Two strokes of state
"It describes some other government, which is not our own."
Some pundit emailed me and wanted to know: if I didn’t think making abortions a bit more inconvenient was a fair prize for decades of political street-pounding to finally capture a ruling majority on the Grand American Imperial Council—well, then, what is a proper goal for a Supreme Court majority?
At first I was like: do I look like Linda Greenhouse? Then later I got used to the idea. While it is a ridiculous question—my first answer would be “like, anything else”—sometimes a silly question deserves a serious answer. After all, we are the future.
There are two classes of answer. “Type A” answers are those in which the President and the Court have to work together in a unified strategic plan (one thinks at once of Lincoln’s “Stephen, Franklin, Roger and James”); “Type B” answers are those in which the Court can, in theory, act on its own without control of the White House.
Obviously, type B, a judicial coup alone, cannot reach the power of type A, a joint presidential-judicial coup. But type B strategies can still be useful. What makes a Court decision strategically useful? What makes any action strategically useful?
Strategic strikes and balls
An action is strategically useful if, after that action, it is easier to replace the regime. Let’s call a useful action a strike—making a useless or counterproductive one a ball. (Note that the French coup translates as strike.)
See how easy this is? Dobbs is not a strike, because post Dobbs, the elves get motivated and the hobbits demotivated. If the regime can only be changed by coordinated hobbit action against Elf-Ruled America, and this action becomes harder, Dobbs is a net lose—a ball.
Dobbs was struggle, not strategy. When in a trap, the universal rule is: don’t struggle. Don’t act wildly out of instinct—any trap will be designed for you to do exactly that. Your instinct wants you to throw balls. You need to train yourself to throw strikes.
The most obvious kind of strike is a decapitation strike, in which the regime changes in one blow. Here is a decapitation strike which does require coordination between the White House and the Court. I call this little play the “Humphrey’s Executive.” America has not seen a judicial coup like “the Hump” since Marbury v. Madison itself.
Type A: Humphrey’s Executive
The core of this strike is the repeal of Humphrey’s Executor, one of the core decisions protecting the Babylonian captivity of the Presidency, and thus of democracy itself. “Humphrey’s Executive,” in its full version, is a type A decapitation strike. (As usual with this straight-up coup shit, anything short of the full monty is a super bad idea.)
Humphrey—ironically, a spiteful anti-FDR act of the Old Court, which could not have known how effectively the New Deal regime would use this power after FDR’s death to constitute the invulnerable administrative state—is the precedent that protects the administrative state from the White House, and ultimately from the voters. American democracy didn’t know it at the time, but it died with Humphrey’s Executor.
Humphrey says that Congress can establish “independent” agencies which are in the executive branch, but not under the full power of the chief executive. In specific, the President cannot just fire anyone in the executive branch he wants. Therefore, he is not actually the President—not the chief executive of the executive branch. And the Constitution is just a lie—it describes some other government, which is not our own.
It is not sufficient to repeal Humphrey as a symbolic step. If Humphrey was decided in error, much as Plessy v. Ferguson was decided in error, establishing a level playing field is not sufficient—the playing field was tilted for too long. As the Warren Court rightly observed, the only way to repair such an error is to tilt back in the opposite direction.
Let’s adopt a bit of legal realism here. Really what we’re seeing here is an executive branch which is not executive at all—and which cannot therefore fulfill the true design of our Constitution, an elected monarchy responsible to the American people.
The Constitution, like any institution, is best interpreted as designed for the first team to use it. This was the duumvirate of Washington and Hamilton. Washington made a great head of state; Hamilton made a great national CEO. Easy to imagine Trump and Musk in the same roles. A simple but effective “accountable monarchy.”
But today we have no executive branch—only a legislative branch. The agencies are in practice responsible to the Hill, not the White House. The Hill micromanages their budget, policy, and personnel. The White House sends them press releases which they have to pretend to obey, and appoints a small legion of empty suits who will be either captured or destroyed by the permanent civil service.
These agencies are not an executive branch and never will be. As a matter of legal realism, the correct decision in this case is whatever decision finally, completely abolishes this unconstitutional legislative branch. This is the true justice—just like abolishing Jim Crow. It could not be done halfway. The bias cannot just be erased! The bias must be inverted.
Therefore it is necessary to reinterpret the separation-of-powers clause, much as Chief Justice Marshall reinterpreted it in Marbury v. Madison. In Marbury, the coequal nature of the three branches is interpreted in a way that gives the Supreme Court practical primacy and effective sovereignty. Now, this same primacy must rebound onto the Presidency—with just as much constitutional justification, and just as little.
The mountain of paperwork that defines the “executive” branch is the “law.” These “laws” are not like any actual law that ever lawed. They are central-planning orders for a procedural bureaucracy. Trying to turn a procedural bureaucracy into a executive machine is like trying to turn the post office into a startup. Just start a mail startup. Even scaling it to the size of the post office will be faster than fixing the post office.
