J.P. MacKenzie's Absolute Power
Power, uncontested Chief Executive power...
John P. MacKenzie: Absolute Power — How the Unitary Executive Theory is Undermining the Constitution. New York: Century Foundation Press, 2008.
How is it that Silent Friends, typically devoting its tidy columns to fiction, a little poetry, and the occasional theoretical tome, now posts a lengthy letter about a short policy monograph commissioned by a nonprofit thinktank in the wake of the George W. Bush administration?
It’s because Trump 2.0 in its first month has drastically broken not only from the first Trump term but from all norms of bourgeois politics.
He has initiated a rupture with the NATO bloc (as covered, with no chill whatsoever, by Adam Tooze on his newsletter), while at the same time unilaterally negotiating with Putin over the Ukraine war, floating a deal that could potentially railroad Ukraine into becoming an economic colony, conceding all its mineral resources.
With those two things the USA’s standing as the global hegemonic power, already in decline, has gotten a sizable downgrade.
Trump has accelerated the genocidal imperialist rhetoric against the Palestinians, proposing the annexation of Gaza as a “Good Job” award for the Israeli far right — and how literally or seriously are the Arab states (particularly Abraham Accord signatories Saudi Arabia and the UAE) and Iran expected to take it?
And he won’t stop there: stealing Greenland, controlling the Panama canal — perhaps in a year the news cycle will be dominated by Canadian partisan warfare against Trumpian shock troopers among the maple trees.
There is a new world order on the horizon, decidedly less “rules based” (though how true was that?), and decisively more illiberal. War with China seems horrifyingly conceivable.
Domestically the situation is no less chaotic. Through a historic flood of executive orders, the fluid and malevolent entity of T2 is usurping the power of the purse away from Congress, and assuming the power to hire and fire government workers without probable cause. His illegal firings have knee-capped the NLRB and other federal agencies.
ICE has been entering workplaces, knocking on neighborhood doors, terrorizing undocumented workers — the hardest-working section of America’s working class — as well as students on visa who happen to be involved in political organizing.
Meanwhile that rightwing technocRAT Musk and his DOGE band of pirates run riot through the federal structure, violating the right to privacy and the devil knows what other protections, stripping away regulations of finance, of environmental impact, education policy, the FDA, the FAA, the USDA….
Welcome to the naked, unbridled rule of capital.
Brought to you by the most odious figureheads of the big tech monopolies and the most unscrupulous right wing warmongers.
Trump has pardoned those who took part in the January 6 incident. That is, the ultra-reactionary Proud/Boogaloo Boy veterans are back on the street, in the country with by far the greatest amount of guns per capita. That is, the initial conditions for the emergence of armed fascist squadrons.
All that’s needed for a full authoritarian crisis is just one more “push,” and an economic crisis driven by overproduction in petrol, or inflation, or other effects of the new trade war could be just the ticket.
And what has the Democratic Party been doing to resist this unprecedented rightwing assault on the federal government, on the American administrative state as we’ve known it since the New Deal, and on the rights and freedoms of the most vulnerable sections of our society?
The same thing they’ve been doing:
NOTHING.
In fact they have achieved a new level of cynical fecklessness after the ignominious failures of Genocide Joe Biden, who will go down in the future history books of the Decline and Fall of the American Empire as the Yankee equivalent of the Mad King Ludwig of Bavaria.
No one has been able to stop this President who is not too bashful to act first and let the litigation clean up after. Like a runaway Caesar, the POTUS is making the law off the cuff and executing it the same manner, bringing its force to bear at its will and pleasure.
Where in the world of American civics could the basis or conditions of this situation have come from?
The answer is in large part supplied by a liberal thinktank essay, reporting on a fringe rightwing legal theory, one that, like “multipolarity” has been launched from the margins to the very top of the agenda. That would be the Unitary Executive Theory.
You may recall that the US government shares power between three branches, the Executive, the Legislative (itself divided into the lower House and upper Senate chambers), and the Judicial branches. Legislature makes laws, Judiciary interprets laws, and the Executive, well, faithfully executes the laws. That’s how it’s supposed to work on paper.
But starting the mid-1980s, politicos close to Ronald Reagan began developing a new discourse: not just the separation of powers, but separation of powers with a unitary executive. What makes the executive office a unit? It’s a unit in both breadth and depth, that is, (1) the Chief Exec has no real bind to Congress, and (2) is endowed with absolute powers in war and foreign policy.
