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The Deep State Is All Too Real

  

Category:  Op/Ed

Via:  vic-eldred  •  last year  •  22 comments

By:   David Bernhardt

The Deep State Is All Too Real
The federal government has 2.2 million civilian employees, but only 4,000 of them are political appointees the president can remove at will. Career bureaucrats, who aren’t elected by the American people or appointed by the president, therefore make many major policy decisions. Civil-service protections make removing these employees incredibly difficult—and they know it.

S E E D E D   C O N T E N T



There are two competing conceptions of American governance: the version students are taught in the classroom, and the one that exists in the real world. Grade-school civics teaches that Washington is designed to operate under a system of checks and balances, constrained by the Constitution and empowered by the consent of the governed. In practice, however, power has become concentrated in the executive branch and largely wielded by unaccountable career bureaucrats. The notion of a “deep state” isn’t a conspiratorial talking point but a manifest political reality.

The separation of powers is an animating principle of our nation’s founding documents. As the Constitution outlines, the U.S. has three distinct and coequal branches of government: a legislature that passes laws, an executive branch that implements them, and a judiciary that interprets them. This built-in division is meant to restrain government overreach and prevent abuses of power. The president and members of Congress regularly stand for election to ensure the government is accountable to the governed, and the judiciary serves in good behavior to ensure that justice is dispensed impartially.

While this sounds nice in theory, the federal government typically doesn’t honor it in practice. Congress has delegated much of its lawmaking authority to the executive branch since the 1930s. Federal agencies now issue regulations that have the force and effect of the law. “Administrative judges”—executive-branch employees—routinely preside over trial-like proceedings without juries, letting agencies act as both prosecutor and judge.


Under the Supreme Court’s  Chevron  doctrine, courts generally defer to the executive branch’s interpretation of the law—both in regulatory and enforcement proceedings. Many of the Constitution’s checks and balances, from the separation of powers to the right to jury trial, have fallen by the wayside.

So has much of the government’s democratic accountability. The federal government has 2.2 million civilian employees, but only 4,000 of them are political appointees the president can remove at will. Career bureaucrats, who aren’t elected by the American people or appointed by the president, therefore make many major policy decisions. Civil-service protections make removing these employees incredibly difficult—and they know it.

The system presumes career employees will implement the law and presidential directives irrespective of their personal preferences. To their credit, many do. During my time in the Interior Department, I saw many career employees faithfully work for the American people.

Unfortunately a great number of their colleagues don’t. I vividly recall asking one Interior Department employee, whose remit included work on an endangered mouse species, what her job was. She enthusiastically replied: “I speak for the mice! I speak for the mice!” She was well-meaning, but “speaking for the mice” wasn’t in her job description. Her job was to apply the provisions of the Endangered Species Act faithfully—both the protections and limitations Congress wrote into the statute. She instead appeared to be an advocate fighting for a cause.

Many career bureaucrats take this view. During my 12 years in government I often saw career bureaucrats push their preferred policy passions irrespective of agencies’ rules, federal regulations or the law. This included career employees needlessly limiting recreational activities in national parks, imposing unneeded burdens on historic preservation and inappropriately restricting activities in the name of species preservation. The list goes on, as does our nation’s departure from representative democracy.

Such behavior is especially troubling when the bureaucracy is out of step with America. While recent elections show the American people are closely divided politically, the federal workforce isn’t. Democrats outnumber Republicans by nearly 2 to 1 among career federal employees, creating an imbalance that makes it very difficult to advance policies that partisan bureaucrats oppose.

America saw how our partisan bureaucracy works when the New York Post reported on Hunter Biden’s laptop in October 2020. Though the story credibly documented that the Biden family had benefited from profitable influence peddling with foreign interests, 51 former intelligence officials publicly claimed the laptop had “all the classic earmarks of a Russian information operation.” The media, along with tech platforms like  Facebook  and Twitter, then used the letter to justify burying the story.

