The Growing Power of the President
And the Immense Power of Grand Narratives
1.
I have two topics here. The first is the massive expansion, now under way, in the power of the president, with the enthusiastic approval of the Supreme Court. As we will see, there is a mystery here.
The second is the immense power of narrative, and in particular, the immense power of narratives in constitutional and political life. Human beings tend to live by stories. Some stories “click.” They get under the skin. They organize our judgments. That is one reason that novels and films have such power. It is also one reason that history goes in certain directions.
To paraphrase Orwell, those who control the past control the future. To quote the man, “Who controls the past controls the future: who controls the present controls the past.”
2.
Ok then: For a number of years, a majority of the Supreme Court has accepted a Grand Narrative. According to the Grand Narrative, the United States has seen successive violations of Article I, Article II, and Article III of the Constitution. The reason? The rise of the administrative state.
With respect to Article I:
The Constitution grants legislative power to Congress, not to anyone else. And yet, the executive branch now wields massive discretionary power. It makes law! That is unconstitutional. It violates the “nondelegation doctrine.”
The breach of Article I was conspicuous during the New Deal (the villain of the Grand Narrative). It has gotten much worse since that time, with the Great Society. The EPA, the FTC, the FCC, DOT - all these, and more, have become lawmakers, in violation of Article I.
With respect to Article II:
The Constitution vests executive power in the president, not anyone else. It creates a unitary executive. And yet, Congress has created independent agencies, exercising executive power without presidential control.
Since the late 1800s, we have seen a host of such agencies - the FTC, the FCC, the NRC, the CPSC, and many more. That is flatly unconstitutional.
With respect to Article III:
The Constitution vests judicial power in federal courts, protected by life tenure. It does not vest judicial power in anyone else. And yet, Congress has granted judicial power to a host of executive officials. The SSA may be the most visible example, but we can find the practice all over the place. That is flatly unconstitutional.
Here, then, is the Grand Narrative (consisting, as you can see, of three grand narratives). The Constitution established certain institutions, constitutive of the system of separation of powers. We have not kept faith with what the Constitution established. We had better start doing that.
3
In 2018 or so, it would have been fair to say that the three grand narratives stood on equal ground. Each of them had traction within the Court.
I have worked in the executive branch on three occasions, and here’s what I can report.
Presidents tend not to like the first grand narrative - not at all. If the nondelegation doctrine is revived, they will lose some of their discretionary power and maybe a lot of it. Why would a president welcome that?
Presidents tend to like the second grand narrative - a lot. In general, they want to be able to control the independent agencies. (This is a bit complicated, but let’s bracket the complications. Hey, it’s substack, after all.)
Presidents are ambivalent about the third grand narrative. If it means that adjudication shifts from the executive to the courts, they tend not to like it. If it means (somehow) that presidents get to control administrative adjudication, they tend to like it.
What I want to emphasize (and so repeat and italicize): In 2018 or so, each of the three grand narratives had substantial support on the Court, and hence the Grand Narrative was ascendent.
4
Fast forward to 2026. If the three grand narratives were in a horse race, one is Secretariat: The one involving Article II.
For clarity on the point, see this:
One of the three grand narratives is limping along: The one involving Article I.
One is running pretty well, though way behind Secretariat: The one involving Article III.
This is a dream situation for the current president (and for any president, I think). The grand narrative that the White House likes least is not getting much traction. The grand narrative that the White House likes most is about to triumph.
A little more detail: The Supreme Court has shown no interest in reviving the nondelegation doctrine. Things can change, but the majority now seems unenthusiastic about it.
But as everyone (?) knows, the unitary executive, consistent with the grand narrative involving Article II, is ascendent, and has been broadly endorsed. Almost certainly, the Court will wholeheartedly (or almost wholeheartedly) embrace it in the coming months.
5
What are we to make of this? That is, what are we to make of the fact that the president is getting essentially what he wants here, even though the Grand Narrative, writ large, had things in it that he did not want at all?
Any answer is speculative. Here are a few speculations:
A majority of the Court believes, in good faith, that on originalist premises, the grand narrative involving Article II is essentially right; that the grand narrative involving Article I might not be right; and that the grand narrative involving Article III raises many puzzles, which just have to be sorted out. So: It’s the Constitution, stupid.
A majority of the Court believes that as a matter of constitutional structure, understood in light of contemporary imperatives, the argument for the unitary executive is very, very, very strong, and that the argument for the other two grand narratives is much less strong. In particular, revival of the nondelegation doctrine would create a national mess. The Court should not create a national mess.
The current president has been bold. He has pressed hard and fast on the grand narrative involving the unitary executive. The Court could not avoid the issue. It is ripe. With respect to the other two grand narratives, there is much less action out there. The Court decides the questions that are presented to it, and hence section (4) of this post.
It’s the current president, all right, but for a different reason. The justices act in good faith, but they know what time it is, so to speak, and they cannot help but be influenced, in separation of powers cases, by the identity of the current White House. (Some data supports this unfun, unpleasant speculation. See https://chicagounbound.uchicago.edu/journal_articles/1664/.) So: It’s no coincidence that a Republican-appointed majority of the current Court is delivering, to a Republican president, exactly what he wants. (Yuck.)
We need to get more refined than (1) or (2) and count votes. A majority believes, in good faith, in the unitary executive, and so the success of that grand narrative is unsurprising. Chief Justice Roberts, Justice Barrett, and Justice Kavanaugh do not agree with, or are at least unsure about, the grand narrative with respect to legislative power. With respect to Article III, it’s just messy. Hence we see what we see.
In the end, I think that (5) is correct.
6
We see narratives all over law and politics. MAGA is rooted in a narrative. So was the Great Society, and so was the New Deal.
When the Court struck down affirmative action programs, it did so by reference to a narrative. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4498466
The Lost Cause was a narrative. The removal of Confederate statues was rooted in a narrative. In constitutional law, progressives have their own narrative, involving “promises” and “commitments” and their ultimate realization. Brown v. Bd. of Education was rooted in a narrative, and it helped to spur plenty of narratives (involving, among other things, sex equality).
Many of the most congenial narratives (I think) take the following form: Once upon a time, something good happened. It was in some sense pure. It was inspiring, principled, and high-minded. It was, in some sense, sacred. (It might have involved the Jedi. It might have involved some kind of Republic. It might have involved the Founding Fathers.)
Then something bad happened. There was a kind of violation or fall. There was a wrong, or a mistake, or some kind of evil. (It might have involved the Sith. It might have involved some kind of Empire.)
Now it is up to us. We can choose restoration, if we see things clearly enough, and if we are brave enough.
7
There is a lot of work out there on the power of narratives. Here is one example, suggesting that stories are more memorable than data: https://academic.oup.com/qje/article/139/4/2181/7691253. The identifiable victim effect reflects the basic phenomenon, I speculate. Here’s an excellent meta-analysis: https://www.sciencedirect.com/science/article/abs/pii/S0749597819301633
In law and politics, we know much less than we should about all this. Narratives rule the constitutional roost. But how do particular narratives get engrained? More to come, in the fullness of time. (Possibly a book. You never know.)