Now, your host is no lawyer, just a simple cawntry Substacker — but even I know that if you want to maintain a legal argument, the best way is to search the literature for a precedent.
Where in the foundational theoretical documents for the Constitution, namely The Federalist Papers, would the framers — who had just concluded a national war of independence against a monarchy — propose investing the chief executive with kingly powers?
The Unitary advocates zero in on Federalist co-author Alexander Hamilton, who MacKenzie accurately describes as a “closet royalist.” Hamilton served the aristocratic right wing of the American revolution. He despised the Articles of Confederation (which to be fair was terribly decentralized) for not differentiating the executive from the legislative (he would have called it Communist, if that sense of the word had existed in the 1780s). But he didn’t just want a Chief Executive: he wanted a hereditary one with maximum powers — monarchy in all but name. He dropped his insane proposals and went along with James Madison and John Jay mainly out of political discipline.
This is just one more reason to despise that awful Broadway show by Lin-Manuel Miranda, which I’m now convinced was a psychological operation to revise US history, so that Hamilton comes out as the progressive representative and Jefferson the backward representative of the American political revolution, when the historical reality was more like the opposite!
But even considering all that, the UET folks have no effective argument from Hamilton. (We will call it UET instead of ‘unitarian’ because the latter feels insulting to the unitarians and universalists.)
The argument trades on a pedantic reading of a single clause in Federalist 70 by Hamilton (about the “energetic” character of the Exec), and a reaching reading of Article II of the federal charter. In retrospect it’s not worth reproducing, though MacKenzie does a great job arranging the facts: the historical trend of presidents expanding the executive powers, from Jackson (“now let Marshall enforce his decision”), Lincoln’s Emancipation Proclamation, FDR and the construction of the New Deal state, Truman’s attempt to nationalize steel to fight in Korea, Nixon (“If the President does it that means it’s not illegal”); and the landmark court cases in which reactionary Justice Scalia and Justice-to-be Alito gave UET a toehold in their opinions in the late 80s, as well as other arguments made in the DC Circuit.
I remember learning about the sacred cow of separation of powers in middle school civics. Even then it struck me as odd in a vague way. After all, Bush II had just declared war on Iraq without Congress, which was illegal. But Congress wasn’t mad, they were rattling the sabers and gibbering about “weapons of mass destruction” like everybody else.
What my pea-brained, 8th grade self sensed intuitively was the standard pattern in American federal governance: the Executive expands and consolidates power, regardless of which of the two parties controls it, and the Legislative voluntarily gives it up. (MacKenzie explains the customary gridlock of the modern Congress by pointing out that party loyalty beats concern for the institution most of the time.)
As MacKenzie illustrates, Bush II was the second great acceleration of UET, as the rationale for executive empowerment after 9/11, creating that long nightmare known as the War on Terror. The War on Terror’s existence became the rationale to justify maximum Presidential war powers, including the power to target foreign countries (hence Afghanistan). The maximum war powers of the President were used to argue that the Geneva Conventions do not apply to people detained in the War on Terror (without writ of habeas corpus).
And so there was Abu Ghraib, and the picture of the hooded man, which I first saw when I was thirteen years old. And a mythology of American patriotism started to unravel.
Along with the stains of torture and Guantanamo Bay, there were civic scandals driven by UET, like Bush’s boys Card and Gonzales extracting approval for their intelligence gathering program from Attorney General Ashcroft on his hospital bed.
If Hamilton was a closet royalist, then John Yoo, the architect of the Bush admin’s satanic torture doctrine, was an outright neo-monarchist holding high the banner of UET. “John Yoo, the prolific, driven expounder of the more expansive version of the unitary executive theory,” MacKenzie writes, “saw the presidency in decidedly royal terms.”
He argued in a 1996 law review article that, contrary to the understanding of most Americans, the Constitution’s writers admired, not scorned, the war prerogatives of the British king.
This was a primal, shocking misreading of basic American history. Yoo proclaimed that his view of the war powers framework created by the framers “differs sharply from that envisioned by modern scholars.”
Contrary to the text of the Constitution’s assignment to Congress of the power to declare war, Yoo claimed that the framers looked to England for a structure “designed to encourage presidential initiative in war.” Approvingly noting that many American wars were undeclared, he said Congress’s role was conferred “not by the Declare War Clause, but by its power over funding and impeachment.” Its job was to fund a war, or if dissatisfied with it, to de-fund it.
