Elon Musk is wrong (and right) about democracy and the administrative state.
We do not elect a king who, once in office, simply gets to command all the levers of government power and remake federal policy to his liking.
Elon Musk has spent the last several weeks yammering on about democracy like a college freshman halfway through an intro to political science course. His basic conception seems to be: if the president we elected isn’t permitted to do anything and everything he wants, “we don’t have a democracy.” This is sophomoric, to say the least. Instead of directing his ire — and legion of fans — at the many legitimate threats to democracy in the administrative state, Musk has chosen to tilt at the windmills of judicial independence and legislative supremacy imagining them to be dragons.
A free civics lesson for the world’s richest man is in order. Our Constitution conceives of three distinct forms of government power. First, the legislative power to make laws. Second, the executive power to enforce those laws. And third, the judicial power to interpret those laws and decide disputes under them. The Constitution lodges each of those powers in specific branches of government. Congress holds the legislative power, the president the executive power, and the courts the judicial power. Not satisfied even by this division of power, the framers gave a discreet and limited portion of the powers belonging to each branch to the others as checks; the president can veto legislation, the Senate confirms executive officials to high office, and the courts adjudicate the constitutionality of actions taken by the other two.
With that groundwork, let’s return to Musk’s contention. He’s right that there are dynamics at play in our civic order that undermine democracy — or as I prefer to describe it, self-government. The most fundamental idea in the American experiment is that the people are sovereign and that the government rules only by our consent. That consent is channeled by elections: congressional elections where we choose who will represent us in making the laws that govern us and presidential elections where we choose who will represent us in executing those laws.
We do not elect a king who, once in office, simply gets to command all the levers of government power and remake federal policy to his liking. No, the president presides over the executive branch and is responsible only for effectuating the will of the people as expressed by their representatives who properly legislate in the legislative branch. Key to that role though, and this is where Musk stumbles on a point he then mangles, is that the president must have an executive branch that is answerable to him.
The only person we elect in the executive branch is the president and the Constitution lodges the entirety of executive power exclusively within the president himself. The entire executive branch exists as an extension of the president’s power, and it is a profound threat to self-government if there are reaches of the administrative state that exist beyond the president’s control.
But Musk confuses means and ends. The president must have control over the executive branch — the means of executing the law — but he can never have unilateral power over what the laws say — the ends of that execution. It is the exclusive preserve of Congress to determine what federal agencies exist, what they ought to do, how we spend money, and the like.
But even here there is a problem that Musk might have taken up but chose to pass over: Congress has developed the habit of handing over its power to make law to the executive branch. In recent decades, the laws passed by Congress have gotten larded up with “the secretary shall…” and “the president may…” and other such invitations to executive mischief that undermine the legislative branch’s legislative power.
Musk calls to mind no one more than William Roper in A Man for All Seasons demanding that Thomas More cast aside the supposed niceties of law in pursuit of some great good:
William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
Roper: “Yes, I'd cut down every law in England to do that!”
More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
The Constitution is not a trifling thing to be tossed aside in favor of, even noble, political ends. Someone should tell Elon.