executive power

The ascent of the Shadow Docket. by Gerardo Muñoz

In recent years there has been a steady but increasing practice in the American legal system that has passed unnoticed outside the corridors of law professors and practitioners of litigation, including the federal state that has summoned to its practical use: the emergency relief, or ‘shadow docket’ that puts the burden on the Supreme Court to decide on concrete questions without a formal hearing, fact finding, or without proper argumentative opinions of visible authorship (the judge who pens the opinion tends to deface his authorship). Since the outbreak of the Covid-19 pandemic, the Supreme Court of the United States has increasingly expanded its so-called ‘shadow-docket’ in parallel with the merits docket to such an extent that, as some legal theorists have noted, the blurring of the borders between the first and the second have become so tenuous and intertwined that it would seem that the merits docket depends on the prior selection mustered in the shadow docket. As constitutional scholar Stephen Vladeck has registered in his The Shadow Docket (2023), a practice that historically was strictly tied to emergency relief for capital punishment executions, it has now become a normal vehicle to decide on the emergency contingencies, while at the same time exercise discretionary judgement regarding the merits, or actual dispute, of case pending future review that might never be considered at all [1]. 

It must be said that the selective practice of cases by the court through the notion of “certiorari” on merits cases was in itself a decision on the exclusivity of relief based on the criteria of major legal questions of interest to the court. But precisely the differentiation between certiorari and the shadow dockets grants sharp focus on their differences. On the one hand, the shadow docket fails to decide on “legal questions” – in fact, it avoids tailoring the boundaries between the other branches of government and itself, as some have noted – and, by the same token, its non-decision produces a precedent lacuna that further entrenches the ascension of the shadow docket, inviting an evermore practice of emergency relief to increase chances of ‘cert’. Contrary to expert opinion, this is a juridical situation that does not create the conditions for the normalization of the “state of exception”, since there is really no authoritative decision to stabilize a concrete order, which was the purpose of Carl Schmitt’s well known formulation about sovereign arcana in political theology. In a certain sense, we have already crossed this threshold. Rather, the shadow-docket as a juridical practice in the American legal order is an institutional symptom in which decision has been evacuated or rendered inoperative, so that emergent social needs enforce any specific arrangements and political vectors through an enacted order. 

Furthermore, the shadow-docket as a regularized legal practice at the highest court confirms the historical shift within American legal system from the empire of the courts to administrative departmentalized commands, which ultimately means that the formal tendency towards “delegation” should not be solely circumscribed in allocated powers of the different branches’ oversight and control, but rather is a product of a holistic tendency towards the emergence of a new form of social indeterminacy in which authority resides in the shadows. As Supreme Court Jackson writes in the “Per Curiam” dissent in Trump v. JGG  (April 7, 2025): “With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: we are just as wrong now has we have been in the past, with similar devastating consequences”. It is an astonishing statement from the Judge not only because of what it states, but also what it silences; mainly, that by leaving no trace at all of their argumentative reasons there is no precedent, and for that matter no process and thus no case. And what is a rule of law devoid of a case and precedent? The historical schism with respect to the tradition of Common Law that gives birth to its formal constrains should be utterly obvious. Ultimately, this evidences the uttermost decline of the legal positivist horizon of the modern law rooted in legitimate authority (authoritas, non veritas, facit legem), in which arbitrary decisionism, legal motorization, and appeals to external values align themselves in order to render absolute determinacy between social life and legal execution without any preclusion in the form of a social trial without end. In this sense, it would be foolish to assume that the crisis of authority with the dissolution of auctoritas in the social spheres compartmentalized in functions of the “political community”; on the contrary, in the shadow docket scenario, authority “becomes more and more abstract, more and more inhuman and inexorable; more and more demanding” [2]. The orientation of executive commands is met with proportional digression of adjudicated moral pondering, and each time the force of legalization is vigorously expanded.

