How a German Philosopher Predicted the War for D.O.G.E.

Carl Schmitt saw that we are ruled by exceptions

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Trump won in a landslide. He won 312 electoral votes and the popular vote. The American people have sent a resounding message to Washington. But will Washington listen?

“What does the machinery of the state ultimately listen to?” This question is grounded in political legitimacy. Legitimacy is critical to determine how a Trump administration will be able to govern, or whether it will be able to govern at all. Trump’s flagship attempt to reform that machinery is the Elon-led Department of Government Efficiency, which sets the Trump administration on a collision course with the legitimacy of the administrative state itself.

There's no better philosopher for understanding the question of legitimacy than Carl Schmitt. Schmitt was a political philosopher and jurist (legal scholar) during the late Weimar Republic, a period when the question of legitimacy was posed from all directions. In these circumstances, Schmitt became a critic of the idea of procedural rule, then called liberal legal theory. He observed that no set of rules was omnipotent, and consequently, there must be a mechanism where a human decision maker could declare an exception to the rule. From his most famous work, Political Theology:

From the liberal constitutional point ofview, there would be no jurisdictional competence at all. The most guidance the constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety.

Ultimately, all procedural rules were administered by man. All constitutional law, and law more broadly, are the extension of the ability to declare exceptions to that law. That is the significance of arguably Schmitt’s most famous quote, "Sovereign is he who decides the exception." 

“Carl Schmitt petting a Shiba Inu” by ChatGPT

Schmitt was revisited, alongside modern reinterpretation by Giorgio Agamben, during the COVID-19 pandemic. After all, for a majority of Americans alive today, the rule by exception was never more obvious. The COVID era was defined by states of emergency, rule by administrative fiat, and even shutting down entire legislatures. 

What characterizes an exception is principally unlimited authority, which means the suspension of the entire existing order. In such a situation it is dear that the state remains, whereas law recedes. Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind.

During the Covid era, federal and state executives, through states of exception, wielded degrees of power unimaginable to Americans in 2019. They forcibly closed businesses, imposed mandates and directed massive spending, sometimes without legislative vote. While the specific justifications for emergency rule subsided with COVID-19’s impact, the style of emergency rule did not. 

Many of the legal challenges both wielded against and by Trump raises precisely the jurisprudential questions Schmitt sought to answer. Likewise, many of the lawsuits and regulatory rulemaking issued to persecute Elon Musk, often explicitly citing his support for Trump as motivation, once again forces us back to this question of legitimacy. If a legal mechanism that nominally acts in the public is wielded against political opponents, at what point does it lose legitimacy? 

Schmitt’s jurisprudential legacy is important, but his analysis of the legitimacy of the executive may prove even more prophetic. Trump, alongside major supporters Elon Musk and Vivek Ramaswamy, have taken aim at the ‘three-letter agencies’ compromising the administrative state, including the Central Intelligence Agency (CIA), Food and Drug Administration (FDA), and Environmental Protection Agency (EPA). In their eyes, these agencies are unresponsive to an administration, resist that administration's goals, and resist attempts to restructure and change those organizations. Nominally, agencies which exist under an executive president owe their legitimacy to the executive, in this case the President. However, due to convoluted legal precedent, accountability is far more complicated. 

I have emphasized the word ‘nominally’ because it is at the core of Schmitt’s critique of proceduralism. Where a naive reading of procedural law would suggest that anyone who complies with “the process” gets equal treatment, Schmitt is far more skeptical. In his view, there are always areas of exception where the law suspends itself. By suspending itself, the law creates invisible conventions that become far more important to determining the outcome of an administrative action than the nominal, written law. That invisible law becomes the most consequential, and therefore most powerful form of law.

Schmitt scholarship has focused on his understanding of the legal mechanisms of the state in establishing legitimacy. Schmitt is seen as a theorist of the most powerful decisions, inherently political and polarizing in nature. Yet his criticism of proceduralism is equally sound a critique of basic competence in modern administrative politics. Even questions as simple as “can local governments build transit?”, “can the federal government write code?”, and “are the drugs that work approved and drugs that don’t work not approved?” are hobbled by a similar crisis of legitimacy. These executive agencies nominally purport to be neutral observers and act with close to equal obstructionism during nominal regular process. However, their mechanisms are regularly manipulated by the declaration of exceptions. 

