Selective Pedantic Proceduralism

Should we seize this rare revolutionary moment, or count on a virtuous Congress to rescue us within the bounds of good taste and decorum?

The political world over, absolute governments which do not even do lip-service to the fiction of consent are more common than free governments, and their subjects rarely question their right except when tyranny becomes too oppressive. —David Hume

For many Americans, the Constitution is a holy document that ought to be restored and its original meaning enforced. But since at least 1913, technocrats, progressives, and a legal mafia with scissors have been cutting out the important bits.

Most notably, perhaps, the Ninth and Tenth Amendments are dead. If they weren’t, 90 percent of the federal government would not exist. But even the evils that were added legitimately—such as the income tax—have not helped Americans stave off the rise of a grotesque administrative-national security state (“The Glob”) and its legions of attendant supplicants. These functionaries and feds have not only developed a vast clandestine police state to protect it, but their proxies routinely attack innocent citizens and those it perceives as its political enemies.

Their ends are power, privilege, and personal wealth. And for them, the ends justify the means.

The whole goddamn thing is an unconstitutional Empire of Graft with a built-in immune system. Indeed, since the close of World War II—and certainly by the time JFK was assassinated—the constitutional republic has been dead. The Constitution has been used as a mask and elections as tug-of-war spectacles giving Americans the silly idea that they are in control. In the meantime, those claiming to protect “Our Democracy” are illiberal enemies within a shadow state.

Yet a few freedom-living friends think the republic is alive and well.

They see the illiberal horrors, but imagine that paladins bestride white horses will win elections someday, dust off the Original Constitution, and lovingly put back the cut-out freedom bits with faith, hope, and Elmer’s glue. They ignore the fact that our electoral system selects for sociopaths and is permanently infected by an unelected parasite class with tremendous power. Why?

For starters, because Donald Trump offends their delicate sensibilities.

When it comes to our shared love of freedom, they are friends and our disagreements are healthy. There just aren’t that many of us, after all. We need each other. I don’t care for bluster, bombast and unstatesmanly conduct. I certainly understand that a bombastic demagogue seems like an unlikely vector for liberation, but we must take wins where we can get them.

The trouble starts with the fact that we freedom lovers don’t always agree about who the enemy is. It’s not easy. Today, I’m willing to hold my nose but keep my eyes wide open. My freedom-loving interlocutors would rather preserve the status quo on the faint hope of a constitutional revival or future libertarian Utopia.

When it comes to The Glob, appeals to the rule of law are but equivocations. “No one is above the law” spills from their vampiric mouths like human blood. This enemy would happily toss my righteous friends in jail and burn their holy charter in the fiery belly of Moloch—if it got them a USAID grant. Yet I worry my friends offer the enemy aid and cover. (To be fair, they accuse me of doing the same. Again, we see different enemies.)

Weepy commitments to constitutionality are little more than selective pedantic proceduralism (SPP). In other words, my friends’ Constitution is full of holes, yet they’ll makes dubious appeals to what’s left of it because something-something the rule of law. They not only fail to appreciate the extent of the damage done, they fail to appreciate the extent to which our adversaries use our holey Constitution against us. Such power asymmetries make appeals to a Unicorn Constitution as useful as stirring oratory at a gunfight. Our freedom-loving friends also fail to appreciate that the rule of law does not simply mean legitimacy; it means the law is equally applicable, publicly transparent, and procedurally fair.

America is none of these.

Be a good little milk cow and shut up, say the authorities that compose The Glob.

In a rare moment of opportunity, DOGE entered a bloody scene and soon found support not from milk cows but from raging bulls. But our freedom-loving friends don’t like it. Not only are they trying to be faithful to a dead Constitution, they are hiding their abject hatred of Donald Trump behind the fig leaf of SPP.

A Friendly, but Important, Debate

The brilliant James Hanley is one of those friends. In what remains, I want to continue my debate with

Econoclast

. Hanley’s text will be in block quotes.