The decline of the juridical decision, one would be tempted to say, paves the way for the infinite demands at the expense of the arbitrary values formation of social gigantism. In the opinion about college admissions and racial discrimination of the 2023 merits docket cycle (Students for Fair Admissions v. Harvard College), Justice Roberts wrote that “What cannot be done directly cannot be done indirectly. The constitution deals with substance, not shadows”. An ironic statement, indeed, given the preeminence of the shadow-docket in the adjudicative practice of the Supreme Court itself. While the administration of justice becomes a practice in the shadows, one cannot but be reminded of Plato’s protofigure of the Guardian of Constitution, the Nocturnal Council, as elaborated in the last pages of The Laws. And for Plato “if a state lacks such constituent [a Nocturnal Council], no one will be surprise to see it staggering from one irrational and senseless expedient to another in its affairs…that body must posses virtue in all of its completeness which amens that it will not take erratic aim at one target after another but keep its eye on single target and shoot all its arrow at that” [3]. On the tail opposite end of the platonic Nocturnal Council, the United States’ highest court’s gliding abdication seems to erratically aim at repeated targets that emerge blasting flickering lights from within the ever present shadow docket – indeed, a momentary luminosity, full of ‘technical terms’ and deferrals, that aim to showcase that the rule of law still endures in the House of Justice.

.

.

Notes

1. Stephen Vladeck. The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic (Basic Books, 2023), 19.

2. Theodor W. Adorno. “On the Problem of the Family” (1955), Endnotes, 2022: https://endnotes.org.uk/posts/theodor-adorno-on-the-problem-of-the-family-1955 

3. Plato. The Laws (Penguin Books, 1975), 520.

The oath and the guardian of the constitution. by Gerardo Muñoz

The neutralization of an intense political movement tends to defy both institutional and implicit norms of the rule of law. The fact that former President Donald J. Trump has been charged with four different legal indictments – the hush money New York state case, the Mar-a-Lago Classified Documents case, the January 6th insurrection case, and the Giorgia election meddling case – have only boosted his cultish popularity among his followers who are now pushing for a second presidential term. On top of this, it is also important to note that none of the indictments truly bar Trump from reaching the executive office and engaging in a self-pardon. However, we have seen the emergence of a fifth possible venue to indict Trump elaborated in an important lengthy law review article co-written by jurists William Baude & Michael Stokes Paulsen that reclaims the sweeping and effective force of section three of the Fourteenth Amendment of the United States Constitution [1]. The letter of section 3 is straightforward, and it states that anyone that has previously taken an oath to defend the United States Constitution, and engages “in insurrection and rebellion” disqualifies him from future appointments in any public office, although Congress could remove said disability with a sufficient majority [2].

There are two central qualifying conditions in the section: having taken a prior oath to the Constitution, and engaging or avoiding insurrection and rebellion against the unity of the state, which assumes that the current political situation is one of either the threat of secession or civil war (this was Lincoln’s standard). The fact that this has been proposed by one of the foremost exponents of constitutional originalism should already indicate the juridical pressure that American lawyers are facing at the moment [3]. If there is room for disagreement about the “objectivity of the context”, the fact that the applicability of section 3, Am.14. presupposes the state of a full-fledged civil war that confirms the unprecedented controversy about the political context – regardless if considered an open civil war or an institutional political crisis – in which the enforcement of the constitutional provision will be executed[4].

The precondition for the effectivity of the sanction, however, hangs on something that has been taken for granted by most commentators: that is, the fact that the public official has taken an oath, becoming what Baude & Paulsen denominate an ‘oath-taking category of person’, which implies that the self-defense and the continuity of the constitution relies on the structure and form of the oath. Of course, we know from the great legal historian Paolo Prodi that one of the fundamental categories of political authority of the state was the absorption of the religious vow and the sacrament into the oath expressing the collective will and intra-institutional regulation of a normative system of the rule of law [5]. The oath achieves the unity of institutional authority, but this is only possible if there is a common collective faith in the constituted community of the oath-taking practice.

