A tweet on X announced a new billboard on I-95 that proclaims “There Is No 4th Branch of Government Called ‘Elon Musk!’”

We got the billboard up on i95. Hat tip to @jamie_raskin Please chip in. https://t.co/tLqBQPT6ep pic.twitter.com/1AMmW5yBh3

— Claude Taylor (@TrueFactsStated) February 8, 2025

No, there isn’t.  Neither, however, is a fourth branch of government that I bet the tweeter likes: the Execulative. 

What is the “execulative” branch?  It is a hybrid that puts an office or an officer into the executive branch but then pretends he cannot be fired without legislative (i.e., Congressional) assent.  Take, for example, the inspectors general (IG) that President Trump dismissed.  It’s claimed his action was “illegal” because Congress passed a law that says IGs can’t be fired without telling Congress why.

As National Review notes, even Congress doesn’t quite believe its bluster.  Yes, Congress passed that law but attached no penalties to its “violation.”  So, other than an Elizabeth Warren Nastygram, even if the president fired those IGs, what’s going to happen to him?

For those who are actually interested in constitutional crises and U.S. history (a subject only selectively taught in most American schools) Congress’s first foray into execulative regulation of Executive Branch employees was the Tenure of Office Act of 1867.

Andrew Johnson fired Secretary of War Edwin Stanton without congressional approval, in violation of the Tenure of Office Act.  Congress said “put him back!” Johnson refused and became the first president to be impeached.  Removal failed by one vote.  In Profiles in Courage John F. Kennedy listed Edmund Ross, the Kansas Republican whose vote likely saved Johnson, for protecting American constitutionalism.  He protected it by protecting separation of powers though, no doubt, Johnson (and Kennedy’s) fellow Democrats would likely today misrepresent Ross as “enhancing Executive tyranny.”  Which is it?

The Supreme Court answered some 60 years later when it struck down a similar law that said presidents couldn’t fire postmasters.  Well, guess what: Democrat Woodrow Wilson, of the “rule of law” party, did.  And the Supreme Court upheld him, declaring the legislative restriction unconstitutional.  Up until now, most constitutional scholars recognize Myers v. United States as a basic norm of separation of powers.  No doubt Rhode Island Senator Sheldon Whitehouse, who is haunted by Supreme Court “corruption,” might suggest that the Myers Court was “unethical” because the Chief Justice who wrote the decision—William Taft—also once happened to be the 27th president.  And he didn’t recuse himself!

So, in challenging legislative claims that purport to control the executive, is Donald Trump the “fascist destroyer of institutions” his opponents tar him to be, or in line with a long string of legal theory about separation of powers that says Congress does not run the Executive Branch?

There are, alongside the execulative, other mutant fourth branches of government.  One of them is the “independent agencies” model, a vision of the early 20th century Progressive mind that preferred unelected “experts” rather than elected (and, therefore, accountable) politicians making policy decisions.  Rhetoric notwithstanding, these guys and their modern heirs do not believe America is a “democratic republic.”  They want a Platonic republic, where philosopher-kings (i.e., elites) make decisions for the deplorables stuck in the dark cave.  Again, despite the talk, their issue is not with oligarchs but whose oligarchs: Elon Musk, bad; George Soros & Son, good.

The independent agencies model is very much at issue today: in the past 100 years, Congress has routinely established “independent agencies” that make policy but whose control by the executive (of whose branch they are nominally part) is limited and indirect.  When FDR, despite being part of the party of “rule of law,” decided to fire a Federal Trade Commissioner in violation of the law, the Supreme Court struck him down, doing all sorts of angelic dances on pinheads to distinguish Humphrey’s Executor v. United States from Myers.

The critical question is: Can there be an entity in the executive branch that does not account to the executive?  Perhaps Humphrey’s Executor is ripe for reconsideration, especially after last year’s decision that put to rest the judicially-contrived Chevron Doctrine (courts should defer to how administrative agencies interpret/apply the law) on the grounds that Congress cannot hand over its legislative role in major policy matters to unelected agencies.

Lastly, there is no fourth branch called the “Deep State” (at least in constitutional theory).  The Civil Service Act was not intended to create a permanent bureaucracy that pursues its “expert” policies regardless of Presidential direction, whether by outward opposition or inward “slow-walking” of mandated changes.  The truth is, however, that too many bureaucrats have had the idea of “outlasting” changes they don’t like while crying supposed “partisan interference” when called to task for their practical insubordination.

In Catholic ethics, there’s a wise principle St. Thomas Aquinas invokes: As you go from general principles (“do good; avoid evil”) to particular applications (“John should not do x right now to Mary”), the possibility of error, of making mistakes, increases.  Extrapolating that insight to politics, we can say that getting lost among the trees of case law sometimes makes us lose sight of the constitutional forest.  

The most basic principle of American constitutional law is the strict separation of powers and the (usually strict) patrol of those borders by the judiciary.  It would be worthwhile recalling that basic separation of powers, which includes the idea that Congress does not run the executive branch.

There is no fourth branch of government.  But the danger from that fourth branch is not Elon Musk and his Musketeers doing what the president told them to do within the Executive Branch.  It is people outside the Executive Branch wanting to manage executive decisions, whether that means claiming violations of law, ganging up without appointments in front of Cabinet Departments demanding unrestricted access (even rookies in D.C. know you don’t go to another agency without a point-of-contact to meet you), or propaganda billboards on I-95.

Image generated by AI.