too many conservatives gleefully tuned in, thinking this farce was real.

We will miss the most important lessons from DOGE if we look at it as a clumsily executed effort at cost-cutting. Instead, we must understand it as simply the latest failure of technocracy—another instance of the high price we pay for trusting supposed technical experts to do the work of republican governing. As I’ve written, there are two kinds of technocrats. The better-known variety comes from the left. They claim expertise because of their elite schooling and smarts. They promise to apply “scientific” methods and dispassionate judgment to make government rational and efficient. They almost always seek a larger role for this newly sensible, streamlined government; under their care, they believe, the wise state can expertly manage schools, the economy, social services, housing, and so on.

The less-discussed variety comes from the right. These technocrats typically claim expertise due to their private-sector chops. They’ve been consultants or run businesses. They are sure their organizational expertise, strong backbones, and agility with numbers can whip the government into shape.

All too often, what unites the two is confident ignorance. Neither type really knows anything about governing. They’ve generally never served in any meaningful governing capacity before, and they are unaware of most of the history, rules, and duties of the entities they presume to fix. When made aware of such things, they routinely dismiss them as hindrances. If pressed, both types of technocrats will betray skepticism about democratic decision-making and the habits, practices, and mindsets that generally go along with it (like humility, incrementalism, accommodation, and compromise). Technocrats believe they know best; that process stuff merely gums up the works. In sum, they lack practical wisdom in governing—the knowledge and disposition that come from years of time on task and accountability for results. Worse, they often believe their inexperience is a virtue—they have fresh eyes, they haven’t been corrupted, etc.

The life cycle of technocrats, whether from the right or left, is well documented. They enter with self-assurance and titanic promises. They bring along a cadre of like-minded (and like-limited) supporters to execute the plan. They swiftly alienate people. Others quickly see the technocrats’ shortcomings. But the technocrat perseveres, unwinding old ways and chalking up the growing opposition to others’ inadequate vision and skills. Results disappoint. Dysfunction grows. Eventually, the technocrats retreat, muttering that they would’ve succeeded but for the recalcitrance of the system. 

That pattern was on full display during the rise and fall of DOGE. Elon Musk knew virtually nothing about governing, our system, its institutions, its history, or its practices. Like the Sprockets’ writer with German television, he had a vague sense of what it was based on snippets of information, and then he filled in the vast gaps with uncharitable speculation: It’s all waste and abuse. Bureaucrats don’t do real work. These jobs and tasks are meaningless. Civil service rules can be ignored. And so Musk applied the right-technocrat’s playbook. “I know business. I know numbers. I have backbone,” he may have said. “I’ll cut and fire and whip this behemoth into shape.”

It should have been obvious from the start that this wouldn’t end well, that DOGE would suffer the fate of other high-modernist initiatives. I predicted this repeatedly. In fact, my biggest surprise early on was that so many conservatives believed Musk and DOGE were a godsend. Of course, we should reduce the power and reach of Uncle Sam, I thought, but that won’t happen via a hastily assembled, short-term project led by someone whose only meaningful experience with government was getting contracts. Moreover, Musk’s experience downsizing X—reducing a social-media company’s workforce by a few thousand people—wasn’t exactly a cognate of overhauling the federal government’s roughly $7 trillion budget and 3 million-strong workforce. But many on the right bought in fast. Maybe it was their longstanding anger about big government, or maybe it was their sense that this moment called for a congenital disruptor. Whatever the explanation, DOGE fever suppressed conservatives’ natural skepticism and prudence and rendered them unusually susceptible to a charlatan’s pitch.

Under Musk’s guidance, DOGE demonstrated just how similar left- and right-technocracy are in practice. Left-technocrats have long seen government reform as a technical enterprise: Progressive Era “experts” believed they were utilizing scientific management; Great Society-era figures believed the principles of engineering could solve stubborn social challenges; Obama-era nudgers had great faith in the “scientific” benefits behavioral economics would bring to policy. Similarly, Musk’s DOGE team was chock-full of engineers, and they had great faith in AI’s ability to identify and drive needed reforms.