Under this consideration, it is almost redundant to note that the object of this collective and consensual faith (fides) is the oath as the nexus of public trust between the word and the instituted reasons for action. Oath and faith – and its immanent dialectic, since it also implies the faith in the oath – just like the polarity of religion and the rule of law, can only be sustained on stable conditions of a robust secularized equilibrium now broken. In fact, this is what paves the way for the indirect powers of civil war. This implies that the dependency on the oath is invalid without fides; and, mutatis mutandis, it is only once that fides is separated from the oath that its self-executing force becomes possible in the field of factional forces.

This is something that is definitely not a new problem, since one can read in “Federalist 18” how the implementation of oath during the Greek polis did not lessen the exacerbation of the fragmentation between the rise of different factions [6]. In the same vein, Carl Schmitt reminded how Hindenburg during the Weimar Republic felt comfortable taking an oath prima facie, only to find himself later hostage to the absolutization of internal political hostilities [7]. Given that the oath is predicated on the faith of a “promise of future behavior” (Baude & Paulsen dixit), an oath discharged from the presupposition of a faith in the concrete institutional order, tends to reproduce an adverse relation between perjurers, legal sanction, and pardons. In this circularity any political system will no longer depend on the internal categories of legitimate rule and social representation, but rather on the parallel tripartite structure of oath-taking, compelled oath, and acceleration of instrumental exchange of burdens, misdemeanors or infractions.

This tripartite structure – oath, perjury, politization – orients the force of fides after the collapse of modern secularization and the rise of legal constitutionalism [8]. Indeed, the energy of desecularization can only be expressed with the efficacy of moral principles dependent on a political will that fluctuates on the coagulation of legislative majorities that will see their “truths”, “public reasons”, and “social sensibilities” as permanent marching orders (let us not lose sight that the Congress can override the force of proscription). This does not mean that there is no such thing as having taken on “oath to the Constitution”, which is at the center of the American political system. Nor can one ignore the fact that section 3 enacts a clear threshold against public office holding if engaged in the context of insurrection or rebellion. Furthermore, one should not confuse the expediency of the unit of the political with the external question pertaining to social facts or public opinion [9]. Rather the point is much simpler and stark: if a constitution is a normative system of rules and principles, its free-standing application can not respond on the basis of having faith in the future promise compelled by the force of the oath. This can only deepen the conditions for civil war that neo-constitutionalism facilitates through its flexible and discretionary principles (the primacy of ius over lex). In the shadow of the oath, the archaic jingle of the sacramental enunciation is heard one more time [10].

The oath should not be reduced to a candid constitutional interpretation or federal jurisdiction: it is eminently a political question about the form, scope, and urgency of the guardian of the constitution and its nocturnal council. It is perhaps pertinent to conclude by recalling Plutarch’s old maxim: “Children are to be deceived with toys, men with oath”, which today could very well apply to generic constitutionalism and political militants alike, two fierce contenders in shaping and distributing the the energies of the legal stasis [11]. And if wrongs committed are no longer done to the gods as in Tacitus’s sacramental maxim ( deorum iniurias dis curae), but first and foremost against the authority of a concrete order; this means that political differentiation emerges against the quiet harbinger of the sacralization of politics – an anodyne time in which men with oaths, quite often, also behave and act like children with toys.

.

.

Notes 

1. William Baude & Michael Stokes Paulsen. “The Sweep and Force of Section Three”, U. PA. Law Review, forthcoming 2024: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751 

2. US Constitution, Article XIV, sec.3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability”.

3. Gerardo Muñoz. “El Originalismo y la Corte Suprema Norteamericana: un diálogo con William Baude”, January 2023, En Disidencia: https://endisidencia.com/2023/01/el-originalismo-y-la-corte-suprema-norteamericana-un-dialogo-con-william-baude/ 

4. “Prof. Michael McConnell, Responding About the Fourteenth Amendment, “Insurrection,” and Trump”, The Volokh Conspiracy, August 2023: https://reason.com/volokh/2023/08/12/prof-michael-mcconnell-responding-about-the-fourteenth-amendment-insurrection-and-trump/ 

5. Paolo Prodi. “Dalle Secolarizzazione alle Religioni Politiche”, in Storia moderna o genesi della modernità? (Il Mulino, 2012), 115–51.

