Insurrection, War Powers, and the 'Deep State'

Abstract

The events of January 6, 2021, are a Rorschach test for longstanding debates surrounding the efficacy of the separation of powers. Scholars have endlessly debated whether the federal branches of government operate as the set of checks and balances that the framers intended, and whether the President is constrained by law. The role of the executive branch bureaucracy in both constraining and entrenching presidential power is increasingly an essential component of these inquiries, and it is the focus of this chapter. It will consider these dual roles through the lens of two very different case studies: the insurrection of January 6, 2021, on the one hand, and the long-term interpretation and practice of presidential war powers, on the other.

The focus of one of these case studies, the attack of January 6 on the U.S. Capitol, is a fantastical, extraordinary snapshot of time. It was an event fostered by a once in our nation’s history President. That President and the attack he inspired represented such a shock to the nation’s fundamentals that they threaten to divide the very party that brought him to the Oval Office. The other study, the longstanding practice of war powers inside the executive branch, is a story of business as usual. The executive branch’s process for wartime decision-making, its expansive claims to unilateral power, and even most of its wartime acts fly so far beneath the radar that if you plucked a person from the street and said, “how concerned are you about the President’s claims to unilateral war powers?” they might easily respond, “what war?”.

The events of January 6, extreme as they were, bring into stark relief how essential the institutional constraints and normal operation of the executive branch bureaucracy are to the continued functioning of our democracy. The executive branch practice of war powers demonstrates how these institutional constraints and norms of governance also promote a lopsided tilt of ever-increasing power to the executive branch itself, an executive branch run by a President who might once again seek to abuse that power. These two features of the bureaucracy are symbiotic. The existence of one creates space for the other. The knowledge that bureaucratic constraints exist permits the other branches to delegate and defer to the President as an entity even when they fear the President as a person.