And buried it was, never mind that the laptop’s contents were genuine, as Hunter has admitted. To make matters worse, the House Judiciary and Intelligence committees have since uncovered that  Joe Biden ’s presidential campaign helped organize the letter. In other words, a group of primarily career intelligence officials that ought to be disinterested in political matters endorsed a partisan ruse to affect a presidential election.

Fortunately, there are signs of hope. A president with sufficient political will can make the bureaucracy accountable under current laws. In 2020 President Trump issued the Schedule F executive order converting senior policy-influencing career bureaucrats into at-will employees. While the order would apply only to a small portion of the total federal workforce, it would cover the most powerful career bureaucrats. Mr. Biden rescinded this order two days after taking office, but a future president could bring it back.

The high court also announced last month that it will hear arguments next term in  Loper Bright Enterprises v. Raimondo —a case that will reconsider  Chevron  deference. If the justices overturn the precedent, or at least significantly pare it back, executive agencies will no longer get to administer  and  interpret the law. Such a ruling would go a long way in restoring essential constitutional checks and balances.

The Supreme Court has also made it easier to sue over separation-of-powers violations. In  Axon v. FTC , which the court decided last month, all nine justices agreed that Americans can immediately sue agencies over separation-of-powers violations without first having to spend years spinning their wheels in administrative proceedings. In a concurrence, Justice Clarence Thomas added that the court should re-examine whether agencies can constitutionally impose fines without a jury trial. A case addressing that very issue,  SEC v. Jarkesy , may come before the high court next year.

The government doesn’t operate the way Americans are taught in elementary school. But between pending court cases and potential executive-led reforms, the theoretical checks and balances and democratic accountability may soon become much closer to reality.


Mr. Bernhardt served as interior secretary, 2019-21, and is author of the new book “You Report to Me: Accountability for the Failing Administrative State.”


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Vic Eldred
Professor Principal
1  seeder  Vic Eldred    last year

This problem had been growing for decades.

It hadn't become obvious until 2017.

 
 
 
Just Jim NC TttH
Professor Principal
1.1  Just Jim NC TttH  replied to  Vic Eldred @1    last year

Thanks for this article. And isn't it odd that it became obvious when some well meaning CiC vowed to drain the swamp............

 
 
 
JohnRussell
Professor Principal
2  JohnRussell    last year

Civil service is a type of institutional system that exists around the world. We arent going to abandon it in America for the advantage of people like Donald Trump. The idea that Trump could or should decide who can work in the federal government is ludicrous. 

By continent or region [ edit ]

Africa [ edit ]

Asia [ edit ]

Europe [ edit ]

North America [ edit ]

Oceania [ edit ]

South America [ edit ]

Pay and benefits [ edit ]

 
 
 
Just Jim NC TttH
Professor Principal
2.1  Just Jim NC TttH  replied to  JohnRussell @2    last year
The idea that Trump could or should decide who can work in the federal government is ludicrous. 

From the article.....................

but only 4,000 of them are political appointees the president can remove at will

So c3pJoe can decide and that would be okay then...............???

 
 
 
JohnRussell
Professor Principal
2.1.1  JohnRussell  replied to  Just Jim NC TttH @2.1    last year

Your comment makes no sense. Trump wants to get to decide who does or doesnt work in the federal government.  Why dont we just put a gun to our nations' head and blow our brains out instead? 

Mr Trump has previously called on putting in new requirements for federal employees. In March of last year, he called on passing laws that would make every employee who works under the executive branch fireable by the president.

“We will pass critical reforms making every executive branch employee fireable by the president of the United States,” he said at the time. “The deep state must and will be brought to heel. It’s already happening.”

 
 
 
Vic Eldred
Professor Principal
2.1.2  seeder  Vic Eldred  replied to  JohnRussell @2.1.1    last year

Any president should be able to fire unelected federal employees, just as Obama did with the Department of Justice when he became president.