Max Borders and I have been engaged in a debate about the legitimacy of the Trump/DOGE actions in the first few weeks of Trump’s presidency. I am deeply skeptical that they are legitimate, while Max - if not exactly in agreement with Napoleon Trump - argues they are legitimate.

Sort of. Because I see this as an effort to steelman my position, I want to provide Hanley and readers with a few more bits of iron and alloy.

My position is not that DOGE, OMB, Inspectors General, and GAO are acting on some Platonic ideal of legitimacy (meaning strict lawfulness). Lawyers can debate this endlessly, but to my untrained eye they are probably acting lawfully but in an orthodox way, walking right up to the legal line.

For example, our Swiss-cheese Constitution provides that the President “shall take Care that the Laws be faithfully executed.” I can’t imagine in all these rocks DOGE and media like

Public

and Mike Benz have turned over, the President doesn’t have cause due to obvious malfeasance, up to and including what is arguably corruption, seditious conspiracy, and treason. I don’t have time to create a laundry list of these monstrous abuses. Instead, I would ask that my interlocutors not act like denial monkeys—See no Evil, Hear no Evil, Speak no Evil. And I will endeavor to do the same.

Now, Hanley responds to my claim that it is just and permissible for someone to blow the whistle on the NSA for spying on us—and adds that stealing a Nazi boat to help Jews escape would be both just and permissible. But, he says:

By contrast, Max - and Trump and Napoleon - are talking about a government actor taking questionable action, and not for the person of saving particularized individual lives. And not just any government actor. This isn’t like Edward Snowden revealing that the government is engaging in mass spying on the American people. It’s the chief executive attacking the prerogative of the legislative branch, and while we generally call the three branches of government co-equal, if any one of them can be said to be Constitutionally the superior branch, or at least first among equals, it’s Congress.

First, about that “prerogative.” The U.S. Constitution doesn’t say the Executive must spend what Congress passes, come what may; it says that the Executive can’t spend monies Congress does not appropriate.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.

In light of that, consider recent Chevron’s overturning. Congress used to pass vague laws and let the Executive legislate policy and regulations internally. Let’s call this a regulatory blank check. SCOTUS concluded the Executive was doing Congress’s job. Similarly, Congress has the power of the purse. But the Executive can’t just do whatever it wants because funds were appropriated at some point as a financial blank check. Congress not only has to reappropriate with specificity, the President has the power of the audit and some degree of discretionary authority. And the Executive may certainly act due to cause. Corrupt politicians, partisans, and armies of Glob supplicants might not like this fact. And you and I might even hate the auditor. But it’s not at all clear that recent executive actions violate the Constitution.

Even if someone could make an airtight case that recent actions are unconstitutional, such would be based on SPP, not higher justice—which is what I argued in my last piece on the matter. Edward Snowden not only did not “save particularized lives,” as Hanley requires, he was—like Team DOGE—a government contractor attempting to save our Fourth Amendment rights. The difference is Snowden was not legally deputized to perform his investigation.

What’s more troubling is Hanley refuses to recognize that The Glob is not really one of the “three branches of government,” even though he admits to being nauseated by the unchecked growth of the administrative state. It’s an Empire of Graft that funds attempted (and successful) color revolutions at home and abroad, routinely denies American citizens their Constitutional rights, and launders partisan monies while saddling us and our children with exorbitant debt.

All these horrifying misdeeds give the President cause to “take care.”

I will add contra Hanley that it is irrelevant whether “we are talking about a government actor taking questionable action” because we are living in a world where unjust power requires counterpower. Rigorous commitment to SPP would land Snowden in jail. I don’t like that we have to accept liberation from the most unlikely—perhaps unseemly—places. Still, I will always take liberation and justice—especially when our adversaries play dirty and don’t care a jot about the Constitution. Such asymmetries should cause us to be Jeffersonians, not Burkeans, and prompt us to refer directly to the “consent of the governed” and the “Right of the People to alter or to abolish it [government].” Put another way, I hate to get all Lysander Spooner on Mr. Hanley, but I never signed up for any of this. I sure as hell won’t worry about selective pedantic proceduralism if I can win a some of my freedom back, and have a chance to reduce the debt with which the sociopath class has saddled my children.

