The Courts and the Personalist Presidency

On July 1, 2024, the Supreme Court ruled in a partisan 6-3 decision that the president enjoys broad immunity for all official acts. As Nixon told David Frost: “Well, when the president does it, that means that it is not illegal.”

The language used by Chief Justice Roberts to describe the presidency evokes Thomas Hobbes writing of his Leviathan that “whatsoever he doth, it can be no injury to any of his Subjects; nor ought he to be by any of them accused of Injustice.”

The Supreme Court has granted the president the arbitrary power republicans have always feared. Justice Sonia Sotomayor explains in her dissent: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Yet this massive grant of power to the presidency came but a scant few days after the same six justice majority overturned the Chevron doctrine, ending courts’ customary deference to administrative agencies on factual matters. And the court’s July 1 ruling on Corner Post v. Board of Governors only casts administrative agencies’ authority further into doubt by allowing plaintiffs to challenge administrative policies decades after the rules are finalized.

Why grant so much power to the presidency while simultaneously undermining the very foundations of the administrative state? Is the president’s power not drawn in large part from their ability to administer the administrators? At first glance, it seems like the Supreme Court has reinforced one leg of the ‘executive throne’ while whittling away at another. In reality, their goals are far more straightforward.

James Burnham, the Trotskyist-turned-conservative, wrote in his book Congress and the American Tradition that “in historical practice a fourth branch of the government has developed; and a fifth, though non-governmental in origin, has been grafted onto the main governmental trunk.” These supposed fourth and fifth branches? Bureaucracy and lobbyists.

Beginning with the passage of the Civil Service Act of 1883, Burnham argues, the executive branch was divided in two. With the president no longer able to dish out every federal job to their loyal supporters as patronage, and the civil service largely protected from arbitrary dismissal, Burnham says the bureaucracy began to develop its own “will and interests.”

In this view, the bureaucracy represents the state’s legal-rational authority, to crib some terms from Weber. Merit-based, scientific, and systematic, the civil service gains the public’s respect because of its competency. The presidency, on the other hand, is wholly a product of charismatic authority.

As political scientist Juan Linz explained in his article “The Perils of Presidentialism,” as both the representative of a specific political coalition and the nation as a whole, a president is always “tempted to define his policies as reflections of the popular will.” In the American context, scholars of the presidency make frequent reference to the “bully pulpit”: the quasi-mythic ability of the president to speak directly to and convince the people.

If we choose to adopt Burnham’s framing for a second, the court’s mission becomes far clearer. They have spent the past decades transferring power away from Congress, away from the rational bureaucracy, and to the lobbyists, the courts, and the personalist presidency. Bureaucrats might nominally have less discretion now, but thanks to Schedule F they will be hand-picked for their fealty to the president: loyalty supplanting merit.

This transfer of power from a legal-rational authority to a charismatic one is also mirrored in the transfer of legislative power to lobbyists. While it may seem like the business world is inerrably governed by a cold rationality, conservatives have always tended to prefer the small producer (the yeoman, the family business) over the multinational corporation.

A corporation can be guided by the invisible and uncaring hand of the market towards supporting diversity. But small businesses can more easily be run on “old fashioned values,” quietly denying service and employment to any out group they please. A corporation might accept rationalizing its labor relations by means of a union contract. At the local general store, every employee is a member of the family—and can be fired at will.

And if weakening the bureaucracy while giving the president carte blanche remains confusing, take some time to skim Project 2025, the Heritage Foundation’s roadmap for the next Republican president. In its opening pages, the Project 2025 handbook both declares that the “dismantling of [the administrative state] must [sic] a top priority for the next conservative President” and calls for an ambitious president to use their “many executive tools.”

The foreword continues: “The President cannot hide behind the agencies; as his many executive orders make clear, his is the responsibility for the regulations that threaten American communities, schools, and families.” The drafters of Project 2025 and today’s conservative Supreme Court share a vision of the president as tribune of the silent majority. A tribune that must be empowered to sweep aside all those pointy-heads in Washington. As one conservative recently argued in an article published by the far right Claremont Institute, “unpleasant things will have to be done to hold people to account.”

Both might pay lip service to the role of Congress, but they are all too clear that gerrymandering, lobbyists (at least the non “woke” variety), and unchecked presidential power are here to stay.

Between Citizens United and the host of decisions weakening corruption laws, the Supreme Court granted lobbyists almost unprecedented power over the election of public officials. With its decisions in gerrymandering cases, the conservative majority sought to make elections to the most democratic branch of American government a mere post-primary formality. Justice Thomas has gone so far as to set his sights on the Reconstruction Amendments.