6. Alexander Hamilton & James Madison & John Jay. The Federalist (Havard University Press, 2009), 107-108. 

7. Carl Schmitt. “The Legal World Revolution”, Telos, N.72, 1987, 82. 

8. Jack Goldsmith (Harvard Law) seems to hold this view in “The Prosecution of Trump May Have Terrible Consequences”, August 2023, New York Times: https://www.nytimes.com/2023/08/08/opinion/trump-indictment-cost-danger.html 

9. Martin Loughlin. Against Constitutionalism (Harvard University Press, 2022). 

10.  Émile Benveniste. “Ius and the Oath in Rome”, in Dictionary of Indo-European Concepts and Society (Hau Books, 2016), 401.11. Plutarch. Lives. Agesilaus and Pompey. Pelopidas and Marcellus. Volume V (Loeb, 1917), 12.

The ascent of the administrator. by Gerardo Muñoz

Today the political surface only seems to obfuscate the analyses of the real forces that move at different pace underneath the crust. When recently Emmanuel Macron referred to the popular unrest protest as “la foule…pas de légitimité face au peuple qui s’exprime souverain a traversé ses élus”, he was not only speaking as the sovereign, but as something more specific; that is, as an administrator. If the old sovereign stood metonymically for the totality of the whole constituent body, Macron’s political rhetoric cleverly distinguishes between the “groups” or “masses” (this is also the same term that Sigmund Freud deployed in his contestation to Le Bon’s theory of the multitudes in 1921), and the institutional mediation of the “People”. What is interesting, in any case, is the cleavage between the two figures becoming well delimited: one being on the side of political legitimacy, the other on its inverse pole of apolitical illegitimacy. The logistics of administration (or what I have called in recent research the administrative nexus) serves to conjoint this specific separation. By the same token, we should not let pass the occasion to recall that if Macron is a hyperbolic political commander of the West, it is precisely because he stands as the executive force at the helm of the administrative legitimacy (as a political elite, he was shaped at the École nationale d’administration).

What do we mean by administrator in this specific historical conjuncture? It goes without saying that modern French public law has a long and important history of droit administratif, which in France is structured around a dual jurisdictional system enshrined by an extensive legal case law and its juridical principles. The French system of droit administratif, however, is not to be understood as an amalgamation a posteriori of classical separation of powers, but rather a concrete institutional design within public powers. This was an institutionalist design that profoundly impacted Schmitt’s thought on the concrete order in the first decades of the twentieth century. The bureaucratic institutionalization was an integral organizational mechanism of legislative congressional practice. The rise of the administrative state differs from droit administratif insofar as it represents liquidation, as well as a thorough transformation of the modern system from within. In this sense, the rise of the administrative state is an excedent to bureaucratic legitimation – and Schmitt was right to characterize as the ‘motorization of law’, a force that he saw unleashing already in the overall tendency of European public law of the 1930s, although only taken to its fulfillment in the United States (something that Schmitt did not foresee) [1]. And if we were to sketch out a minimal phenomenological reduction of administrative law today we could state that it consists of the overflow of executive power through the exercise of the principle of delegation and the extension of intra-agency policy-police enforcement. What early on administrative law professors termed the revolution of an ‘administrative process’ has now come to full extension by subsuming the tripartite structure of the separation of powers to the administrative oversight of the space of social reproduction.

