The Bipartisan Case for Carl Schmitt

Implementation is when you decide the exception

0 Jen Pahlka in Statecraft

So I was reading the Santi Ruiz interview of Jen Pahlka, deputy CTO under Obama. TLDR: she just wants government programs to actually work. Santi asks Jen whether Schedule F, the Trump civil service reform vastly expanding execution discretion over hiring, is a good idea. She gives a circuitous rejection of it. I included the long quote to show the long quote, but the most important part is the first three paragraphs. 

I think Schedule F is dangerous, because civil service protections are important, and there can be a disregard for what public servants do. But I also think the status quo is intolerable. We need to make it easier to hire better based on real assessments of people, better support, better training, and also easier to fire.

The left doesn't like to talk about that, but I absolutely believe that is important. And it can be done without significant congressional action. It can be done by setting a different tone from the top about what's important. It's less important to check every box and make sure that the process that you run to hire somebody is unassailable if it’s a nine-month process. It's more important that you just hire the person in the timeframe that's needed. 

And we need leadership. Whoever it is needs to set that tone. I do not want Trump in charge doing Schedule F, which is like setting off a nuclear bomb, but nor do I want us to continue on our current path. 

From my understanding, time to hire has gone up in the Biden administration, not just relative to the Trump administration. It’s also up relative to the Obama administration. I think that's the wrong direction, in a way that’s far more critical to the future of our country than people realize.

We're in this crisis of state capacity, and there are really only three ways to build state capacity. You can have more of the right people doing the right things, you can focus them on the right things, and you can burden them less.

I'm very interested in burdening them less, but we also are going to have more of the right people doing the right things. If we take nine months to hire people and don’t assess their skills when we do, it’s incredibly destructive. 

So I would be looking for far bolder leadership from the left, or frankly anybody, on this issue, so there’s a sane reform agenda on the table instead of the insanity that is Schedule F. Part of that bold leadership is not using the excuse that since Congress hasn't acted, we can't do anything. There are programs like the Subject Matter Expert Qualifying Assessments [SMEQA] that show very clearly that you can do speedy, accurate, fair hiring of skilled professionals with the existing law and policy that we have. We do not need Congress to change anything to do SMEQA. But you have this incredibly successful pilot that scales across government very slowly, because our leadership isn't calling it out as a priority, and isn't saying that the results we get through SMEQA are more important than all of these little rules that have accumulated over the past 100 years in the agency hiring manuals. This is a solvable problem by others besides Trump. 

In the interview, Santi interrupts her when she’s still going on about how to do a better alternative to Schedule F, which is definitely categorically different from Schedule F. 

Naturally when I see these circuitous denials, I like to bite the bullet and just write the bipartisan, good governance case for Schedule F. Then I kept reading and realized there’s a much better article to write.

1 That One Nazi Jurist

Who is Carl Schmitt? As wikipedia puts it, “Carl Schmitt (/ʃmɪt/; 11 July 1888 – 7 April 1985) was a German jurist, political theorist, geopolitician and prominent member of the Nazi Party.”

As an intellectual descendent of postmodern philosophers, I am of course following the precedent of appropriating Schmitt for progressive causes, in this case the progressive causes of making the healthcare.gov website work and giving an OTA to literally anyone who asks. 

Arguably, the most famous Schmitt quote is “Sovereign is he who decides on the state of exception.” Schmitt is speaking in the context of emergency situations which threaten the state itself. The Covid pandemic is a recent example of a state of exception, which did indeed lead to an authority deciding both to declare it a state of exception, and decide what happens due to it.

What sparked my interest in connecting Pahlka’s book and interview to Schmitt is the realization that the state of exception does not just occur when the state is threatened, but literally happens all the time, every day, in pretty much every part of the modern US federal government. 

In Political Theology, Schmitt makes a lengthy criticism of the dominant attitude among philosophical liberals about unilateral decision making. 