Does my apparent slide from Madison to Spooner mean that, for me, the ends justify the means? Of course not. I am committed to refrain from initiating the threat of violence, but I am not committed to refraining from some manner of defense or retaliation, even if I have to make temporary allegiances with Elon Musk, or heaven help us, Donald Trump.

Hanley, quite justifiably, thinks DOGE gives the executive more authoritarian power. He writes:

I commented on his post with an analogy I’ve used with increasing frequency lately: That cheering some ostensibly good thing Trump is doing is like the old joke about Mussolini: “At least the trains ran on time.” This is admittedly a pretty blunt challenge, but I stand by it. In my comment, I emphasized that not only did I not believe we’d get real auditing and serious financial controls from DOGE’s activity (I think we’ll get unilateral executive budget power), but even if we did get real auditing and financial controls, rooting out corrupt and wasteful spending and giving us the “right” policies instead of what Congress has passed, it’s not worth the price of shifting to unconstrained executive authority.

In my reply to his comment, I wrote:

For me, it's not making the trains run on time; instead it's moving from a strictly procedural outlook to a sense of urgency around justice. For far too long, the Fourth Branch has grown up and hidden behind procedural minutiae. In my view, there is a threshold beyond which we cannot let zealous fidelity to process create gross asymmetries between us and freedom's adversaries. They have never cared a jot about procedure until they thought it would protect them. The whole thing is an empire graft and worse. So you have this grotesque, authoritarian administrative state. Beyond a certain point, we can't wring our hands about whether it gives the executive too much power. The cancer is Stage Three. The patient needs surgery and chemo. We've got one shot at counterpower, and we'd better take it. I fully acknowledge that it comes with risks, though I still do not see illegality in this. The President has cause due to malfeasance and can appeal to the "taking care" clause.

Hanley writes that he takes my reply here seriously.

To repeat, he agrees about the execrable administrative state, but is unpersuaded by my cancer analogy:

Honestly, I’m not sure why Max doesn’t call it stage 4 cancer. If it’s not metastatic, I’m not sure why not.

That’s fair. I hesitated to call it Stage IV, because the analogy might come across as hyperbolic, though I don’t think it is. Yet Hanley thinks I’m appealing to the reader’s emotions anyway. And he seems to think the patient is a-okay.

Cancer will kill the patient; it’s not at all clear to me that the U.S. is dead or dying.

The US is not dead, but the constitutional order is—at least in my view. At the very least it’s on life-support. He goes on:

The economy continues to grow, the upper middle class is growing faster than the lower middle class. Life expectancy, setting aside Covid, continues to increase. I could go on at length about what I see as problems that need to be resolved, but from a global perspective, we’re still rather blessed. Economically, we’re not Venezuela, or Cuba, or Argentina before Milei, and in terms of freedom we’re not Russia, China, Myanmar, or Iran.

I’ll pass over the notional argument that “at least we’re not Venezuela,” even though it sounds vaguely like “at least the trains run on time” in different garb.

If we’re just looking at economic matters, this is probably why my Stage III metaphor is apt. In other words, we’re resting on our laurels and standing at the precipice. Our debt sits at 130 percent of GDP. We are in demographic decline at the same time that unfunded liabilities are booming while boomers retire. Debt service is compounding geometrically. Inflation looms, if not sovereign default. Hanley seems to want us to eat all the sh*t sandwiches for SPP’s sake.

Unless we take fairly drastic evasive maneuvers, we’re unlikely to avoid a Depression. And this could spread like a contagion around the rest of the world, too, especially if this administration continues to go for Smoot-Hawley 2.0. I just don’t think Hanley can take a snapshot of trends in upward mobility and life expectancy and conclude these guarantee future performance. Congress and the Fed have been kicking the proverbial can and counting on the dollar’s exorbitant privilege. An economic reckoning threatens.