The Constitutional Convention actually loved King George — and this topsy-turvy claim by the UET is buttressed by appeals to “originalism,” another feeble theory for Constitutional interpretation that passes for a “school of thought” in our decadent imperialist society.
Both branches of unitary executive thinking [a quibble over whether UET describes the scope of executive powers or defines the powers themselves —Ed.] must stand or fall as originalist; that is, if the founding fathers did not envision the theory, then it must have developed somewhere else—by way of historic usage, through evolution under a “living” Constitution, or the imagination of the theorist. The problem with Yoo was not that he was an originalist, just that he twisted originalist history.
UET is also used to justify the chief executive’s right to secrecy and insulation: “The unilateralist executive does not enjoy asking leave.” State secrets privilege is used to deny info to legislators or cover up evidence of corruption.
In the final section of his essay, MacKenzie writes:
The unitary executive has come a long way for a theory that has a hole in its heart and no basis in history or coherent thought. It simply is devoid of content, not expressed or even strongly implied in foundational documents such as The Federalist, not to mention the Constitution.
It’s not just “intellectually” that UET has come a long way: it started in the effort by neocons to reinforce and expand US hegemonic power. Today, it is martialed to co-manage that power’s tactical retreat from the world stage, while the country’s industrial capacity continues to circle the drain, as it has done since the Obama years (despite the shale boom and the AI bubble).
Way back in the Philadelphia Convention of 1787, delegate George Mason spoke against the federal constitution, saying that if it should go into effect, it would produce “a Monarchy, or a corrupt oppressive Aristocracy.” Did the American experiment end up in a Monarchy, or a corrupt Aristocracy? The answer turns out to be: Yes.
MacKenzie’s case is thoroughly convincing that UET has nothing whatsoever to do with American governance as it was conceived. As far as what can be done in the current crisis, it’s pretty much up to the courts. But the SCOTUS is an assembly of rightwing ghouls: will they sanction the desiccation of the state if given the chance, or focus on protecting their branch?
In any case, we should be indifferent to this narrative that the modern imperialist state is some lamentable corruption of the framers’ experiment in “responsible” republicanism and the separation of powers doctrine.
Our yardstick is not the Framers of some ancient, compromised bourgeois document that couldn’t even abolish chattel slavery. Our yardstick comes from the Founders of Communism.
And they would negate the argument that the Separation of Powers was some pure enlightened idea that popped into Montesqueieu’s head. “The ideas of the ruling class are in every epoch the ruling ideas,” Marx and Engels famously wrote in The German Ideology: “i.e., the class, which is the ruling material force of society, is at the same time its ruling intellectual force.”
Ruling ideas express the relationships between really existing ruling class forces. And what concrete example did Marx and Engels use to illustrate this point? Well by golly, it was the Separation of Powers doctrine:
For instance, in an age and in a country where royal power, aristocracy and bourgeoisie are contending for mastery and where, therefore, mastery is shared, the doctrine of the separation of powers proves to be the dominant idea and is expressed as an “eternal law.”
When a three-way division of labor became necessary for these contending social forces, the checks and balances system was proposed. Montesquieu conveniently believed in achieving political stability independently of economics (maybe that’s why Althusser liked him so much). So his proposal was taken up as a natural universal law like so many other bourgeois inventions.
But the nature of the state system itself has changed, from the laissez-faire “nightwatchman” image that still gets crammed down our throats, to becoming the instrument of the ruling capital holders, to becoming the imperialist system exploiting and oppressing the world’s people on behalf of monopoly capital. Today the US is rapidly transforming into a scraggly entanglement of Big Tech, armed forces, and a state administration gutted of everything but the means to police the masses and fortify private property.
Throughout this historical evolution the executive has consistently enlarged itself against the other two branches. UET didn’t have to work hard as a rationale for the process because it is built into the history of advanced capitalism.
At a time when antiwar activists have been smothered by the capitalist state and organized Zionism, Latin American workers and children live in fear, and national trade union density continues to decline, we need to be sober about how defenseless the people currently are against this salvo of class warfare. It’s still a cold winter.
The first step to turning the catastrophe around is self-education in politics and socialism, till we have the clarity necessary to out-organize the fascists.
As for your host, I plan to keep writing, and the broligarchs will have to send some Boogaloo bois to enter my home, slip a hood over my head, drive me to the nearest derelict Spirit Halloween store, and put a bullet in the base of my skull to make me stop!
Sic semper tyrannis, and all that.