There is no possibility of amending these paper Alps. They must be burned to a crisp—at the same time as the human organizations they define are dismantled. Once the institutions are liquidated both in law and in structure, nothing can bring them back. The Deep State has been cast into Mount Doom. Better yet—take down the buildings. Best of all—move the capital. Detroit, maybe?
The President cannot successfully take command of the “legislative executive.” The only power that the Presidency can use successfully is the power to dissolve the administrative state and create a new government to replace it. The only way this can be done is if there is no legacy power outside the new government—so that the power of the new government, like every new government that can live, is absolute.
So the legal framework of this unconstitutional layer of government, the permanent civil service, is blown up by the Supreme Court. In the same decision, the Court also inverts Marbury v. Madison, surrendering its own power to review not just the laws of Congress, but also the actions of the President—who is now literally above the law. Finally, recognizing the necessity of such power for reorganizing the state and nation and returning to constitutional governance, the Court suspends habeas corpus and declares a state of emergency for as long as the President shall deem necessary.
The judicial and legislative branches are now advisory branches only. Their functions are, in the long run, essential—in the short run, not so much. Once they come to their senses, the President will hear their wisdom with the greatest of attention and respect.
All this sounds like a lot. Actually, none of it will do any good unless the President is completely ready to act on it—not by reforming the civil service, but by replacing it.
It is imperative that the civil service be completely changed out for an entirely new staff. Civil servants may continue in different roles, but cannot keep their jobs. Nor will any organization, policy, or procedure survive, unless profoundly apolitical—like astronomy, say, or the Coast Guard.
Without even bothering to name political appointees, the President will tackle every agency in the old “executive branch,” as hard and fast as possible, with an elite squad of fat-brained generalists whose backgrounds are in highly competitive industries—such as tech, finance, tech and finance.
These Adderall-chewing swine will parachute into each of the agencies, figure out what it does that actually makes sense, boot up a replacement which (if even needed) is a hundred to a thousand times smaller, and manage the transition from old to new. Recruited before the election and activated immediately after it, by inauguration day the new bureaucrats will be ready to fall from the sky with biblical shock and awe. If any of the old agencies is still operating in six months, someone has been slacking! The President expects these young men to burn out their brains for him, spending the rest of their short, twitchy lives with a PTSD that makes Nam look like Disneyland.
The old staff will receive generous retirement benefits, printed by the Fed. The Fed is not an “independent” agency, like Humphrey’s committee—it is a branch office of the executive branch. If the authors of the Constitution had meant to keep the power of the purse (crucial to the legislative captivity of the executive) in the hands of the Congress, they would have prohibited the President from printing money. But yo, they didn’t. So the President can and should fund his new regime directly from the Fed—as well as the transition costs of shutting down the old regime and retiring its employees.
Also, states’ rights are dead. Federal law and regulation is full of ways in which Washington can control state policy. Preserving the corpse of federalism does no one any good, and creates enormous waste—does the US really need 50 separate DMVs?
Therefore—applying straightforward legal realism—the Court can also find that in reality, Washington is in charge of the state governments. Since the President is now in charge of Washington, he also has the authority to dissolve the state governments and fold them into his new regime. It is much simpler than controlling them through grants, mandates, etc. So all that is lost, when “states’ rights” die, is a sneaky illusion.
America will be as centralized as, say, France. For instance, the new United States will have one public-school system. Cons: I know this horrifies you. Ask yourself a simple question: how else do you want to take the woke out of the old system? McCarthyism? McCarthyism on steroids, rocket fuel and hot rhino piss? It will not be enough.
Just shut the old thing down, and build a new thing. Kids are kids, schools are schools—just do it once. If you want to split your big new thing into many smaller things, you can do that later. Your priority is replacing the old thing with a new thing, as fast and hard as possible. Fortunately, there are still Americans who can get stuff done.
Finally, it is quite insufficient to confine the institutional transition to formal arms of the state. Local sovereignty—the power of final decision in some arena of power—is not a nominal quality, but an objective quality. Some of the most powerful organs in the country and the world, such as the New York Times, are “private companies.”
In general, all private “nonprofit” organizations are objectively organs of state. So is the information network—the legitimate press outlets and educational institutions. These organs too must be occupied and replaced by the transition team. Not a single org chart or PowerPoint slide must survive. (Seizing the data of all dinosaur agencies is a crucial aspect of dissolving and/or replacing them.)
Isn’t this pretty? It’s the full monty—complete regime change in a small package. It’s very cool and very legal. But—it is a little aggro. Some of you kids may not be… ready.
Is it too early for Humphrey’s Executive? I don’t think so. I don’t think so at all. But…
Type B: Reverse Johnson
The most interesting actions are not decapitation strikes. They are not final, but they are not balls. Type B strikes are real blows that actually weaken the enemy, softening him up for the next slash—but that do not finish him. Yet.