That Macron can only frame his political analysis in terms of “la foule” entails that he is already occupying (at least tendentially; and I can not speak myself for the concrete institutional transformation of the executive office in the French political system) and envisioning role of executive branch as a presidential administration. In an academic legal article that will exert an enduring influence in American public law, “Presidential Administration” (Harvard Law Review, 2001), Judge Elena Kagan stated that the era of executive administration had arrived; which rather than the supremacy of an institutional branch over others, it aspired to defend the orderly equilibrium to the total functioning administration of the whole system [2]. It is important to note that today’s ascent of the administrative state across the Western Anglo-Saxon public law is not rooted in maximization of bureaucratic rationalization nor in the authority of the charismatic office of a Reichspräsident as in the Weimar Republic (I have previously shown its difference), but rather in the production of delegation and deference of political authority that flows from executive power, while remaining bounded within a logistics of balancing and equity (in fact, the notion of equity has become the administrative unity of enforcing a positive production of exceptionality, but this is a discussion for another occasion). In other words – and as paradoxically as this may sound – the Macronite experiment with executive action based on Article 49 of the French Constitution, bypassing Congress, is a thoroughly habitual and normalized practice in the American legal system, which have led some jurists to claim a last farewell to the legislative body of the State – the same branch that Woodrow Wilson would describe as the ‘body of the nation’ in his seminal Congressional Government (1885).

All things considered, whenever Macron’s technocratic politics are described there is an amnesia to the concrete fact that Americanism is not just economic planning or the drive towards indexes of productivity and financial credit standards; it is also a specific governmental stylization. And this stylization is the administrative government, whose stronghold on public law should not be taken for granted. This means at face value that the empire of judges and congressmen (the “elected representatives” upheld by the Macron internal doctrine) is ultimately marginalized in the new center stage government occupied by an elite cadre of administrators and regulators in charge of grand policydesigns in virtues of expertise, rationality, adjudication, and compartmentalized decision-making process – that Kagan recommended should orient “a coherent policy with distance from politics and public opinion” [3].

Contrary to Macron’s republicanist rhetoric, the true and concrete ethos of the administrator is no longer at the level of classical modern political representation (elections, legislative body, judicial restraintment), but rather on the production of statute rulemaking balancing (equity) that unifies the aggregation of private preferences and calculations to the specific determinations of broad and discretionary public interests. At the level of the analytics of ideal types, this transformation sediments the passage from the political elite to the executive administrator of new normative indirect powers. The ‘americanization’ of Macron’s policymaking universe is centered on the exclusion of political governance or judgement in favor of abstract administrative principles (the so-called ecological transition tied to metropolitan or specific territorial energy hubs, to cite one example) and optimal regulatory determinations. What emerges at the threshold of modern republican politics is, then, the rise of a fragmented ‘la foule’ and the activation of police-powers (legality) through the procedures of statute enactment oriented at the unruly state of contemporary civil society.

.

.

Notes 

1. Carl Schmitt. “The Plight of European Jurisprudence”, Telos, March, 1990, 35-70.

2. Elegan Kagan. “Presidential Administration”, Harvard Law Review, 114:2245, 2001, 2385.

3. Ibid., 2262.

Two comments on Pedro Caminos’ essay on Vermeule normative framework. by Gerardo Muñoz

In a forthcoming dossier on “common good constitutionalism” at the journal of the Universidad del Salvador (Buenos Aires), edited by the good offices of Guillermo Jensen, there is a featuring essay, “El concepto de marco normative en la obra de Adrian Vermeule”, by Pedro A. Caminos that makes an original attempt to read Vermeule’s legal theory from strong jurisprudential position, and it does so by suggesting that the ‘marginalization’ of the judiciary and the transformation of the administrative state (the Chevron paradigm) implies a normative framework, analogous to Martin Loughlin’s superlegality or Fernando Atria’s common norms (I would be tempted to also add to this list Scott Shapiro’s conception of law as planning). Although I agree with the normative framework in both scope and design of the constitutional theory, there are two underlying elements that I would slightly challenge for further discussion. The first element concerns the notion of tyranny, and the second one to the allocation of “politics” in administrative framework