Left-technocrats—from Progressive Era “best men” to Kennedy-Johnson Era “best and brightest” to today’s administrative-state experts—have wanted to replace politics and politicians with tough-minded rationalism. Similarly, Musk repeatedly warred with the political leaders in Congress and the cabinet who had different priorities than DOGE’s algorithms.

But the most striking commonality is the lack of experience or even interest in republican government. Left-technocrats typically enter public service from foundations or academia. They’ve viewed electoral politics as messy, even unseemly. Speaker Sam Rayburn’s famous exasperation at the ostensible whizzes surrounding President Kennedy speaks volumes: “I’d feel a whole lot better about them if just one of them had run for sheriff once.” It was the same with DOGE. Musk, himself astonishingly inexperienced in governing, filled DOGE with employees from his various tech companies and initiatives. These young whizzes brought experience in AI, start-ups, and finance, but none from the world of governing. Ultimately, DOGE’s senior leadership, empowered to rework key governing institutions, had no experience in key governing institutions.

Given all of this, it should have come as no surprise that DOGE would flounder. Very quickly, Musk crossed swords with several members of the cabinet—that is, those who knew something about their agencies and were ultimately responsible for that work. The president soon had to side with his secretaries and direct his chief of staff to better manage Musk. None of this, however, stopped DOGE from making a raft of ill-considered, even dangerous, cuts. A partial list includes air traffic controllers, NOAA scientists, staff at national parks, nuclear safety workers, and cybersecurity officials. Such decisions were so ineptly implemented that DOGE had to rehire dismissed workers several times, and the courts had to stop DOGE from abusing its authority.

But most damning is DOGE’s failure to accomplish what Musk promised: Unprecedented reductions in federal spending. He began by claiming that $2 trillion would be cut. This was laughable to anyone with even a passing familiarity with the federal budget: That figure would require Congress to decimate entitlement programs and defense spending. Indeed, Musk soon had to back down from those claims. But that came after repeated dubious claims about reductions and an error-riddled website. It’s still not clear how much DOGE actually saved. And contrary to the hope that this effort would shock Washington into a new era of parsimony, Musk’s blow-up with Trump about the “big beautiful bill” demonstrated that Uncle Sam will continue to spend to the hilt.

There is, however, one noticeable difference between DOGE and past left-technocratic efforts. Those progressive engineers may have been smug, but at least they were sober-minded. They were generally the humorless, green-eyeshade type. They saw their project as technical, often giving the impression that politics and publicity were beneath the work. DOGE, however, from the very start, had a juvenile air about it. Not only was it full of very junior staff—recall the 19-year-old “Big Balls”—Musk himself engaged in petty name-calling, went teenage goth with “dark MAGA,” wielded a chainsaw for laughs, and bounced around childlike on stage during a political rally. His reported drug use is undisciplined at best. Even President Trump, seldom the most measured person in the room, privately described Musk as “50% genius, 50% boy.”

As we seem to close the book on DOGE, it’s worth asking why Trump chose someone so unqualified to run such an important operation. If the President really wanted to reduce spending and streamline the federal workforce, he could have selected a host of experienced people who knew how to get the job done: for example, steely-eyed former directors of the Office of Management and Budget who’ve worked on these issues or scholars at Cato who’ve studied this for ages. They would have understood what to cut, what not to cut, how to avoid lawsuits, how to work with cabinet secretaries, how to draft rule changes for agencies, how to work with congressional appropriators on future rescissions, and much more. Why would President Trump go with Musk instead of one of these experienced hands who knows policy and governing?

For the same reason that Saturday Night Live didn’t hire someone who actually knew about German culture and entertainment to write “Sprockets.”

That wouldn’t have made for good television.

The glittering sheen of commerce masks a Janus-faced enigma, that parent of both war and peace, glory and ruin, freedom and despotism, progress and regress, virtue and hedonism. Accused by thinkers throughout the ages of inducing these wide-ranging and contradictory effects, commerce—and its role in conditioning the character of peoples and nations—is the subject of a delightful new Festschrift, Commerce and Character: The Political Economy of the Enlightenment and the American Founding, in honor of Ralph Lerner, the Benjamin Franklin Professor Emeritus of Social Thought at the University of Chicago and a distinguished scholar of political theory and American political thought for over sixty years. Edited by Steven Frankel and John Ray, the volume of essays offers keen interventions in scholarly debates over Enlightenment thinkers’ views on the intersection of commerce and statecraft. Its chapters, however, are also written with a level of clarity and concision that makes their arguments accessible to readers who may be unfamiliar with some of the books cited throughout the volume.

