Trump, Libertarians, and the Napoleon Complex

When do the ends justify the means?

He who saves his country does not violate any law.

This famous quote is attributed to Napoleon. And also, now, to Donald Trump.

But it also seems to be the view of certain libertarians, a strange concept I am struggling to wrap my mind around.

Max Borders and I have been engaged in a debate about the legitimacy of the Trump/DOGE actions in the first few weeks of Trump’s presidency. I am deeply skeptical that they are legitimate, while Max - if not exactly in agreement with Napoleon Trump - argues they are legitimate. I don’t write this to attack him. This is a friendly debate, but a very serious one about where liberty-minded people should stand in relation to the Trump administration. It’s not crucial that I persuade Max, but I think it’s crucial that the opposing argument be made as strongly as possible.

In a recent post responding to several of his critics (me included), he creates a 2x2 matrix of the justice and legality of actions. Note: I think his columns should be labeled legal and illegal; it’s the outcome in the cells that should be described by the term legitimacy. But that’s just a quibble for clarity. His general point is clear: there is a category of actions that are illegal but just.

I agree. Helping slaves escape, hiding Jews from the Nazis, and taking a boat without permission to save a drowning person are cases that come to mind. I would add hiding illegal immigrants from ICE, although I know many people would not agree.

But note that three of those examples is of an individual taking action against the power of government, and the other is an individual only temporarily depriving someone of their property in order to directly save a life.

By contrast, Max - and Trump and Napoleon - are talking about a government actor taking questionable action, and not for the person of saving particularized individual lives. And not just any government actor. This isn’t like Edward Snowden revealing that the government is engaging in mass spying on the American people. It’s the chief executive attacking the prerogative of the legislative branch, and while we generally call the three branches of government co-equal, if any one of them can be said to be Constitutionally the superior branch, or at least first among equals, it’s Congress.

That’s altogether different, and inherently more dangerous. Are there conceivable situations in which it’s legitimate? Perhaps. I’m open to suggestions. But I think they’ll be far less obvious and intuitive than the other examples of justifiable illegality mentioned above.

I commented on his post with an analogy I’ve used with increasing frequency lately: That cheering some ostensibly good thing Trump is doing is like the old joke about Mussolini: “At least the trains ran on time.” This is admittedly a pretty blunt challenge, but I stand by it. In my comment, I emphasized that not only did I not believe we’d get real auditing and serious financial controls from DOGE’s activity (I think we’ll get unilateral executive budget power), but even if we did get real auditing and financial controls, rooting out corrupt and wasteful spending and giving us the “right” policies instead of what Congress has passed, it’s not worth the price of shifting to unconstrained executive authority.

In reply, Max wrote:

For me, it's not making the trains run on time, instead it's moving from a strictly procedural outlook to a sense of urgency around justice. For far too long, the Fourth Branch has grown up and hidden behind procedural minutiae. In my view, there is a threshold beyond which we cannot let zealous fidelity to process create gross asymmetries between us and freedom's adversaries. They have never cared a jot about procedure until they thought it would protect them. The whole thing is an empire graft and worse. So you have this grotesque, authoritarian administrative state. Beyond a certain point, we can't wring our hands about whether it gives the executive too much power. The cancer is Stage Three. The patient needs surgery and chemo. We've got one shot at counterpower, and we'd better take it. I fully acknowledge that it comes with risks, though I still do not see illegality in this. The President has cause due to malfeasance and can appeal to the "taking care" clause.

OK, that’s a serious challenge, and I take it seriously. Let me note our essential agreement about the administrative state. I despise it, and I’m one of those who staunchly cheered the Supreme Court’s rejection of Chevron deference against those who bemoaned the prospect of even mild constraints on bureaucratic freedom of action.

But I can’t travel this path with him. I’ll address a few specific points.

The cancer is Stage Three: Analogies like these always make me cautious. They’re essentially an appeal to emotion unless a clear framework is given. Here’s a framework for the stages of cancer.

Stage 0 cancer: There are abnormal cells, but they haven’t spread beyond where they started. Stage 0 can also refer to pre-cancerous cells. Most stage 0 cancers are curable.

Stage I (1) cancer: The tumor is smaller and contained to one area. It hasn’t spread to nearby lymph nodes or other areas of your body.

Stage II (2) cancer: The tumor has grown larger and possibly spread to nearby lymph nodes.

Stage III (3) cancer: The tumor has grown deeper into surrounding tissues and has potentially spread to nearby lymph nodes.

