Notes from New Washington (2)

US Constitution (National Archives and Records Administration, Public domain, via Wikimedia Commons)

More occasional dispatches – things you might have missed in during the blizzard on the governance battlefield otherwise known as Washington, DC.

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Where’s ‘Deep Throat’ when we need him?

March 12: Some of the intrusions into press freedoms have been inflicted by the White House, as I’ve noted here. Some are cases of self-censorship. The Washington Post is a special case, though how whether this special status will remain is up in the air (along with all the other verities in New Washington). The proprietor, Jeff Bezos, told the editorial page editors that henceforth the Post opinion pages will focus on “personal liberties and free markets”. A Post columnist, Ruth Marcus, resigned after the paper refused to run her opinion piece criticising Bezos.

Among the commentators decrying the move was the political theorist Timothy Snyder, whose Substack post in “Thinking about…” highlighted the “unfreedom” of the journalists no longer allowed the liberty to write what they think when writing about personal liberties. It was a faint echo of the notions of negative liberty (i.e., freedom from constraint) and positive liberty (i.e., self-mastery) in the writing of the philosopher Isaiah Berlin (1958), neither of which the Post opinion staff now personally possess.

A particularly sharp insight came from the European historian and Substacker Timothy Garten Ash wrote:

How can the once great Washington Post roll over like a sick poodle when its oligarch owner, Jeff Bezos, dictates a Trumpian editorial line of promoting freedom for plutocrats? (Its journalists are apparently to be ‘All The President’s Men’ in a different sense now.)

For those who don’t recall this bit of history, Garten Ash is echoing of a different sort of philosophy, the truth-seeking of the Washington Post journalists who chased the Watergate saga and brought down President Richard Nixon in 1974 and many of “all the president’s men” who protected him. Post reporter Bob Woodward famously cracked the case open when a source, going by the code name “Deep Throat”, urged him in 1972 to “follow the money”.

There’s a lot more money at stake these days. And the real “Deep Throat”, FBI associate director Mark Felt, outed himself only in 2005, and died three years later.

To be fair, the Bezos edict applies only the opinion pages, and news proprietors in many countries have used that section to make their specific stances clear. Many still give news reporters the freedom to report what they hear and follow lead where they point. Whether that edict will lead news reporters to engage in self-censorship, however, remains to be seen. Watergate reporting happened when the then proprietor was interested in scoops, wherever they led, not what business they might do with the president of the day.

Where will we find a Deep Throat in New Washington? And who will do the finding?

Controlling the discourse is how you control how people think. That’s why so many theorists focus on language, the vocabularies we use, the intonation, the repetitions and variations, as a route to power.

Berlin, I. (1958). Two Concepts of Liberty Text delivered to Clarendon Press. Retrieved from http://berlin.wolf.ox.ac.uk/published_works/tcl/tcl-e.pdf

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‘Eating properly’

March 6: Garrison Keillor – humourist and purveyor of the “Prairie Home Companion” for decades on Minnesota Public Radio – is a lovely writer. After the president gave his celebratory speech to the joint houses of Congress, Keillor had this to say about “New Washington” and its version of Republicans:

There are worse things than being wrong: one is to be wrong and know it and try to ignore it, like the parade of Republicans insisting that they won the 2020 election. It’s like the man who walks into the doctor’s office with a wiener in his ear and a stalk of celery up his nose and says, “Doctor, what’s wrong with me?” and the doctor says, “You’re not eating properly.”

I chuckled, smiled, and then lapsed into guilt at having taken pleasure in the writing, rather than thinking through the implications. It’s easy to take potshots that hit such a big target. But even if they hit, they do no damage.

The New York Times reported that people from university presidents to Republicans on Capitol Hill fear or have already faced pressure from the White House not to speak up in any dissent with the edicts of the new administration. What might a low-level functionary feel compelled to do under pressure from an operative of the so-called Department of Government Efficiency?

As the old saying doesn’t go: The pen isn’t mightier than the Internal Revenue Service investigation a vengeful administration might launch in retaliation.

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A unitary executive?

March 5: The Trump administration has dismissed a lot of senior staff of federal agencies and shut off payments USAID makes, even though they have been authorised by Congress. How is Donald Trump able to take so many actions without first getting enabling legislation through Congress? The Republicans control both houses and should be able to pass new laws. So why this seemingly extra-constitutional approach of executive orders? Doesn’t the first Article of the Constitution explicitly put Congress in charge of lawmaking?

A legal answer lies in theory arising elsewhere in the Constitution and another aspect of the separation of powers it created: the unitary executive.

Cass Sunstein, a legal scholar and former aide to President Obama, described the theory in an essay for the New York Times.

The unitary executive theory is supported by some distinguished scholars, who point to the Constitution’s text. The first sentence of Article II states that “the executive power shall be vested in a president of the United States of America.” The same article gives the president, and no one else, the power to “take care that the laws be faithfully executed.”

Everyone agrees that at the Constitutional Convention, the founders decided to have just one president, rather than a plural executive.

But the history of the Constitution doesn’t stop there. Sunstein went on to say that in a 1935 case, the Supreme Court ruled that Congress could limit a president’s right to remove the head of the Federal Trade Commission, a move that blocked part of Franklin Roosevelt’s “New Deal”, which – like Trump’s executive orders – involved an assertion of unitary theory.

So, we wait to see how the current Supreme Court, dominated by Republican appointees, interprets the ruling by a former Court, also dominated by Republican appointees, who narrowed the power of the presidency to thwart the ambitions of a centralising Democrat in the White House.

Legal theorists of the 17^th and18^th centuries shaped the thinking in the original US Constitution. Separating the lawmaking from law enactment and each from law adjudication is part of the separation of powers that the founders of the Constitution drew from other theorists – Baron Montesquieu in 1748 (Montesquieu & Allen, 2024) and John Locke (2005 [1690]).

That’s the legal side. In practice, what matters is whether the rule of law trumps the rule of Trump, sorry, power.

Locke, J. (2005 [1690]). Second Treatise on Government. Project Gutenberg. Retrieved from http://www.gutenberg.org/ebooks/7370

Montesquieu, C. L. d. S., & Allen, W. B. (2024). Montesquieu's 'The Spirit of the Laws': A Critical Edition (W. B. Allen, Trans. W. B. Allen Ed.). London: Anthem Press.