Commerce and Character uses Lerner’s pioneering 1979 article, “Commerce and Character: The Anglo-American as New-Model Man,” as a provocation for a series of essays from leading scholars in modern political thought on enduring themes of political economy that Lerner explores in his original essay. His thesis was that early modern thinkers such as Montesquieu, Smith, and Hamilton defended the idea of the commercial republic as a more plausible alternative to ancient republics grounded in civic virtue and as a more just political arrangement than the political-theological regimes of medieval Christian Europe. The protagonist of the commercial republic was what Lerner calls the “new man of commerce.” This novus homo exemplified the qualities of prudence, sobriety, and thrift, subduing the pretensions of glory, pride, salvation, and the public good extolled in various fashions by the preening aristocrats, kings, and pagan citizens of yesteryear. (One may detect resonances with Albert O. Hirschman’s The Passions and the Interests, though by Lerner’s own admission he deviates from Hirschman’s thesis in some respects.) Carefully drawing attention to the thinkers’ diagnoses of both the merits and limits of commercial society, Lerner concludes the essay by appealing to Alexis de Tocqueville’s cautious endorsement of the commercial republican way of life. This new social order did not merely enable man to tame and channel his baser passions, but it also prompted him to imagine new conceptions of greatness and happiness harmonious with the sweet flow of commerce.

The chief strength of this new volume is the nuance and care with which it examines the challenges commercial society has posed for understanding liberal and republican political thought, statesmanship, the moral texture of social relations, and religion. Commerce and Character thus delivers readers from the ravenous wolves of homo economicus and rational choice theory, two intellectual traditions eager to peel back the ethical and cultural layers of the market participant and narrow his mind to the cold motives of calculation and economic self-interest.

Consequently, the essays escape the tangle of ideology driving contemporary debates over the value of commerce in modern society, resisting Pollyannaish paeans holding that boundless wealth and GDP are always for the better but guarding against romantic notions of a pre-commercial age that subordinated lucre to glory. The book also serves as an instructive addendum to the aforementioned Passions and Interests, which traced the attempt by early modern thinkers, rooted in Machiavellian realism, to redefine the human passions as a productive instrument to preserve and beautify social order. Finally, the volume is a timely, if unintended, intervention in ongoing disputes over tariff policy, injecting much-needed philosophical and historical perspective into the debate over free trade that too often submits to the clutch of quantitative-drenched economists who flaunt supply-and-demand charts but no audible pulse.

The broader benefit of books such as Commerce and Character is that they stretch the field of vision of the economics discipline. Consider the recent exchange between Gene Callahan in Modern Age and David Hebert, here in Law & Liberty, over the role of economists in assessing tariff policy and conceptions of happiness. Hebert is correct to highlight how empirical evidence furnished by economists can puncture fanciful assumptions behind public policy, such as the conjecture that tariffs have a reliable track record of protecting the domestic steel industry.

But Callahan rightly emphasizes that the conventional economic worldview—which, we should add, thoughtful heterodox economists resist—often holds a cramped and unimaginative understanding of happiness and wealth. Hebert acknowledges that many people, including himself, choose to work in less lucrative jobs because these jobs endow them with a profound sense of meaning. This observation itself confirms the merit of Callahan’s judgment, for it dissolves the sacred tenets of homo economicus by weighing deeper factors essential to man’s happiness that cannot be measured, computed, and instrumentalized. Marx’s superstructure in this formulation is now the base, and his base is now the superstructure.

Cue the rational choice theorist: The decision to forego a higher-paying job for a lower-paying but more meaningful one maximizes individual utility, so Hebert’s example in fact underscores the persuasive power of the economic mindset. This logic is reductive. If happiness exceeds the accumulation of material riches, as Hebert seems to suggest, and if economists acknowledge this guiding principle as well, then they are veiled Aristotelians with judgment rather than scientific quantifiers with measuring sticks.