Why would the Supreme Court hamstring the administrative state while granting the president wide-ranging immunity? The answer is simple: They believe Nixon should never have been removed from office. They desire a president able to enforce conservative values with no bureaucrats questioning legality or constitutionality and no pesky Congressional oversight. True believers, they want to “drain the swamp” so they concentrate the power to enact revenge in the presidency and the courts that give him sanction.

To borrow from Lincoln’s House Divided speech, “when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places and by different workmen … and when we see these timbers joined together, and see they exactly make the frame of a house or a mill,” it is impossible to believe there was no coordination by the workmen beforehand.

As Trump shares memes accusing his political enemies of treason and calling for “televised military tribunals,” the Supreme Court rules that the president “may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials.” Indeed, the president is found to have “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” and can never be charged for how he uses that official authority.

Even the motives behind use of that presidential authority cannot be questioned. After all, to do so “would risk exposing even the most obvious instances of official conduct to judicial examination” and “cripple the proper and effective administration of public affairs.”

And most egregiously and most obviously, after Trump mustered an insurrection—an assault on the seat of American democracy—the Supreme Court invented a reason to let him off the hook out of whole cloth.

We can look at the timbers that have been laid. We can see the house they make.

Yet the justices somehow still have the gall to cite the Federalist Papers and the Founding Fathers as they defend making the president a king. While accumulating more and more power for themselves and for the president-by-diktat they seemingly desire, they claim to remain just the Constitution’s faithful stewards.

This is despite the Founding Fathers plainly intending (in as much as that matters) for Congress to be the most powerful branch of government, not the courts and not the presidency. See Federalist No. 51: “In republican government, the legislative authority necessarily predominates.”

Burnham wrote that at the time this “seemed rather a self-evident axiom than a conclusion to be argued.” In the incredible work of political history A Necessary Evil, Garry Wills argued that “only a fierce desire to believe can make anyone think that co-equal departments exist in the Constitution, or were ever meant to.”

Still, in the majority opinion Chief Justice Roberts repeats again and again that the Constitutional separation of powers requires the president to be immune from prosecution. On a podcast, Heritage Foundation president Kevin Roberts avers that he knows “the importance of Congress doing its job, but we also know the importance of the executive being able to do his job.” They cite, of course, Federalist No. 70 (written not by Madison or Jay, but by Hamilton the closet monarchist).

Contrary to the Roberts’ claims, this further grant of power to the executive branch will obviously only continue to sap the Constitutional powers of America’s most democratic branch of government.

Trump has openly pledged if re-elected to use his “impoundment authority” to slash government spending. Impoundment, or the ability of the president to refuse to spend Congressionally appropriated funds, has been essentially illegal since the Impoundment Control Act of 1974 was passed.

Now that the president has legal immunity for all official acts, and overseeing spending is almost certainly such an act, what would stop Trump from impounding funds for, say, climate change research? Or gender-affirming healthcare paid for by Medicare and Medicaid? Or just all Medicaid funds to all blue states? Only the empty threat of impeachment.

In Federalist No. 58, Madison wrote that the “power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” Thanks to the Supreme Court, it is a weapon that may very well now be wrested away.

Of course Congress is hardly without flaws, the Senate most egregious among that great number. But it has always remained the most representative branch. One man in the White House can never represent the whole people—to believe otherwise borders on fascistic—but, as Thomas Paine argued, hundreds of regularly elected representatives can begin to approximate a polity.

However, due in part to the Senate, in part to that extraconstitutional check on the democratic will called the filibuster, and in part to the countless protections which incumbents enjoy, Congress frequently remains moribund. The White House, the administrative agencies, and the courts have not grabbed onto power out of boredom alone.

More expansive administrative rule-making and executive orders have proliferated because Congress has chosen, time and again, to delegate the specifics of policy to the executive branch. Executive authority remains unchecked because presidential impeachment is a dead letter. Thanks to the undemocratic nature of the Senate, not even an insurrectionist could be removed from office.

With each year that Congress, by right the most important and powerful branch, remains unable to actually legislate and to govern, the judiciary and the executive grow ever more power hungry. Even as the Supreme Court smugly states that Congress is “of course always free to act by revising the statute,” in reality they have simply wrested the ability to interpret what laws do get passed away from the agencies tasked by Congress with executing them.

Like a tick swollen almost to bursting with blood, the Supreme Court now rests comfortably with its stolen power, waiting to loan it to a conservative president. And until Congress can reclaim its rightful place as the most powerful branch by rejecting the intrusions of both the courts and the presidency, the Supreme Court will keep feeding.

As the Heritage Foundation president threatens: “we are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”

Featured image is The Presidential Conjuror, by Joseph Ferdinand Keppler