John Dickinson had a more expansive view of the right of free expression than his contemporary, the English legal authority William Blackstone.
If scholars of American government are like blind men trying to describe our ever-evolving elephant, what is most striking about scholarship in recent years is how many of us, making very different approaches to our subject matter, have been grasping for similar descriptors.
It would be wrong to suggest that these are merely different names for exactly the same underlying phenomenon. Those groping around the presidential head feel different textures than those who approach from the welfare state flanks or the regulatory rear. But there is something going on with our elephant that all of these scholars are describing in closely related ways.
It is something more than the rise of the executive at the expense of Congress—a historically familiar story that periodically recurs—though that is assuredly a large part of it. Our interbranch struggles have a cyclical nature by constitutional design, and we are probably nearing a relative maximum of executive power. That a growing chorus of voices expresses dismay at this signals our place in the cycle, and perhaps helps to create the conditions required to execute a turn.
But the critical assessments of contemporary government noted above are identifying something deeper about our current state of affairs. If we think about power ebbing from one central policymaking institution and flowing into another, our diagnosis will be of imbalance and our prescriptions will be for rebalancing. We need a good deal of that at present. But the deeper and greater problem is—if I can be forgiven for adding yet another label to the already lengthy list—decoherence.
I have borrowed this word from quantum mechanics, a field about which I understand very little. But decoherence means something like the following: Elements of a system that had been interacting become disconnected from each other, no longer sharing information. This decoherence represents a threat to (not-yet-existent) quantum computers, which would depend on “the undisturbed evolution of quantum coherences.”
Setting aside what on earth that means for subatomic particles, which I am not remotely qualified to answer, the analogy to the current state of the federal government ought to be clear enough. In our ideal of government, policies are linked together through a seamless fabric of law and harmonized as part of a coherent policy vision (or at least made to avoid blatant internal contradictions).
It is fair to ask how close any polity has ever been to that ideal, but we can nevertheless confidently assert that in recent years we are experiencing a rapid trend toward decoherence, in which policies emerge (from new laws and old, and sometimes with very little connection to law at all) haphazardly, without any semblance of hanging together as a coherent whole. As demands for government involvement have totalized, there has been no corresponding rise of a superintending force for coherence. We get accumulation of policy particles disconnected from each other coupled with a political system that seems overwhelmed just by demands to create more, let alone showing the competence or inclination to impose some kind of order.
For all of the familiar reasons why the rule-of-law ideal is worthwhile, decoherence is corrosive. As Hayek’s Constitution of Liberty (1960) describes, when the state acts neutrally and predictably by promulgating and adhering to clear rules, the exercise of its authority is rendered tolerable to citizens ordering their lives freely in spite of the presence of coercion. This is the only reliable way for the state to overcome suspicions of arbitrary favoritism and earn the trust and loyalty of its citizens. When government makes frequent reversals of its own policies and exemptions to its own rules, or seems to respect the rights of some groups but not others, it is bound to seem capricious and lose its legitimacy.
The government itself should have another reason to avoid decoherence: It is anathema to effective administration. Especially for the federal government, which most often acts through cooperation with other entities (contractors, state and local governments, private firms), being a reliable partner is critical to being able to accomplish policy goals. When government’s conduct is mercurial, partners become defensive or adversarial and potential partners become wary. This was quite apparent in the financial crisis that struck in 2008. Many private firms were eager to accept the government’s offers of credit or even to become its investing partner, but they were often scared off by the prospect of having to deal with officials unable to articulate a consistent approach and susceptible to violent political mood swings.
As I explain in To the Edge, one might see decoherence as a natural outcome of tendencies inherent in liberal, pluralist democracy. This was the prophecy of the infamous Carl Schmitt, whose 1932 Legality and Legitimacy diagnosed legislature-dominated liberal orders as utterly incapable of meeting the demands of crises, and perhaps even the tasks of economic management for which they were taking responsibility as he wrote. Lack of legislative dexterity would lead liberal societies to embrace what Schmitt called an “administrative” form of government based on ad hoc decrees designed to respond to the needs of the moment.
Such a system might be able to muddle through, at least much of the time, but Schmitt emphasized that it would find itself unable to secure legitimacy for its actions. When policies succeed, this may not be a problem, but (for obvious reasons) that cannot be relied upon. For outcome-independent legitimacy, officials search “indiscriminately for legalizations, legitimations, and sanctions, making use of them as [they find] them,” but the very arbitrariness of this process erodes citizens’ belief in the deep congruence between “law and statute, justice and legality, substance and process.” In other words, decoherence of policymaking leads to decoherence of politics; in Schmitt’s oracular telling, this will lead to total dissolution of the state or the rise of some more viable alternative rooted in a single leader’s plebiscitary connection with the people.