Because a general norm, as represented by an ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot there- fore be entirely derived from this norm. "When Robert von Mohl said that the test of whether an emergency exists cannot be a juristic one, he assumed that a decision in the legal sense must be derived entirely from the content of a norm. But this is the question. In the general sense in which Mohl articulated his argument, his notion is only an expression of constitutional liberalism and fails to apprehend the independent meaning of the decision.

While this terror was once reserved only for the head of government, it is now the predominant attitude of both US parties towards everyone from the President to federal contractors to software engineers to interns. 

Another Pahlka longquote, this time one I want you to read in full:

We live in a world with partisans on the other side looking for the opportunity to bring you down. Tactically, how do you deal with that?

Let me edit something I said earlier. I don’t want leaders to tell their people to be flexible with the letter of the law. Generally, the law is written in a way that's highly flexible and gives bureaucrats enormous amounts of ability to exercise judgment. It's following very maximalist interpretations of the procedures that derive from that law that are the problem.

So again, take veterans preference. It's totally fine. According to the law, you're supposed to apply it after a qualifying assessment. If we were actually doing what the law said, we would be honoring the intent … Out of fear of introducing bias into a process, we miss the whole point of merit – and do a great disservice to our veterans in the process.

Or NEPA, right? The authors of NEPA [the National Environmental Policy Act] did not say there's a four-year review period before we can approve a permit … a lot of this four-year process that NEPA requires now isn't just because bureaucrats maximized everything. It's because they're going to get sued. But those two things come together. 

When you ask what I want a leader to do, let's take NEPA review as an example. You have a project that is put forth, and it's going to need to get through this process. Let's say 12 different agencies will likely have to touch this. What I want is for leadership to say, “Here's the lead on this who's going to shepherd this through all 12 agencies. And that person's job is to really assess where the risk is.” 

There's several places where you are open to lawsuits on a project. But then there are thousands of pages of things that absolutely no one cares about, and they're not going to sue about, and they aren't required by law. They're just the standard procedure that people go through unless they're told otherwise. 

…

I'm looking for product management in the sense of a leader saying, “We need to get an A+, 100% on these areas, because that's very likely where we're going to get sued. These tiny little details over here that were required for some project ages ago, because it was this weird edge case, don't really apply to us. Don't do them.” 

So as it turns out, if you’re doing pretty much anything, you run into a state of exception very quickly. This might not have been true when Schmitt was writing Political Theology (1922) and Warren G. Harding was president, but it’s true today. 

2 The Shallow State

So there’s this right-wing populist critique of ‘the deep state’, which basically says that the delegation of powers from the Senate to unelected executive agencies has created this new form of sovereignty by a technocratic expert class that’s out of touch with voters. But in Schmittian terms, the experts have no sovereignty. 

Most charitably, maybe the CDC has soverignty during a pandemic, but they were complaining about the ‘the deep state’ way before that. Most of ‘the deep state’ literally has no sovereignty. It cannot decide the exception. 

It’s a shallow state. If it were a deep state, we would have fewer problems. 

Another quote:

The Niskanen Center has a great report out now on the challenges in transmission permitting, where they cite the example of the TransWest Express project, where “although routine coordination calls were held weekly and monthly for more than five years, “major issues remained unresolved as decisions were only finalized if there was a ‘consensus.’” Was everyone on those calls just too polite and continually deferred to their colleagues in other agencies? Or was there no one there with the authority to resolve conflicts, make decisions, and move the project forward?

I guess what I’m asking is, isn’t that obvious? Doesn't this exist in the business world? If you want something done, you tell someone this is their project. Help me understand why that's such a foreign concept. 

[Pahlka laughs] Yeah, it's totally obvious. And I don't think it's happening. It's not to say that individual people aren't trying to take on that role. It's not to say that anybody here is acting with malfeasance or even incompetence. It's that our system doesn't value that kind of leadership in implementation. It’s valued in politics, and in policy. But when it comes to implementing that policy, the people with the power to make things happen are busy with other priorities.

So Schmitt’s interpretation of what Pahlka is saying might be that there’s no sovereignty. ‘The deep state’ is ruled by literally no one. The null set. The sovereign is the voice of God, or maybe Chief Justice Roberts, saying that if the laws are contradictory when read maximally risk-aversely, literally no one in the US government can do anything about it.