Still, Hanley makes an important point.

If perhaps we’re talking about our constitutional system being cancerous, I’m inclined to agree, despite little formal Constitutional change. Part of that change is indeed the growth in federal power, as embodied in the executive branch agencies, but another part of that change is the on-going growth of executive power. I don’t see how a further expansion of executive power cures that cancer. (Emphasis mine.)

In that italicized point lies the crux of our disagreement and we have to take Hanley’s warning seriously.

Hanley is absolutely justified to worry that freedom’s enemies, if they’re not currently in power, will later inherit extra-constitutional authority as they have in the past, for example, with war-making powers, domestic spying, executive orders, etc. He thinks we ought not cede an iota more territory from Congress to the Executive, or we’re planting the seeds of autocracy.

My view is that those seeds were planted long ago. The Glob is worse than autocracy. Congress rarely shows an appetite to roll back executive power and partisans on both sides use the Fourth Branch—The Glob—as a money laundering operation and network of nigh unstoppable power and corruption. That’s the cancer. The incentives for Congress to do right are simply too weak. The incentives to do wrong are too strong—despite the warning signs.

We would follow Hanley’s principles into a ditch.

Does this mean this moment of Executive pragmatism is without risk? Of course not. If DOGE—and/or indeed Congress—doesn’t find a way to codify a permanent transparency cum stewardship solution, we’re in trouble either way. I just don’t see a path to obliging Congress to slay the Glob with its many hydra heads. I worry Congress, and sadly also the Executive, will slice off heads that regrow.

And here we have to take Hanley seriously again:

DOGE is better described as chainsaw surgery, and not like those clever chainsaw artists making eagle sculptures for the tourist trade, but a reckless guy swinging the chainsaw wildly in the operating room.

Maybe he’s right. We have to wait and see. In the meantime, we debate by playing fast and loose with figurative language.

Notwithstanding the wildly swinging chainsaw—and mixing metaphors—I think of Elon Musk as Ash Williams in the Evil Dead movies, slicing off the heads of the undead army of darkness to help humanity survive. Is Musk a reluctant action hero or a goofball swinging a chainsaw when a scalpel is called for?

Our Power

Next, Hanley wants me to lose the “we” when I write: “We've got one shot at counterpower, and we'd better take it.”

We? There is no we here. This is the President’s power; it’s not my power, and it’s not your power. It never will be. It will simply pass on to the next executive, further extending or possibly completing a process that has been in process for a century, presidential supremacy.

I pass over the difficult-to-grok notion of presidential supremacy rolling back presidential supremacy. In the interests of brevity, it’s on this point I’d like to close.

First, Hanley and readers should remember that little happens in isolation. Not only might these actions result in a more permanent set of transparency and stewardship mechanisms, it has already set certain expectations among the electorate that is more aware and more vigilant than ever before. If nothing else, DOGE has set a cultural precedent. After all, DOGE was likely inspired by the work of Mike Benz who was a private citizen when he launched to fame.

Second, liberatory actions—even cost savings—have knock-on effects in economy, politics, and culture. Cutting out the extensive rot could present opportunities for bottom-up processes such as subversive innovation, as opportunity costs abound with a growing Glob. In other words, every functionary they fire could mean a boot off the neck of an entrepreneur, or rescue the speech of the formerly censored (like me, and me). Every dollar they save could fund the development of the next Bitcoin, or soften the landing of the next recession.

To think that power denied The Glob is not power that accrues to us all is short-sighted. While we have to take seriously the idea that DOGE chainsaw massacre could be making the executive more powerful, sowing the seeds of future autocracy, we also have to wonder whether this is the time to rise up together, seize this strange revolutionary moment, and make lasting changes from the bottom-up in a process we call underthrow.

Read all of James Hanley’s critique here.