Which, for Schmitt’s Weimar Republic . . . didn’t go so well. As constitutional government gave way to dictatorial rule by decree, Schmitt fatefully threw in his lot with the Nazis and thus secured everlasting obloquy. For those of us who revere the rule of law and the legislature-centered state’s ability to maintain it, it is therefore tempting to dismiss Schmitt’s challenge out of hand as an invitation to a hateful totalitarianism. But we ignore the accuracy of his prediction at our own peril.
For whatever reasons, we really do live in a country governed by kludge, by deal, by ad hoc improvisation: for workaday matters such as labor law, drug approval, housing finance, and the tax code; on blockbusters like climate change, the Internet, immigration, education policy, healthcare; and even for our core governmental functions of financial crisis-fighting and war-making. The government’s staunchest defenders may be able to convince themselves that there are no real legal problems on any of these fronts, but neither they nor anyone else could possibly see a coherent policymaking system at work. Coherence-producing legislation is generally nowhere to be seen; when Congress lurches into action, it tends to produce what Michael Greve and Ashley Parrish call “hyper-legislation,” relying on “highly convoluted, poorly considered, and often incoherent statutes” that leave things messier than they were and bring legitimacy problems of their own.
Given this context, Schmitt’s warning about administrative government’s legitimation deficit ought to ring very loudly in our ears; we must wonder whether a government operating in this way, so far from our constitutional design, can long endure.
Or must we? Some little-c conservatives argue that it is only utopians who aspire to impose a coherent vision on something as variegated, contingent, and historically evolved as a government. Coherence is Paine; parochial untidiness reflecting the multiplicity of citizens’ legitimate concerns is Burke.
This perspective is usefully fleshed out by William Schambra in a 2009 National Affairs article arguing that President “Obama is emphatically a ‘policy approach’ president,” which Schambra means as an insult. The term is drawn from a 1970 Daniel Patrick Moynihan essay in The Public Interest in which the White House counselor and future senator argued for the superiority of comprehensive institutional plans anchored in deliberate policies compared with cobbled-together programs only loosely connected. Just as we aspire to a single “foreign policy,” albeit with many moving parts, we should aspire to have policies for poverty, interstate highways, and education. In my terminology, Moynihan was making a brief for coherence in each of these fields.
What Moynihan praised, Schambra suspected. In Obama’s administration, Schambra discerned an ambition to govern “not just addressing discrete challenges as they arise, but formulating comprehensive policies aimed at giving large social systems—and indeed society itself—more rational and coherent forms and functions.” To his eye, taking a “policy approach” and Progressive utopianism were of a piece, with the former just a good rhetorical turn by which supercilious social scientists and politicians justified their ambitions.
But we do not face a choice between a policy-aspiring and overreaching federal government and a Jeffersonian world of small, close-knit communities taking care of themselves. Instead, we inherit a set of costly, interventionist government institutions that we must grapple with. When we forsake the need for coherence, we do not find ourselves in a happy republican world in which the central government busies itself solving discrete problems that percolate up from local communities. Instead, we get a government that haphazardly attends to the wheels of our federal whirligig when they squeak loudly enough.
The political energy for statutory maintenance is often sucked up by “issue networks” of federal contractors and their policy wonk allies looking to shore up their existing positions. (Schambra discusses these, but seems to think that it is impossible to conceive of a policy view that would transcend their perspectives rather than entrenching them.) The loudest and most effective agenda-setters for novel projects, meanwhile, tend to be institutionalized ideologues, not humble folks aggregating their mundane but pressing concerns.
All of this does not add up to a problem of too much coherence of vision for our policy institutions. As Moynihan noted even back in 1970, the policy view is effectively thrust upon us whether we like it or not, as programs nominally dealing with just one problem end up spreading a distorting web over wholly unrelated fields. Forty-five years of program accumulation later, in a polity saturated with federal regulatory statutes that Moynihan could hardly have envisioned when he wrote, incoherence is an even more pressing problem. Conservatives should not be allergic to coherence just because they are rightly suspicious of some reformers’ urges toward comprehensiveness, uniformity, and thoughtless centralization.
Deliberation Is a Virtue
How, then, can we bring about a government that operates less by deal, kludge, and ad hoc improvisation and more by fashioning coherent policies?
