Absolute power and the failure of a rational response to it

I'm not going to link to anything or refer to previous writing, including my own, because I don't want to point fingers at the folks who are writing about absolute power in the executive branch, most recently highlighted in the Alito hearings.

But I do want to say I think that there's a big flaw in many of the critiques of "unitary executive" theory, and it's this: rational responses focused on the arguments for absolute executive power assume that the folks who supply those arguments would behave otherwise if they couldn't supply a legal memo that justifies their actions.

I think the situation is closer to this: there's a crew of guys in the White House who do whatever they feel like doing. They couldn't give a fuck about legal basis for their actions, and have decades of personal experience teaching them how little oversight or accountability is asked of the executive. But recognizing the need that a small army of rationalists has for something to chew on while they do what they like, they came up with "unitary executive" theory. The point is that they had to have some theory, and it could have been anything; anything at all.


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