3 Schedule F Doesn’t Go Far Enough

Recall:

And we need leadership. Whoever it is needs to set that tone. I do not want Trump in charge doing Schedule F, which is like setting off a nuclear bomb, but nor do I want us to continue on our current path.

Pahlka compares Schedule F to a nuclear bomb, but is it? Would Schedule F lead to a huge explosion in the efficiency of government? Would the newly minted Trump administration just decide the exception and end adversarial legalism? 

All I want is for everyone to get an OTA, or all AI procurement to get an OTA. I wouldn’t even take 50/50 odds that this is going to happen under Trump, Schedule F or not. Jen’s plans on the other hand … might significantly increase the odds of that happening. 

What I’m saying is that from a Schmittian perspective, product management leadership is a more radical alternative to Schedule F, in that it actually creates sovereignty. From the perspective of a progressive postmodern Schmittian, that’s a good thing. 

4 Implementation is when you decide the exception

There's this fantastic book from 1973 called Implementation

…

[Pahlka reads aloud.]

“No phrase expresses as frequent a complaint about the federal government as does ‘lack of coordination.’ No suggestion for reform is more common than, ‘What we need is more coordination.’

Yet when an evil is recognized and a remedy proposed for as long and as insistently as this one has been, the analyst may wonder whether there is not more to it. Participants in a common enterprise may act in a contradictory fashion because of ignorance. When informed of their place in the scheme of things, they may be expected to behave obediently. 

If we relax the assumption that a common purpose is involved, however, and admit the possibility, indeed, the likelihood of conflict over goals, then coordination becomes another term for coercion. Since actors A and B disagree with goal C, they can only be coordinated by being told what to do and doing it. Coordination thus becomes a form of power… 

Coordination means getting what you do not have. It means creating unity in a city that is not unified… It means compelling the federal agencies and their counterparts to act in a desired manner at the right time, when achieving this purposely is precisely what you cannot do. 

You can't learn how to do it from a slogan that tells you the way to get what you want is to already have it. The invocation of coordination does not necessarily provide either a statement of or a solution to the problem, but it may be a way of avoiding both when an accurate prescription would be too painful.”

To me, this is all screaming: you need leadership. You cannot just invoke the notion of coordination. It is a meaningless thing to say. 

The book’s ultimate conclusion is not that this failed because of a lack of coordination, or any of the other things that they talked about. The problem is the separation between policy and implementation. That is what caused that project to fail, and what causes most projects to fail. 

To me, this is all screaming progressive Schmittianism. From Political Theology again:

Every legal thought brings a legal idea, which in its purity can never become reality, into another aggregate condition and adds an element that cannot be derived either from the content of the legal idea or from the content of a general positive legal norm that is to be applied. Every concrete juristic decision contains a moment of indifference from the perspective of content, because the juristic deduction is not traceable in the last detail to its premises and because the circumstance that requires a decision remains an independently determining moment.

5 Is Right-Wing Pahlkaism Possible?

In the spirit of bipartisanship, let’s talk about the possible adoption of Pahlka’s ideas by people across the aisle from postmodern philosophers. Let’s say you’re a Heritage Foundation scholar who is preparing for the next Trump administration. How would you interpret Pahlka’s ideas? 

Republicans have one major advantage and one major disadvantage.

The Republican advantage is that they don’t have nearly as much of an everything bagel. The intra-party accumulation of labor interests and cutouts and race/sex/LGBTQ spoils just … doesn’t exist. There are a few inevitable special interests, but not nearly of the same size or power. And they mostly stay in their lane. 

The Republican disadvantage is that there simply are not as many Republican elites.

This is theoretically a problem that can be solved the obvious way using the market mechanism, by raising administration wages under a Trump administration and doing hiring reform. They would need to put someone in a meta-leadership program to oversee and hire for all of these leadership reform projects within government. This could even be its own separate centralized task force!

Surely, in the event either president made these reforms, both parties would unite in celebration of decisionism!