By What Standard?

The Office and the Record

Executive Summary

By What Standard? asks the question of every office: by what standard does the person holding it act, and who can hold them to that standard? A standard, in the book’s sense, is a public claim about the limits of one’s own power. It has to be stated, so that it can be found. It has to be general, so that it applies to allies as well as opponents. It has to bind the person who stated it. Without those three properties, it is a preference dressed as a principle.

The argument is institutional rather than electoral. The tools of the office are lawful and largely unchanged from one administration to the next: the executive order, the emergency declaration, the signing statement, the telephone call, the post. What has changed is whether any standard exists to which an office-holder can be held. The claim is that the republic is failing less from villainy than from the collapse of the standards applied to office. Villainy is the smaller part. The machinery that once made it costly no longer works.

The method is documentary. An inaugural address, an executive order, a proclamation, an opinion of the Office of Legal Counsel, a roll-call vote, a filing with the Supreme Court: each one fixes a claim at a moment, and each one can be set beside the claim that came before it. The facts are anyone’s. The judgment is the author’s, and it is the part a reader is invited to dispute.

5 Core Arguments

1. A standard is a sentence the speaker can be quoted against. Two inaugural addresses, sixteen years apart to the day, describe the authority each man received. In 2009 the subject is “we,” and the mandate comes from the people who showed up: countable, revisable, withdrawable. In 2025 the subject is “I,” and the authorizing agent is God, which cannot be audited by anyone. The book tests the difference on Libya: a 2007 questionnaire answered in the plainest terms, operations directed in 2011 without prior congressional authorization, an Office of Legal Counsel memorandum supplying the theory, and a House vote of 123 to 295 that put the argument on the record. Obama’s characteristic mode was to do the thing and apologize to the principle, leaving the principle written down. The later mode is to do the thing and deny the principle exists. A standard cannot survive a claim that the office, in the right hands, is the source of the law rather than its subject.

2. The branch that holds the check has learned to avoid using it. The 2001 authorization for the use of military force names no country and no enemy. It authorizes force against a category of people the president identifies, which is why the power to define the category is the power to continue the war. The Senate put every member on record, 98 to 0. The House voted 420 to 1 on its own bill, with Barbara Lee the lone dissent, and then passed the Senate bill without a recorded vote at all: the chamber that would fund the war never voted on the authorization. The Iraq authorization was tied to weapons that were not found, and it did not expire when the threat did. Repeal passed the House in 2021, 268 to 161, and the Senate in 2023, 66 to 30; the bills differed, and neither became law. Impeachment is the exception, because the Constitution forces the vote, and the country has now watched it twice: 48 and 47 votes for conviction in 2020, 57 in 2021, ten short of two thirds. The record was complete. The outcome was not.

3. The tools are lawful instruments, and the standard lives inside them. Truman had the steel seizure and did not have the standard, and Justice Jackson’s three zones ask what Congress has done rather than who occupies the office. Set the DAPA opinion beside the funding memorandum of January 2025 and the distinction shows in the grammar. The opinion names its source, states its limit (“no substantive right, immigration status or pathway to citizenship”), and can say no to part of what the department asked. The memorandum says “to the extent permissible,” cites no statute, sets no end date, covers a pool it describes as more than $3 trillion, and takes effect the next day at five in the afternoon. One is a legal argument a court can test. The other is a directive an agency can obey.

4. An emergency is a key, and the lock is inside the executive. The emergency Truman declared in December 1950 was still in force twenty-eight years later. A Senate committee found four standing emergencies and 470 provisions of law they switched on: enough authority, in its words, “to rule the country without reference to normal constitutional processes.” The National Emergencies Act of 1976 tried to make the key visible and temporary, and it made the emergency reportable without making it costly. Renewal is a notice. Review is a meeting. Termination is a joint resolution a president can veto. The border proclamation of 2025 states its emergency and names its statutes, and it names no condition that would end it. Where an emergency statute did not authorize the act, the Court said so, and struck the tariffs.