First, towards the end of the essay, Caminos cites Robert Alexy’s rendition of the Radbruch formula in which no positive law can be tyrannical (or unjust) or it ceases to be legitimate law from an external perspective. For Alexy the conditions of intelligibility must answer not only to internal rules of recognition as positivism would have it, but, more fundamentally, to the challenge of the participant perspective, which is external to the rule of recognition. The problem with the Alexian antipositivist stance in Vermeule’s normative framework is that it would seem to come to a halt if the institutional design is constructed as “second best” safeguards for administrative decision-making. Indeed, the second-best optimizing rule is the same thesis defended in The Exeuctive Unbound (2010), which suggested that ultimate concerns for tyranny (trypanophobia) could ultimately serve the master that it seeks to prevent. To some extent the administrative state – if read from the internal point of view of executive power – is best understood as the optimizing and taming of presidential power through the normative framework. Now, it is true that in “common good constitutionalism” the emphasis against tyranny is counterposed by an objective morality proper to the ragion di stato, which explains why the “second best” optimizing rule is silently replaced by the determinatio that defines the construction zone of the praetorian decision making. The nuances here are important: whereas second-best optimizing rule has no moral purposiveness; the determinatio is by nature a moral discriminatory principle (ius). Whereas the Bartolist jurisprudence aims to tame the privately infused tyrannical forces for good government; the unbounded executive does not fear tyranny as long as it controls the immanent force of administration [1].

Secondly, Caminos derives from the normative framework the construction of a common legal space in which disagreements could flourish. And Caminos sees this as consistent with Schmitt’s concept of the political as the distinction between friend and enemy. But so far as the notion of enmity in The Concept of the Political moves through different determinations, it is an open question as to which determination are allocated or relevant to the normative framework. However, if what defines the “reasonable arbitrariness” of administrative adjudication is predominantly informed by cost & benefit analysis, it would seem that it is value rather than the political distinction the distinctive feature of its logic. This makes sense given the jurisdictional supremacy of the administrative state, which subsumed the legislation into the normative framework. As Carl Schmitt predicted it in his Tyranny of Values, in this context function of the legislator becomes that of a tailor of suturing and producing new mediations for value stratification [2]. But could one conceive the concept of the political within the values of administrative rationality? At the end of his essay, Caminos himself seems to think otherwise, and suggests that normative framework allows for a new conception of political friendship. Of course, in the regime of value administration friendship is defined first and foremost by those are “valued” or “devalued”. Ultimately, this would be strange conception of “friendship”, since, as De Maistre showed, the friend is always outside the margin of utility, and thus constituted outside value [3]. Hence the difficulty for an alleged new politics of friendship: either the concrete friendship is diluted into a “fellow man” (blurring the specificity of friendship) or embracing as friends only those that share common values that can be imposed to non-friends, but who are not recognized as formal “enemies”. This second variant is most definitely the common good ideal type. In either case, friendship and politics become two poles in the procedural organization of values: a hellish reality notwithstanding appearing as a ‘friendly’ paradise of values.

.

.

Notes

1. Adrian Vermeule. Common Good Constitutionalism (Polity, 2022), 27-28.

2.Carl Schmitt. La tiranía de los valores (Hydra Editorial, 2012), 147.

3. Joseph De Maistre writes: “¿Qué es un amigo? Lo más inútil del mundo para la fortuna. Para empezar, nunca se tiene más de uno y siempre es el mismo; lo mismo valdría para un matrimonio. No hay nada que sea verdaderamente más útil que los conocidos, porque se pueden tener muchos y, cuantos más se tengan, más se multiplican las posibilidades en cuanto a su utilidad.”, in El mayor enemigo de Europa y otros textos escogidos (El Paseo, 2020), 212.