The Damage Trump Is Doing
When Trump finishes gutting the administrative state, there will be no one left to govern.
This article is part of an ongoing project by American Purpose on “The ‘Deep State’ and Its Discontents.” The series aims to analyze the modern administrative state and critique the political right’s radical attempts to dismantle it. Click here to subscribe to Francis Fukuyama’s blog and American Purpose at Persuasion to receive future installments into your inbox!
Donald Trump is eagerly destroying a federal government that for over 150 years has tried to neutralize politics and offer professional management, however imperfectly. Institutions, even great ones, count for nothing in this era. We are living in a new age that has a new accounting system. Values of professionalism and public service are not in the equation, and Trump is the perfect leader for this age. The billionaires who saluted his inauguration are the perfect chorus. But even they may not realize what is happening. They like deregulation, of course, but they won’t like what comes next.
Once all the rules are broken and the barriers are torn down, where are we? Let me give you a practical example: inspectors general. Fire them, Trump orders. But why? They are there to ensure that government works and fraud and abuse is contained. Who wouldn’t want that? The implication is that he wants to replace them with those who will approve of fraud and abuse. The problem is they are rulemakers, anathema to rulebreakers.
The Director of the FBI and the IRS Commissioner have already resigned. And now consider who else could be removed despite congressional terms and “for cause” protection: The Commissioner of the Bureau of Labor Statistics or the Director of the Census Bureau. Who cares whether the data on inflation, growth, or districting are contrived or biased? Will we be like China or Argentina in this regard?
And where is Congress in all this? They passed the Civil Service Reform Act at President Carter’s urging nearly fifty years ago. It provides protections against removal of government employees for political reasons, protections that are being ignored. The spoils system was begun by Andrew Jackson, Trump’s favorite president. It is in the process of returning, since loyalty and not competence is the primary qualification for jobs in this administration.
At this moment many agency leaders are being terminated without regard to competence on the presumption that they are disloyal. In many cases these are officials who have served honorably and effectively in prior administrations of both parties, including Trump’s first term. Mass removals with no replacements named: how can this lead to effective government? But that is not the point any more.
The Trump administration’s presumption that civil servants are incompetent is a canard that Congress should reject. Take just one agency Trump has in its sights: the Federal Emergency Management Agency (FEMA). It has professional leadership and a mission many states, red and blue, need desperately. What would replace it under the spoils system? Or should we deregulate it also and let states fend for themselves? Direct payments wouldn’t solve the problem. Federal leadership is needed.
The administration believes the courts will support these actions, citing recent Supreme Court cases limiting agency authority. As with Congress, the Court seems to be bowing to Trump by employing an extreme version of unitary executive theory. Once it is granted a broad immunity for all executive actions, even illegal ones, what else is left?
Deference to agency rules and decisions was removed in last summer’s Loper Bright Supreme Court decision that undid the “Chevron deference” doctrine. How well will officials with civil service protections or for-cause removal restrictions, like inspectors general, fare before this current Court? The Madisonian idea that the branches will compete for power and thus check absolutism seems naive in this environment. Instead, they compete for favors. May we help you, Mr. Trump? We are here to serve. Try that on the Founders.
On the eve of the 250th anniversary of the Declaration of Independence, we should celebrate that document and our constitution by honoring their purposes. There is a way to do bureaucratic reform right. There are several good proposals out there, but in this solipsistic age, can they get a fair hearing from each of the branches? Hard to think of a more important question.
Paul Verkuil is an administrative law scholar who served as Chairman of the Administrative Conference of the United States from 2010 to 2015.
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Outstandingly written. Thank you for your measured outrage.
The parallels to Germany (1933 especially) are riveting. In particular, Gleichschaltung, which also removed all judges who were non compliant to the Nazis.
The takeover has begun. And Congress looks eerily like the Reichstag.
Once he imposes some type of martial law, game over. Time to leave.