The most straightforward way would be to revive Congress as the fount of legislative orderings and the legitimator par excellence, two roles that have seemed quite alien to it in recent years. We must find a way to make “politicians in Congress” sound less like a slander and more like a noble calling that involves understanding and fairly weighing citizens’ complex concerns, bringing those concerns to our shambolic system as we find it, and accordingly fashioning clear reform strategies that combat decoherence, at least at the margins.
In a wonderful essay that appeared on this site two years ago, Greg Weiner laid out a case for Congress as the only organ of government capable of “registering” public opinion in its “variegated and pixelated” form. Weiner went so far as to say:
Congress can handle issues with a surgical suppleness characterized by compromise and accommodation that is foreign to the up-or-down, with-us-or-against-us mentality of the Executive Branch. It can be sensitive to the relative intensity of minority views.
This is a stirring paean to the virtues of legislative deliberation, which are to be understood as flowing out of balkiness and parochialism rather than somehow achieved in spite of them. And it is very hopeful, because it implies that in order to play their role well our representatives need not bridge their seemingly unbridgeable differences, but only honestly engage each other while being true to their home districts’ concerns.
And yet, it is hard to believe that Congress today is anywhere near fulfilling that vision—or that pressures from the public can help it get there. As opposed to the executive’s tendency for “secrecy and despatch,” Weiner attributes to Congress “publicity and prudence.” But in our current age of legislators posturing not for their constituents back in Houston or Holyoke or Hartford, but for national constituencies of amateur activists, the “publicity” so central to congressional life makes an awkward partner for “prudence.”
While partisan concord is hardly a prerequisite for a well-functioning legislature, it is necessary for politicians on opposite sides of the aisle to see themselves as sharing an institutional preference for coherence. Instead, today it often looks as though we have what Daryl Levinson and Richard Pildes characterize as a “Separation of Parties, Not Powers,” in which institutional imperatives are always trumped by partisan ones. With our national politics so often driven by enmity and a vague sense that the other side’s full participation in governing is itself illegitimate, it is hard to see exactly how the two parties in their current form can come to a working relationship.
It also must be said that it isn’t clear how many members of Congress are prepared to even conceptualize the problems posed by decoherence. “Executive power run amuck,” “rise of lawless technocrats,” and “Washington unresponsive to regular folks”—all of which have a good measure of truth to them!—are much more familiar narratives, and act enough like the symptoms of decoherence to make that underlying cause obscure. (The lack of a common label for the problem also doesn’t help.) Working for coherence does not fit into any of the versions of populism now on the rise, and indeed gives off enough of a whiff of the esoteric to make it suspicious to people speaking in those terms.
So if there are ample reasons to be skeptical of congressional revival, what then?
Discretion and Legitimacy
Can the executive branch itself provide the solution—and in doing so, prove Schmitt’s misgivings about the administrative form of government wrong?
There are certainly some smart and learned people willing to make that case in various ways. First there are the deans of administrative law, Jerry Mashaw and Peter L. Strauss, whose majestic bodies of work I take to be dedicated to the proposition that yes, government today is very complicated and opaque to outsiders but, no, this does not represent a genuinely new development nor a threat to republican government, it is and has always been the way of the world, even in America, get used to it. I imagine these scholars would emphasize that coherence is ever an ideal, not a reality, and that the kinds of coherence we do have are every bit as difficult for outsiders to understand as in the quantum realm, but no less real for that. Given my own body of knowledge (or lack thereof), I find this position very hard to shake off with conviction, though there seem to be good reasons for skepticism.
Explicitly applying this mindset to some of the trends that have unsettled contemporary critics of executive government, David J. Barron and Todd Rakoff gamely argue “In Defense of Big Waiver.” They assert that Congress actually empowers itself when it gives the executive so much discretion about when to enforce the law, by allowing itself to try new mechanisms or venture into new fields where it cannot be sure of the results. By allowing for prudential tailoring on the ground by the executive, Congress can be sure that its rules will not be too onerous in practice, even when assumptions underlying them prove mistaken. Similarly, in his many opinions supporting executive branch flexibility, Justice Breyer often seems to imagine that Congress sees the executive branch’s ability to figure things out as it goes along as an unmixed blessing, the engine that keeps government moving ever forward in spite of the unceasing obstacles its plans inevitably encounter.
