Conservative Legal Theories and Their Authoritarian Roots

There is a principle that runs through the conservative legal tradition like a load-bearing beam. It goes by several names — executive deference, the presumption of constitutionality, the unitary executive theory — but its core claim is consistent across all of its formulations: when the executive acts, the burden of proof falls on those who would restrain it, not on those who would permit it.

The argument, stated in its most sophisticated form, goes something like this. The president is a co-equal branch of government, vested by Article II with the executive power of the United States. When the president takes an action for which a colorable legal argument can be made — when the action is not explicitly prohibited by statute or struck down by the courts — that action is presumptively lawful. Congress may object. The courts may intervene. But until they do, at the apex of their Article I and Article III powers, the executive operates within its proper domain.

This view has a robust genealogy in conservative legal scholarship. It is enthusiastically advanced by proponents of the unitary executive theory. It is supported, in varying degrees of breadth, by Supreme Court Justices Thomas, Alito, and Kavanaugh. Even Justice Barrett has acceded to a narrower version of it — the “presumption of constitutionality” on executive actions — in terms she considers more defensible.

I want to say, as plainly as I can, what I think of this legal tradition.

It is fascistic at its core.

I say this not as a slur, not as a term of political abuse deployed to end a conversation I cannot win on the merits. I say it as a precise philosophical and historical observation. And I want to show my work.

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In 1922, the German jurist Carl Schmitt published a short book called Political Theology. Its opening sentence is among the most consequential in the history of political thought: “Sovereign is he who decides on the exception.”

Schmitt’s argument was this. The true nature of political power is revealed not in the normal operation of law, but in the moment when the normal operation of law is suspended. The emergency — the genuine crisis, the state of exception — is where sovereignty shows its face. And whoever has the authority to declare the exception, to say the normal rules do not apply here, is the real sovereign, regardless of what the constitutional documents say.

Schmitt used this insight to argue against liberal constitutionalism. He thought that parliamentary democracy, with its deliberation and its proceduralism and its separation of powers, was fundamentally unequal to genuine political crisis. That in the moment of real emergency, someone had to decide — quickly, unilaterally, without waiting for the legislature to convene or the courts to rule. That the liberal constitutional order was, at its foundations, a fiction that serious political thought had to move beyond.

Schmitt eventually joined the Nazi Party. His legal theories were used to justify the suspension of the Weimar Constitution. This is not a coincidence.

I am not calling American conservative legal theorists Nazis. I am saying that their foundational premise — that executive power should be presumed constitutional in the absence of explicit prohibition, that the burden of restraint falls on the other branches rather than on the executive itself — is structurally Schmittian. It treats emergency as the organizing principle of executive power. It locates sovereignty in the actor who decides when the normal rules yield.

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Here is how I know this is the operating logic. Ask a conservative legal theorist to justify executive deference, and within a few minutes they will produce a hypothetical. It will involve a foreign adversary. It will involve a very short window of time. It will involve nuclear weapons, or something similarly catastrophic. It will be, in short, a genuine emergency — the kind of scenario in which everyone agrees that the president must be able to act without waiting for a congressional authorization vote.

The argument proceeds as follows: because such scenarios exist, because there are genuine emergencies in which executive speed and unilateral authority are necessary for the survival of the republic, the principle of executive deference must govern executive action as a general matter. The existence of the exception justifies the rule.

This is a logical error of the first order. And it is not an innocent one.

The existence of a genuine emergency in which the president must act without congressional authorization does not establish that all executive action should be treated as though it were an emergency. These are categorically different claims. The first is a narrow and defensible observation about genuine crisis. The second is a structural principle that operates in the total absence of any crisis at all — that licenses the executive, on any given Tuesday, to treat its own preferences as presumptively constitutional simply because no one has yet stopped it.

The Founders understood this distinction precisely because they had lived through what happens when it is collapsed. They had watched kings manufacture emergencies to justify the consolidation of power. They had seen how the logic of exception — this situation is too urgent, too dangerous, too complex for the normal procedures — becomes, in the hands of ambitious executives, the permanent operating condition of government.

This is why they did not build executive power as the default. They built it as the constrained. The war power belongs to Congress — not because the Founders failed to anticipate emergencies, but because they anticipated exactly what executives do when war-making is concentrated in a single pair of hands. They made the president the Commander-in-Chief of the armed forces, which grants authority over the conduct of war. They gave the declaration of war to Congress, which grants authority over its initiation. This was not a drafting oversight. It was the most deliberate architectural decision they made.

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The conservative legal mind has so thoroughly internalized the emergency that it can no longer imagine constitutional governance without it. The exception has become the rule. The narrow deference required by genuine crisis — the consensus carve-out that yes, when the missiles are in the air, the president must be able to act — has been elevated into a structural principle that operates continuously, in peacetime and wartime alike, as the default posture of executive power.