5. The courts can declare the standard. They cannot keep it. Marbury is the whole story in one case: the Court said what the law was, and the commission was never delivered. Universal injunctions were cut back to the parties before the court. The citizenship rule was stated, and a new order arrived with narrower categories that had to be litigated from the beginning. A district court found probable cause of criminal contempt, and the inquiry ended on appeal, on the clarity of the order rather than the lawfulness of the act. The government conceded that a removal was illegal and called it an administrative error; the order that followed required it to “facilitate” a return, not to make one. A tariff can be declared unlawful, and the refund is still 330,000 importers and 53 million entries that no judgment processes by being read. A standard that must be re-established after every new order is always one case behind.

The Desk

The centre of gravity is not the courtroom or the floor of the House. It is a signature.

The oath every officer takes is to the Constitution, not to the president, and the closest statement of what that means is the Nuremberg principle that an order is not a defense. The principle is easy at the extreme and hard at a desk, where the order is not to kill but to sign, to file, to certify, to board, to transfer custody. Richardson and Ruckelshaus resigned rather than fire a special prosecutor; Bork signed, and the signature made the firing an act of the Justice Department. Pence wrote that his oath constrained him from claiming unilateral authority over the count. Raffensperger was asked to find 11,780 votes and answered that the number did not exist. Senior lawyers at the Justice Department told the president they would resign before they would send letters the department had not found to be true.

None of them were certain. They were responsible. That is the distinction the book keeps returning to: certainty is not the standard, and the officer who says “I was told” has not answered the question.

The Account

An account is not a narrative. It has five parts: the act, the actor, the authority, the cost, and the person who must answer. A press release has a date and a speaker and none of the other three. A docket entry has all five, which is why the docket entry is dull and the press release is readable.

The Constitution makes the account a duty twice, once for money and once for the state of the union. The instruments that make it real are unglamorous: the docket, the inspector general’s report with its dual audience, the roll call, the audit, the ledger. The forms that prevent it are equally plain: the signing statement that interprets a statute after the vote, the post that leaves no record and no addressee, and the passive voice that admits an act and removes the person who did it.

A record can show a violation and produce no consequence. The book says so, and does not treat the gap as a reason to stop writing things down. An account without a consequence is history, and history is the memory that makes the next consequence possible.

The Next Occupant

The last chapter is addressed to whoever takes the oath next, and it is deliberately not a prediction. The oath is the one sentence in the ceremony the occupant does not write, and the only one that can be used against the occupant afterward. Ford is the case: an unelected president inheriting a record, choosing a public act, naming the person, the offenses, the authority and the reason, and paying for it.

The standard compresses to a sentence a candidate could be asked to sign: I will not claim a power I would deny to a president of the opposite party, and I will publish the record of what I do with it. It is a limit rather than a promise, which is what makes it checkable. The first test will not be a constitutional crisis. It will be an order that is convenient, a memorandum that is not published, a court order that is slightly ambiguous.

Points I Should’ve Made

The book argues from generality: a rule that applies only to opponents is a weapon, not a standard. Its own evidence does not entirely meet that test. Almost all of the recent record comes from one administration, and the comparison case, the Obama years, rests on a single extended example in Libya. A reader who wants to say the standard is being applied asymmetrically has a fair complaint, and the honest answer is that the earlier period supplies fewer documents to read rather than fewer temptations to resist.

The book also puts the weight of the standard on the officer at the desk and then asks that officer to accept a cost the book does not fully count. Staying and refusing assumes protections that are themselves political, and it says little about the mortgage, the family, and the career that make refusal expensive. I should have written about what a republic owes the officer who asks for the legal basis in writing and is told to leave, because a standard that depends on heroism will run out of heroes, and the book says as much without following it far enough.

Bottom Line

By What Standard? is not a book about a president. It is a book about a sentence: stated in public, general in its application, binding on the person who said it. The record it assembles is dated, signed, and dull, which is the point. A republic is kept by people who ask what the legal basis is, write down the answer, and vote on what they read.

“If it is not right, do not do it: if it is not true, do not say it.” — Marcus Aurelius, Meditations 12.17 (trans. George Long, 1862)

Read more about the book: By What Standard?.

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