Because the essays in Commerce and Character embrace this larger view of human flourishing, they are able to take into serious account notions of greatness, political regimes, national identity, moral corruption, imagination, false consciousness, sympathy, patriotism, and family affections in their study of commerce. To wit: John Locke offered a more compelling defense of property than David Hume (Michael Zuckert); Smith and Alexis de Tocqueville envisioned the need to formulate new conceptions of greatness in the commercial republic (Ryan Patrick Hanley); Thomas Jefferson helped create a new national identity that envisaged an empire of liberty released from the grip of artificial hierarchy and privilege (Peter S. Onuf); and Rousseau detected a kind of false consciousness lurking within the commercial republican project (Clifford Orwin).

Regarding doux commerce, the essays on the whole paint a compelling portrait of early modern discourse on whether international trade tended to foster peace, with Montesquieu, Smith, Hume, and Thomas Paine endorsing this approach and Hamilton registering a notable dissent. In addition, Lerner’s and Onuf’s contributions shrewdly, if briefly, alert readers to the nuances in this argument. They highlight how the marriage of industrialization and commerce, rather than promoting global peace and stability, has frequently augmented the power of the state, a seductive steroid utilized by leaders to help incite unprecedented military conflict.

Yet there was scant discussion in Commerce and Character of Smith’s and Hume’s awareness of this phenomenon as well, which diminishes the subtle complexity of their views on the subject. Although both thinkers are considered proponents of doux commerce—an interpretation reinforced by the volume’s chapters—they were also alert to the novel features of commercial society, such as a growing industrial base and public debt, that created the devilish incentives to finance and wage war. “The more labour … is employed beyond mere necessaries,” Hume wrote, “the more powerful is any state; since the persons engaged in that labour may easily be converted to the public service.” Smith’s famous observation that the division of labor dissolved man’s “martial spirit” suggested the opposite conclusion but similarly underlined the connection between commerce and war: a commercial and industrial nation rearing docile pin makers and not valorous political animals did not adequately prepare its citizens to defend themselves, thereby rendering the nation weak—and thus prone to attack—unless remedied, at least in part, by other measures (such as, in Smith’s case, modestly funded public education and a standing army). As Maria Pia Paganelli and Reinhard Schumacher have shown, Smith also observed that “merchants and manufacturers” in a commercial nation possessed sufficient amounts of capital to underwrite wars. This is not to mention Smith’s more famous attack on the monopolistic spirit of self-interested merchants that bred national animosities toward foreign rivals. His defense of the older form of the Navigation Acts further suggested his intuition that doux commerce would struggle to calm the tempestuous jealousies between English and Dutch traders.

Like many festschrifts, at times there is a lack of methodological coherence and consistency among the different chapters. Particular essays directly engage with Lerner’s “Anglo-American as New-Model Man,” and others don’t, which occasionally makes for awkward transitions from chapter to chapter. Because the general spirit of the volume smiled favorably upon the ascent of commercial society, even given the authors’ judicious attention to the potential drawbacks of this development, an essay from a harsh critic of modern commerce—say a postliberal or even a Marxist—could have enhanced the flavor of Lerner’s dialectic with his contributors by expanding the terms of debate of the modern bourgeois ethic.

The essay that does offer the best direct engagement with Lerner’s thesis, and one that initiates the sharpest disagreement between Lerner and his interlocutors, is Colleen A. Sheehan’s “The Good Republican: Madison’s Model Citizen.” Criticizing Lerner’s belief (as she understands it) that the American Founding was ultimately rooted in Hobbesian premises about the ineradicable nature of the human passions, Sheehan maintains that Madison put forth a vision of a civically conscious citizen who harbored the moral virtue and educational background necessary for republican self-government. Madison’s “model republican citizen” was, like Lerner’s “new man of commerce,” a man of modernity. But, unlike the modern commercial republic, the Madisonian republic in which Sheehan’s model republican citizen lived aspired toward “age-old political ends,” such as public virtue. Framed differently, this citizen embodied the qualities of a statesman, not a shopkeeper, a Pericles, not a Bezos.