Once you have made that move, you have not built a legal theory. You have built a justification for whatever the executive decides to do, dressed in the language of constitutional law. The principle that was designed to handle the exception has been made to swallow the rule. And a constitutional order in which the executive is presumptively authorized in the absence of explicit prohibition is not a constitutional order in any meaningful sense. It is an executive order with decorative legislative and judicial branches.

This is what I mean when I say the tradition is fascistic at its core. Not that its proponents are fascists. Not that they intend the outcomes that follow from their principles. But that the principles themselves — the primacy of executive decision, the emergency as organizing logic, the burden of proof on those who would restrain rather than those who would act — are the same principles from which, in other countries, in other centuries, genuine fascism grew.

The distance between “the executive is presumptively constitutional in the absence of explicit prohibition” and “the sovereign decides on the exception” is shorter than its American proponents have allowed themselves to understand.

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I am aware that there is substantial scholarship here. Members of the Federalist Society, both current and former, have detailed and nuanced arguments that defend these propositions. I do not have a law degree. I have not read every brief. I acknowledge that some of the people who hold these views hold them honestly — I have argued with them over the years, and I know they are not all cynics.

And yet. The absence of a law degree does not arrest me from the observation that all of this scholarship is, at its foundation, rationalization toward predetermined ends. Conservative cultural and political ends that are, in many cases, contrary to the constitutional framework they claim to be interpreting.

The tell is in the selective citation. These scholars cling to Hamilton’s arguments in the Federalist Papers about the need for a vigorous executive — and Hamilton did make those arguments — while quietly setting aside his bracketing concerns about the concentration of executive power that appear elsewhere in the same documents. They construct a Hamilton who supports their conclusions by reading half of what he wrote. This is not scholarship. It is advocacy dressed in the costume of scholarship.

The most well-meaning of them believe something like this: that the modern administrative state has been captured by independent bureaucracies insulated from democratic accountability, and that a president with something closer to CEO-like authority — the power to direct the executive branch as a unified instrument of policy — is the corrective. I understand the concern. There is even something to it. Bureaucratic capture is real. Administrative insulation from accountability is a genuine problem in democratic governance.

But the cure they have prescribed is the disease in a different form. A president with unitary executive authority over a government of this size and complexity is not a CEO held accountable by a board. It is a sovereign held accountable by nothing except the same elections that the logic of consolidated executive power tends, over time, to undermine.

They are illiberal at heart. The most honest of them would admit it. They believe that the liberal constitutional order — with its deliberation, its proceduralism, its separation of powers, its maddening slowness — is not equal to the challenges of governing a modern superpower. They may be right that the system is imperfect. They are catastrophically wrong about the cure.

These are honestly held views. They are completely wrong. And we are living, right now, in the consequences of having allowed them to become the operating theory of three Supreme Court Justices and the constitutional framework of the current executive branch.

A president launches the largest military operation in a generation — more than two thousand targets struck, the supreme leader of a sovereign nation assassinated, an entire region set ablaze — without a declaration of war, without a congressional authorization, without so much as a serious legal memorandum establishing the basis for the action under the War Powers Resolution. The argument, to the extent one is offered, is that the president’s authority as Commander-in-Chief, combined with the executive’s inherent power to act in the national interest, provides sufficient constitutional foundation.

This is the unitary executive theory in operation. This is executive deference applied to the decision to go to war. This is the “presumption of constitutionality” extended to the most consequential action a government can take — the commitment of its armed forces to lethal conflict against a foreign nation.

Four American service members are dead. At least 115 children died in a girls’ elementary school in southern Iran. The Strait of Hormuz has been shut to shipping. The region is on fire with no clear endgame and no plan for transition of power that the president himself can articulate consistently within a single six-minute phone call.

And the legal framework that licenses all of this — that says the president may act until the courts or Congress explicitly say no — is not a fringe position. It is the operating theory of three current Supreme Court Justices. It is the intellectual inheritance of a conservative legal movement that has spent fifty years building toward exactly this moment.

This is what the theory produces. Not the hypothetical emergency in which the missiles are in the air and the president must act in seconds. The actual emergency, manufactured by choice, launched without authorization, sustained without accountability, justified by the principle that executive power is presumptively constitutional in the absence of explicit prohibition.

The Founders called the thing this theory produces by its right name. They had lived under it. They built the Constitution to prevent it.

We have built, through fifty years of careful legal scholarship and judicial appointments, a constitutional framework that enables it.

That is the authoritarian root. And it is not theoretical anymore.

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Go Deeper into the Circus

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