What unites the FDA's emergency approval process, the categorical exclusions to the national environmental policy act, or dozens of other mechanisms to circumvent the regular process of these agencies? The answer is that the nominal process is meant to be dysfunctional, highly costly, and function as de-facto bans, while anything intended to get done receives a specially designated parallel process. It is in the administrative branch, not the judicial branch, where Schmitt’s definition of sovereignty is most vindicated. Emergency approvals and exclusions are functionally the sovereign determinant of regulation. In other words, the declaration of exceptions is the act that most affects a difference in outcome in administrative law. 

If all major action is taken by declaring exception to the usual process, then the usual process solely functions as an obstacle to what nominally that institution is supposed to get done. In totality, what the combination of dysfunctional procedural rule and rule by exception has done to executive agencies is to make them completely unresponsive to people attempting to use the regular process and solely responsive to those who wield it as a form of reactive power towards some outside exception. As I wrote for the American Mind:

[F]undamental reforms are necessary for a goal as simple as increasing government competence with software. Prematurely taking them off the table will make even a moderate good governance agenda impossible.

In her book Recoding America, former deputy CTO under Obama, Jennifer Polka, points out many of these problems in the procurement and development of software for federal and state governments. She draws a contrast between the agile and waterfall styles of software development:

Agile, that is all the opposite. You’re in a build, measure, learn cycle over and over again. You build something, if it works, you learn from it, you build more. In a waterfall paradigm, the software never touches users until the very end, in what’s called user acceptance testing. That’s very different from agile, in which you are working with users from the very beginning.

…

At the very top, you have whatever legislative body writes the law. It gets handed off to agencies who write regulations based on the law and policy, and it descends all the way down to the people who create the interfaces that administer that law…. If learning only goes one way, the people who are actually interacting with the users of the system have no way to tell the people who wrote the law what’s working and what isn’t. And we continue not to learn.

The waterfall process of the United States government software development creates an increasingly inflexible hierarchy of definitions, reducing the freedom and therefore the capability of any engineer who works for the government. It’s not just applied in software; this protocol applies to every piece of executive rulemaking passed through the administrative state by legislation or by executive order. 

This leads to a maximally neurotic and risk-averse approach to interpreting federal legislation and agency guidance, which makes it near impossible to develop any software under the usual process. It is a nominal rule by process that in reality is highly ideological. That ideology is anti-creation. Proactive government function is opposed vociferously. Reactive and dramatic states of exception are encouraged. It is as true for large public works projects as it is for Schedule F administrative reorganization. This bias is only tangentially partisan, but it is extremely ideological. It is an ideology of obstruction. 

As Vivek Ramaswamy, Elon Musk and others within Trump's inner circle take aim at the administrative state, these questions of procedural legitimacy will become impossible to separate from the question of efficiency. The rule by exception characteristic of executive agencies makes efficiency impossible. 

Doge, CryptoRank

To address this problem, Musk has suggested a new Department of Government Efficiency. Some have raised the criticism that many of the functions of improving government efficiency should nominally be done through the Government Accountability Office, General Services Administration or the Office of the Management of the Budget. Nominally, they are correct. However, the agencies initially designed to fulfill this purpose have succumbed to the same procedural self-harm as every other administrative agency. They are highly self-constraining when it comes to the usual process and solely responsive to the state of exception. 

In software development, a successful project is the product of often thousands, if not thousands, if not tens or hundreds of thousands of decisions delegated across different engineers and managers. These decisions, which require local knowledge and judgment and cannot be made from the top level, are essential to the function of those products. If you were to attempt to impose the same kind of waterfall hierarchy on modern companies, even later stage companies such as IBM, it would cause a total collapse of the company. 

Similarly, any kind of D.O.G.E. is incompatible with both the nominal and real processes of the administrative state. The administrative state will inevitably come into existential conflict with Elon, not only because of partisan leanings but as a matter of its intrinsic anti-efficiency ideology.