 
 
 
Just Jim NC TttH
Professor Principal
2.1.3  Just Jim NC TttH  replied to  JohnRussell @2.1.1    last year

What's your point? Any PotUS has the ability to put in any requirements they want with approval of Congress and the courts.

 
 
 
JohnRussell
Professor Principal
2.1.4  JohnRussell  replied to  Just Jim NC TttH @2.1    last year

800

 
 
 
Just Jim NC TttH
Professor Principal
2.1.5  Just Jim NC TttH  replied to  JohnRussell @2.1.4    last year

And?????????????? When all else fails, MEME THE HELL OUT OF 'EM.........LMAO

 
 
 
JohnRussell
Professor Principal
2.1.6  JohnRussell  replied to  Vic Eldred @2.1.2    last year

As i said, civil service exists around the world. Why do you think that is the case? 

 
 
 
Vic Eldred
Professor Principal
2.1.7  seeder  Vic Eldred  replied to  JohnRussell @2.1.6    last year

We are not talking about Civil Service.

 
 
 
JohnRussell
Professor Principal
2.1.8  JohnRussell  replied to  Just Jim NC TttH @2.1.5    last year

Are you ok today?

 
 
 
Just Jim NC TttH
Professor Principal
2.1.9  Just Jim NC TttH  replied to  JohnRussell @2.1.8    last year
Are you ok today?

Couldn't be better. Thanks for asking. You okay? Well other than your usual obsessions and things.

 
 
 
JohnRussell
Professor Principal
2.1.10  JohnRussell  replied to  Just Jim NC TttH @2.1.9    last year
Couldn't be better.

Then starting making sense. 

You posted a video mocking Biden, and as a reply, I posted an image mocking Trump. The only difference is mine was relevant to the topic. 

 
 
 
Vic Eldred
Professor Principal
2.1.11  seeder  Vic Eldred  replied to  JohnRussell @2.1.10    last year
You posted a video mocking Biden

So that's supposed to be the open door for you?   Is this a game for you?

 
 
 
Vic Eldred
Professor Principal
2.2  seeder  Vic Eldred  replied to  JohnRussell @2    last year

It's not about whether there should be civil service or whether FDR was right about prohibiting public sector unions.

It is about the ever growing power of the administrative state.


Example #1 now before the Court:

In recent years, the justices’ high-profile cases have been on the front lines of the culture wars as they decided issues like guns, abortion and religion. For the high court’s next term, however, administrative law is shaping up to be a focal point.

The justices this week  agreed to take up a case  that asks them to overrule a 39-year-old precedent that gives federal agencies deference in rulemaking that Congress hasn’t clearly authorized.

That decision could have wide-ranging impacts that scale back the executive branch’s authority to implement certain environment, employment, drug and other regulations when the justices decide whether to overrule the court’s 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, known as the Chevron deference.




Only the legislature should be enacting laws.

 
 
 
evilone
Professor Guide
2.2.1  evilone  replied to  Vic Eldred @2.2    last year
It is about the ever growing power of the administrative state.

The Heritage Foundation says they want the power of the next populist Republican President to stuff the government with people who will ignore laws, rules and the courts to suite a far right populists agenda. Their fascist fever dream won't happen, but there are enough of them calling for the dismantling of our democracy that it's troublesome.

Only the legislature should be enacting laws.

Yeah that's how it works now... Rules on how to enforce the laws and duties are not always specified in the law and have been granted by Congress since it's inception. The courts are backstop when others feel a rule goes too far. Given that we are talking about a SCOTUS case shows the system works just fine to me. To say that Congress would have to fully fund and fully spell out ALL aspects of a law is unfeasible and irrational. People like Boebert and Co can't even tie their own shoes without help from an aide, let alone completely understand the nuances of all legislation they vote on.