Delivering a sharp jab at East Coast Straussian and Deneenite interpretations of the American Founding, Sheehan concludes that the Founding was not a low or vulgar episode but a noble moment capturing the civic republican heartbeat of Madisonian political thought. In response, Lerner questions Sheehan’s premise that Madison’s model republican citizen contravenes Smith’s and Benjamin Franklin’s (and hence Lerner’s) vision of the new man of commerce, noting the latter thinkers’ appreciation of character formation that leapt beyond an appeal to the bourgeois virtues. This zestful exchange was one of the highlights of the volume.

Additionally, a number of essays explicitly or implicitly accept Lerner’s contention, indicated in a footnote to his original essay, that the champions of commercial republics, due to their shared embrace of ordered liberty, sought to “emancipat[e] men from many modes of thought of the past.” This framing—the advocate of commerce in the early modern period, even if grounded in moral sensibilities, desired to liberate profit and self-interest from the thick rust of European custom, prejudice, and monkish superstition—is common among intellectual histories and political theory studies of the emergence of commercial society and capitalism. Yet there are at least two dangers with this Whiggish-tinged framing. First, it can understate the premodern roots of the modern economy. Many features that enabled the rise of the commercial republic, including due process, property rights, mixed government, and Christian notions of equality, as the authors of the essays well know, predated the eighteenth and nineteenth centuries.

Second, and more dangerously, this pleasing binary between premodern and modern notions of commerce can feed the assumption that such seemingly outdated modes of thought yield little insight into understanding political economy today. Lerner’s concluding essay in response to the contributors flirts with this temptation. Lerner maintains that the proponents of commercial republicanism rightly sought to displace premodern Europe’s older system of opinion and sentiment—the same system, he observes, Edmund Burke defended in his famous quip in Reflections on the Revolution in France lamenting the demise of the age of chivalry and attacking the “sophisters, oeconomists, and calculators” of the late eighteenth century—with an updated system guided by the qualities of the new man of commerce.

Wistful Don Quixotes may not be the answer to contemporary social ills, but the sophisters, economists, and calculators of today—the talking heads, tinkerers, and technocrats—who filled the vacuum left by the downfall of the aristocracy and clergy are certainly not either. The singular artistry of Ralph Lerner’s career demonstrates the resilient truth that the pursuit of the eternal builds the stable philosophical and aesthetic foundation for the restless activities of the sophisters, economists, and calculators—and even, dare we say, for those glitter-coated ventures of the new man of commerce.

My thanks to my three interlocutors on the important issue of the Constitution and the unitary executive, Andy Smarick, John Yoo, and Keven Frazier. As I wrote, the theory of the unitary executive asserts that “the president has authority to direct all parts of the executive branch and to fire anyone in the executive branch or, at least, to fire anyone with authority over policy.”

There are, of course, any number of alternative institutional arrangements to the unitary executive; these are reflected currently among various forms of “horizontal” plural executives adopted by US states, but also historical forms of “vertical” plural executives that Alexander Hamilton criticizes particularly in Federalist #71.

I focused my analysis on what I consider to be the most broadly relevant choice of executive form today: On the one hand, the national government continues with the current system that recognizes [a] “independent executive agencies” that are immune from formal and continuing presidential direction and removal authority, and [b] provides merit protection to numerous executive employees who influence policy, thereby immunizing them from the direction of the electorally accountable chief executive. The alternative would be recognition that the US Constitution does not allow statutory creation of a horizontally plural executive (in the form of independent executive agencies) nor a vertically plural executive (in the form of judicial review of the cause for which a president replaces currently merit-protected executive employees).

I argue that the second of these alternatives is superior to the first in the current context. The problem with the first alternative is not simply the formalism that the US Constitution does not comprehend these statutorily created plural forms of the executive, but that, unlike plural executive arrangements at the state level, these constitutional oddities are immunized from electoral accountability, which is the first guardrail for insuring executive accountability and competence.

At the same time, it merits attention that the doctrine of the unitary executive is a doctrine regarding presidential control of the executive branch only; it does not authorize the president to usurp Congress’s legislative power by executive order, nor does it authorize presidential usurpation of judicial authority by executive creation of ersatz courts.