Note that these defenses focus almost entirely on questions of administrability rather than questions of legitimation; they fail to tackle Schmitt’s challenge. These are consummate lawyers reassuring the laity that the professionals will figure the law out if only meddling ideologues will stay away. My sense is that few people are terribly comforted, however. If only those who have attained the perspective of a learned administrative law scholar can appreciate the soundness of the justifications for government actions, that is an awfully thin reed on which to balance a broader legitimacy. One of the virtues of coherence is legibility—not just for an esoteric group of scholars, but for the mass of civically literate people in the country. (However one may estimate that group’s size, it is considerably larger than the world of AdLaw scholars.)
To be sure, the current incarnation of the executive branch does make gestures at broader legitimacy. As Weiner noted in his essay, the executive is very quick to point out that at its head sits the only nationally elected official, whose plebiscitary legitimacy must surely be obvious to everyone. As the various arms of the federal octopus tend to their programs with little regard for coherence, the President rhetorically pulls these efforts together under umbrellas of freedom, justice, the American way. Sometimes this is effective, but often the mismatch between professed ideals and grubby practice makes the public understandably cynical.
Although the President seems like the ideal source of coherence, looks and language can be deceiving. Imagining the President (or even the implied collectivities “the Presidency” or “the White House”) as architect and manager of all simultaneous developments is far too optimistic. To my mind, pace Schambra, President Obama only holds himself forth as a “policy approach” President; his commitment to coherence is almost wholly rhetorical, while in practice he has acted as an enthusiastic enabler of adhocrats. The Affordable Care Act and the Dodd-Frank Act, both shaped far more aggressively by the committee chairs in the 109th Congress than by the White House, could only appear to fit the “policy” approach to someone unacquainted with their particulars; they are hodgepodges through and through. Obama and his immediate predecessors have all lacked the wherewithal to reboot, consolidate, or impose coherence on any meaningful scale. Their failures on this front almost certainly represent systemic, rather than personal, deficiencies.
If one really needs evidence of the legitimacy problems that decoherence entails, just look across the Atlantic at the good ol’ U.S. of E., where executive-dominated adhocracy hitched to the loftiest of rhetoric is even more the rule. At some point, people in nominal democracies will cease to tolerate the growing sense that officials they did not elect are deciding their fate, not even according to some set of clear principles but quite obviously by the seat of their pants.
Government by Judiciary
If the legislative and executive branches are unequal to the task of fighting decoherence in its many forms, are courts the answer?
Many conservatives fervently believe that they should be, given judges’ natural commitment to preserve the integrity of the law. But if we evaluate the judiciary as a stand-alone force to oppose decoherence, judges are very poorly qualified.
First, of course, they are structurally reactive and disunited, which means it is difficult to get them moving in the same direction all together. That makes them ill-suited to deliver anything like coherence. Second, many parts of the adhocracy are adept at staying out of court altogether. Most programs use carrots far more than sticks, taxpayers lack standing to sue for generalized losses, and so the judiciary is an afterthought. Third, and by far most important, there is a mountain of evidence suggesting that judges themselves don’t want this job. Justice Thomas’ concurrence in Michigan v. Environmental Protection Agency (2015) notwithstanding, America’s judges are committed to letting the executive branch do its thing, legal coherence or no. Like many other Americans, they see power vacuums and dutifully abhor them; when the executive offers something to fill them, most judges readily sign off.
Probably judges could play a constructive role if it were selective and subtle. I am not the person, and this is not the place, to elaborate on that—the aforementioned Greve and Parrish piece, “Administrative Law Without Congress,” and their “plea for more institutional realism and less interpretive metaphysics in administrative law” is a good jumping off point. If judges recognize the problem of decoherence, they may be able to opportunistically nudge the political branches toward corrections, but there should be no illusions that this would turn things around on its own.
Are “the people” the answer? Oh dear, aren’t they always, one way or another. But, to paraphrase a leading aphorist of our times, you go to politics with the citizenry you have, not the one you might want or wish to have at a later time. And it’s hard to imagine how decoherence could motivate a broad-based political movement, even in theory.
Solving the Congressional Riddle
In the peroration of his famous concurrence in the Steel Seizure case of 1952, Justice Robert Jackson wrote the following:
If not good law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. (343 U.S. 579, 654 – with thanks to this excellent Neal Devins article touching on related themes.)
What is true of emergencies turns out to be true of nearly all of the most fraught policy issues of the day: The power to legislate coherent policy for immigration, Internet regulation, financial crisis response, and on and on, belongs in the hands of Congress. How we can shock our legislators into making use of that power is the preeminent riddle of governance in our time. I have laid out the reasons for pessimism above, but I am dispositionally (and patriotically) an optimist. Suggestions welcome.