 
 
 
Vic Eldred
Professor Principal
2.2.2  seeder  Vic Eldred  replied to  evilone @2.2.1    last year
The Heritage Foundation says they want the power of the next populist Republican President to stuff the government with people who will ignore laws,

In other words, the next president would like to appoint his own people just like Obama did when he fired everyone he could over at the DOJ.  So, only one party can do it?


Rules on how to enforce the laws and duties are not always specified in the law and have been granted by Congress since it's inception. The courts are backstop when others feel a rule goes too far.

We are not talking about either. We are talking about agencies making laws.

 
 
 
evilone
Professor Guide
2.2.3  evilone  replied to  Vic Eldred @2.2.2    last year
In other words, the next president would like to appoint his own people just like Obama did when he fired everyone he could over at the DOJ.  So, only one party can do it?

I didn't say that, nor even imply it. What the Heritage Foundation's plan entails if far more insidious than just swapping out appointees. Your argument just tries to give that plan a little cover. 

We are talking about agencies making laws.

I've been following the case since it hit the appellate court. We are NOT talking about agencies making laws. That's a specious argument. The case's argument is where the boundaries or rule making lies. Specifically the appeals court ruling on this particular case explains the federal fisheries law can require fishing boats to carry federal monitors, but doesn't specifically address who must pay for monitors. The current rule to require the fishing boats to pay for the monitors isn't a new law. If you argue it's an overreach of the rules, then I might agree, but to try and spin it as an agency writing their own laws is just anti-government propaganda. 

This series of cases coming before a conservative court on the expansion of federal agency power will result in a future Progressive Congress codifying a deeper level of expansion into the framework. The exact opposite of what these cases are trying to do. It may take a few more cycles but the current right wing populist aren't really all that popular and the more they push the bigger the pushback will be.

 
 
 
Vic Eldred
Professor Principal
2.2.4  seeder  Vic Eldred  replied to  evilone @2.2.3    last year
I didn't say that, nor even imply it.

Ah, but you did :

The Heritage Foundation says they want the power of the next populist Republican President to stuff the government with people who will ignore laws, rules and the courts to suite a far right populists agenda. Their fascist fever dream won't happen, but there are enough of them calling for the dismantling of our democracy that it's troublesome.

That was YOUR interpretation.


Before Pelosi closed out the last democrat controlled House, they passed this law:

The House passed legislation on Thursday aimed at curbing a president’s authority to hire and fire tens of thousands of federal workers




They didn't do that because the federal government was equally divided between Republicans and democrats. They did it because the government is loaded with leftist ideologues.

 
 
 
evilone
Professor Guide
2.2.5  evilone  replied to  Vic Eldred @2.2.4    last year
Ah, but you did :

I didn't. I'd explain why, but it would be censored so now I'm done here since you are now trying to spin yourself away from the topic of the article.

 
 
 
Nerm_L
Professor Expert
2.3  Nerm_L  replied to  JohnRussell @2    last year
Civil service is a type of institutional system that exists around the world. We arent going to abandon it in America for the advantage of people like Donald Trump. The idea that Trump could or should decide who can work in the federal government is ludicrous. 

Who's talking about abandoning civil service?  The problems arise when civil service circumvents Constitutional separation of authority.  Civil service cannot assume the authority and function of all three branches of government.  When the civil service begins performing the functions of the executive, legislative, and judicial branches of government then elections don't matter. 

Civil service is creating regulations (legislative authority), interpreting the regulations it has created (judicial authority), and implementing and enforcing the regulations it has created (executive authority).  Civil service has even assumed the authority to charge, prosecute, and judge compliance with regulations the civil service creates.  The President, Congress, and Supreme Court are unnecessary for government to function.  It doesn't matter who is elected because civil service is performing all the functions of governing.

There really are top-level civil servants with power equal to that of the President, Congressmen, and Justices.  There is little oversight and virtually no accountability for these top-level civil servants.  And that is the source of the problems with civil service.

 
 

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