Bureaucratic developments such as independent executive agencies and merit protection were designed to immunize parts of the executive branch from the political control of the elected head of the executive branch, the president.

What the reformers did not anticipate, however, was that over the decades, as presidents with different electoral mandates came and went, yet the Federal bureaucracy soldiered on as designed, voter frustration would increase with a bureaucracy that proved immune to changing voter and presidential preferences. The relative inelasticity of the Federal bureaucracy to changing political preferences is one cause, I would suggest, of the belief in the existence of the “deep state.” This frustration, in turn, has led in part to increasing belief reported in surveys among many Americans, particularly those on the right, that the country needs a “strong leader who is willing to break the rules.”

What critics overlook in their concern for American democracy in the face of a desire for a strong leader is that the initial anti-democratic move, the move that prompted the present populist reaction, was the move to immunize wide swaths of the American national bureaucracy from electoral accountability.

Let me touch on a few items discussed by my interlocutors.

The Unitary Executive Reduces Informational Costs for Voters

Kevin Frazier and I agree on the criteria by which to judge the choice between the status quo bureaucracy, with independent executive agencies and vast numbers of merit-protected employees who influence policy. The irony is that a unitary executive would accomplish the goals he stipulates better than the status quo does.

Frazier writes,

Rogers … works from an idealized conception of voter capacity that assumes citizens possess sufficient information, political knowledge, and civic motivation to fist identify the responsible governmental actors and then translate that assessment into electoral consequences.

The irony is that my argument assumed the opposite of this; my argument—Hamilton’s argument, actually—was that by simplifying institutional structure, a unitary executive reduces information costs for voters and, as a result, improves accountability.

Consider the two most relevant institutional alternatives. One in which a single national-level elected executive—the president—is responsible for the entire executive branch. The other institutional alternative is the status quo, in which there exists a welter of independent regulatory agencies largely immune from presidential control and, in regular branches of the national bureaucracy, most of the staff are merit-protected. This means they remain protected from presidential control.

Frazier argues that “complex lines of authority remain obscured.” That is exactly right. But which institutional mechanism is the more complicated? One can read the answer off from the name itself. A “unitary” executive is obviously the less complex; the alphabet soup of independent agencies and the inelasticity of agency outcomes to changes in presidential administration mean that the status quo is the more complex institutional arrangement.

Frazier next raises the obvious issue of bureaucratic expertise and hierarchical control. This, of course, is an important issue, and a traditional argument for the move from the old patronage system to the current system of protected employment.

The answer requires that we weigh the interest in democratic accountability relative to the interest in expertise.

An analogy might help. In Democracy in America, Alexis de Tocqueville observes similarly to Frazier that “the laws of American democracy are often defective or incomplete; sometimes they violate vested rights or ratify dangerous ones.”

In an eerie parallel to Frazier’s argument, Tocqueville observes that aristocratic governance provides expertise at crafting and implementing policy:

Aristocracy is infinitely more skillful in the science of the legislature than democracy is capable of being. Master of itself, it is not subject to transient impulses; it has long-term goals which it knows how to mature until the favorable opportunity presents itself. Aristocracy proceeds skillfully; it knows the art of making the collective force of all its laws converge at the same time toward the same point. It is not the same with democracy: its laws are almost always defective or ill-timed.

Despite the advantages of aristocratic governance, however, Tocqueville concludes that “democratic government, despite its faults, is still the most suitable of all to make this society prosper.”

Why is that? It’s a matter of what target each group of policymakers aims at. Educated, expert Aristocrats hit the target they aim at with less variance than democratic policymakers. The problem, however, isn’t aristocratic expertise; it’s that aristocrats aim at a different bullseye than do democratically accountable officials. While democratic officials have a much greater spread around the policy target at which they aim, the center of mass is the bullseye preferred by current voters.

To be sure, there is a cost to the loss of bureaucratic expertise. But observing one side of the argument does not mean that realizing a greater alignment of bureaucratic outcomes with democratic outcomes is not worth the cost.