Stage IV (4) cancer: Cancer has spread (metastasized) outside of the original site to other organs or distant areas of your body. This is also known as metastatic cancer.

Honestly, I’m not sure why Max doesn’t call it stage 4 cancer. If it’s not metastatic, I’m not sure why not.

But here’s an essential problem with the analogy: Cancer will kill the patient; it’s not at all clear to me that the U.S. is dead or dying. The economy continues to grow, the upper middle class is growing faster than the lower middle class. Life expectancy, setting aside Covid, continues to increase. I could go on at length about what I see as problems that need to be resolved, but from a global perspective, we’re still rather blessed. Economically, we’re not Venezuela, or Cuba, or Argentina before Milei, and in terms of freedom we’re not Russia, China, Myanmar, or Iran. The U.S. is 8th of 195 countries in GDP per capita, over 3X the global average, and Freedom House gives us an 83 out of 100 on freedom, too low, but still qualifying as free. We could do better, and we have - I think - some profound problems (some of them supported by Trump), but if this is death, it’s not that bad.

If perhaps we’re talking about our constitutional system being cancerous, I’m inclined to agree, despite little formal Constitutional change. Part of that change is indeed the growth in federal power, as embodied in the executive branch agencies, but another part of that change is the on-going growth of executive power. I don’t see how a further expansion of executive power cures that cancer.

The patient needs surgery and chemo: Maybe, but that’s not what DOGE is doing. Surgery, chemo, and radiation are controlled, well-directed therapies. DOGE is better described as chainsaw surgery, and not like those clever chainsaw artists making eagle sculptures for the tourist trade, but a reckless guy swinging the chainsaw wildly in the operating room. Think of Musk’s favorite saying, “Move fast and break things.” There is a place for that, but don’t try to tell me that it represents the method of medical treatment.

We've got one shot at counterpower, and we'd better take it: We? There is no we here. This is the President’s power; it’s not my power, and it’s not your power. It never will be. It will simply pass on to the next executive, further extending or possibly completing a process that has been in process for a century, presidential supremacy. But look around the world and throughout history at systems with unchecked executives - how many cases can you find where the public was able to exercise power, or where they exercised their powers for the general benefit of the public? If you want the Singapore of Le Kwan Yew, the South Korea of Park Chung Hee, or the Taiwan of the Kuomintang, maybe you’ll get that, if you’re lucky, and I’m hard-pressed to see that as a worthwhile trade. But you might get a Viktor Orban, Daniel Ortega, Recep Erdogan, Yoweni Mouseveni, or Rodrigo Duterte.

Or, perhaps, we’ll get a Napoleon. What can we honestly say of his efforts to save France?

The President has cause due to malfeasance: Constitutionally, he sure as hell does not! This is where Max’s distinction between legal and just comes into play. There is no serious way to argue that administrative malfeasance legally justifies unilateral presidential authority. So this can only work as an appeal to justice. But that appeal requires a much more careful and developed argument than I’ve seen from anyone yet. And while I’m always open to well-developed arguments, this one seems like quite a stretch to me. I ought to sit down and try to work up the argument myself, try to steelman it. But “X justifies unconstrained power” has always been a complete non-starter with me. This smacks of the “crime is out of control, so we have to give the cops free reign” argument, which, notably, Trump himself has made.

The President can appeal to the "taking care" clause: Article II, Section 3, of the Constitution: “he shall take Care that the Laws be faithfully executed.” I see the faint plausibility of this, but it’s a stretch. It smacks of throwing things at the wall to see what sticks. Certainly a President can legitimately investigate any bureaucratic agency and its actual spending and operations. That’s not debatable. But that doesn’t mean a President can unilaterally shut things down before investigating them; that’s the opposite of faithfully executing the laws. Appeal to the “Take Care” clause quite literally says the President can refuse to take care, can refuse to implement laws, in order that he can take care. And, to bring back in what should be our ever-present skepticism, it requires a faith that Presidents who refuse to implement laws duly passed by Congress are actually going to do so in good faith.

Do I have anything better to offer? Admittedly, no. And I really do dislike saying no to a proposed solution to a real problem when I have nothing better to offer. But when I think that proposed solution is about 99% certain to be worse than the current situation, and when I think it will be implemented in bad faith not just by this President but any subsequent President who inherits this expanded unilateral power, I am compelled to coopt James Madison’s words, and say “It could never be more truly said than of [this] remedy, that it was worse than the disease.”