Institutional Choice Beyond My Two Choices

Andy Smarick wants to push beyond the two alternatives I discuss. He writes that the “more interesting question … is whether there are other legitimate systems that are as good or even better than the unitary executive at responding to America’s unique characteristics.”

In particular, Smarick makes a nod toward state-level plural executives and concludes that “the plural executive’s messiness and inefficiency might well be a natural antidote to populism.”

I don’t disagree. I focused on a unitary executive versus the status quo, mainly for tractability in a short essay. If the Supreme Court were to declare congressional statutes that create a plural executive an unconstitutional infringement on executive authority, we would revert to a form of the unitary executive. Nonetheless, I am open to the possibility that the type of horizontally partitioned plural executives that states have, with separately elected executive heads, could be usefully adopted at the national level. It would take a constitutional amendment, however.

That said, there remains a question of the informational complexity of state-level plural executives. That is, whether the proliferation of executives decreases democratic accountability relative to a simpler executive structure. The institutional heterogeneity across the states might be able to give legal and political scholars some empirical leverage on the question of whether increasing the number of horizontally partitioned executives confuses voters relative to fewer executives.

Directing Bureaucratic Agencies & Foreign Policy

John Yoo curiously asserts that “Rogers defines unitary executive … as only extending to the president’s constitutional right to remove inferior officers.” It’s curious because I repeatedly provide a more expansive definition of the institution.

Early on in my initial essay, I define the unitary executive as the institution in which “the president has authority to direct all parts of the executive branch and to fire anyone in the executive branch or, at least, to fire anyone with authority over policy.” I later refer to the unitary executive as placing the “entire” executive branch under the “immediate direction and oversight by the president,” as “presidential authority to direct policy outcomes,” and I note twice that the plural executive form—the antonym of the unitary executive—places executive officers beyond the “direction and control” of the chief executive.

And as the events that gave rise to Humphrey’s Executor demonstrate, the authority to direct the executive branch is predicated on the removal power: The president’s removal power is the inducement for executive branch employees to follow the president’s direction. To be sure, the president cannot exercise power the Constitution delegates to the legislative or judicial branches, but that is different than recognizing that the Constitution generally confers presidential authority over the executive branch.

Yoo is particularly concerned about the president’s authority over foreign policy. He writes, “At the time of the Constitution’s framing, executive power was also understood to include the war, treaty, and other general foreign affairs powers.” However true that may be, the Constitution has more to say than can be deduced merely from interrogating the word “executive” in the abstract.

But here, Yoo’s expansive argument regarding foreign policy ironically runs into Justice Scalia.

Despite Scalia’s full-throated endorsement of the unitary executive in Morrison (Scalia wrote that the Constitution does not accord the president only “some of the executive power, but all of the executive power”) Scalia did not share Yoo’s belief that the Constitution only makes “narrow” exceptions to executive power in foreign policy.

In dissent in Zivotofsky v. Kerry, for example, Scalia wrote:

It turns the Constitution upside-down to suggest that in areas of shared [congressional and presidential] authority, it is the executive policy that preempts the law, rather than the other way around. Congress may make laws necessary and proper for carrying into execution the President’s powers, but the President must “take Care” that Congress’s legislation “be faithfully executed.” And Acts of Congress made in pursuance of the Constitution are the “supreme Law of the Land”; acts of the President (apart from treaties) are not. (Emphases in original.)

Scalia concluded his argument in Zivotofsky with the warning that the Court’s majority opinion “threatens congressional power over foreign affairs with gradual erosion.”

This is not to suggest that the president has narrow executive authority in foreign policy. The majority opinions in cases such as United States v. Curtiss-Wright Export Corp. (1936) and Zivotofsky v. Kerry (2015) demonstrate otherwise. Nonetheless, the president’s executive authority over foreign policy must be construed in light of the whole Constitution.

I think the greater practical challenge to the Constitution’s theory of executive power is found not in limitations on the president’s authority over foreign policy, but in congressional legislation that has statutorily created a plural executive. The statutory creation of a “fourth branch” of the US government represents a congressional usurpation of executive authority and, substantively, has resulted in a diminution of democratic accountability over the national government’s burgeoning administrative state.