What’s Happening to the “Deep State”?
Assaults on American state capacity are gaining steam.
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American Purpose has been posting a series of articles on “The ‘Deep State’ and its Discontents,” a series that has grown much more urgent since the inauguration of the Trump administration on January 20. I thought it might be useful to recap what’s been happening since then, with references to the pieces we’ve published so far.
The Trump administration came into office vowing to dismantle the “deep state” (or permanent bureaucracy), and it has made good on an important part of that pledge. There are several components to this effort.
The first, as Don Kettl noted, was the “Department of Government Efficiency,” or DOGE, led by Trump’s onetime friend and supporter Elon Musk—America’s Silvio Berlusconi. DOGE was given, or simply grabbed, access to the computer systems of many federal agencies, and began to fire or downgrade thousands of federal bureaucrats, as well as close entire agencies like the U.S. Agency for International Development. There were several things very wrong with its approach. Musk seems to have begun with the assumption that the vast majority of federal workers were not doing anything particularly important, and he and his 20-something minions did not bother to inform themselves of what they actually did. If you would like to understand the kind of work they do better, take a look at Michael Lewis’ recent book on heroic individual civil servants, or this piece by Jen Pahlka. At a time when most federal agencies desperately need more workers, many were faced with arbitrary layoffs and office closings that impaired their ability to serve the public.
Peter Morrissey noted that going after young probationary federal employees was destroying the bureaucracy’s seed corn. As Mike Bennon noted, a proper reform should empower the flock and not just cull the herd. A huge problem lay in data: Musk seemed particularly interested in getting access to private data held by the government about citizens, which would be very useful to his own businesses; unfortunately we don’t know what he took or what his engineers did to government databases. Finally, DOGE made some big decisions like sending USAID to the “wood chipper,” closing an agency that had been created by Congress and could legally be closed only by an act of Congress.
Many of DOGE’s removals were of questionable legality; many federal workers are protected by Congressionally-mandated rules concerning the conditions under which they can be fired. These rules were violated not just by DOGE, but by the Office of Management and Budget under Russ Vought, or other shadowy figures in the White House. There were two categories of employees in particular the legality of whose removals was highly questionable: the two hundred or so senior policy positions protected by “for cause” removal requirements, and members of multi-member federal agencies.
It’s useful to state why Congress saw fit to impose conditions on executive branch powers to remove certain officials. “For cause” positions are regarded as relatively technical, and the administration needs to give a justification for removing them. These include positions like the head of the Census Bureau, the Bureau of Labor Statistics, and the like. In addition, from the establishment of the first regulatory commission, Congress sought to, if not de-politicize, at least balance the leadership by creating certain multi-member governing boards with staggered terms that were by statute politically balanced. These included not just the Interstate Commerce Commission, but the FCC, the SEC, the NLRB, the FEC, the MSPB, and an alphabet soup of other agencies.
Many conservatives have long been advocates of the “unitary executive,” seeking to expand the power of the Office of the President by giving it full authority over the entire executive branch. The Trump administration consequently began to fire officials in both categories. They removed more than a dozen Inspectors General in a variety of agencies, and targeted members of the EEOC, NLRB, and MSPB appointed by Democrats. The right of Congress to protect these positions was upheld by a Supreme Court decision from the 1930s, Humphrey’s Executor, which many conservative proponents of the unitary executive argued was unconstitutional.
The problem with invalidating Humphrey’s Executor is that there are indeed certain positions that do need to be made independent and served by technical expertise. Chief among them is the Federal Reserve, whose chair and twelve commissioners have a strong tradition both of nonpartisanship and skill. When President Trump has made noises about firing Fed Chair Jerome Powell, the markets revolted and forced him to back down. As Paul Verkuil explained, SCOTUS had the problem of how to invalidate Humphrey’s Executor while still protecting the independence of the Fed—something the conservatives on the Court seemed to value primarily for political rather than legal reasons.
At this point, Trump has made his unhappiness with Powell extremely clear, and the markets this time have not reacted negatively. So we can assume that the Court will finally put Humphrey’s to rest next year, and that Trump will have his way with the Fed when Powell’s term ends next year.
The cases just covered are relatively senior officials who occupy relatively important policy roles. The Trump administration has indicated a willingness to remove the protections of all federal employees, which include a million civilians. Toward the end of Trump’s first term, he issued an executive order creating a new “Schedule F” that would put these lower-level bureaucrats in “at-will” status where they could be fired without cause. The Biden administration rescinded this order as one of its first acts, but the new Trump administration is now back at it. As Don Kettl explained, they proposed first a “Schedule P/C” and then a “Schedule G” that would essentially put the jobs of all federal workers on the line.
While your local Post Office worker is not a powerful federal official, Schedule G is still a very bad policy. It will send the country back to the days of the patronage or spoils system, the condition that existed from the administration of Andrew Jackson in 1828 up through the passage of the Pendleton Act in 1883. The latter established the principle of merit as the condition for the hiring and firing of federal workers, a principle that by the 1920s sharply reduced the degree of patronage and corruption in the U.S. government. Before Trump, the United States still retained some 4-5,000 Schedule C political employees, which was several thousand more than in any other modern government in Europe or Asia. Under Schedule G, there will be literally tens of thousands of positions that can be filled for political reasons by a new administration.
Supporters of Schedule G say they are interested in combatting DEI and returning the U.S. government to a merit-based system. The effect of this change will of course have exactly the opposite effect of reopening the U.S. government to politicization and massive corruption. If you want to get an idea of the quality of the federal officials that they will appoint, just consider some of the senior positions they’ve already filled: Pete Hegseth, Tulsi Gabbard, Robert F. Kennedy, Jr., Kash Patel, Pam Bondi, Alina Habba, Dan Bongino…
So here we are, half a year into the new administration. The assault on the Deep State has been just as comprehensive as planned, and it is only gaining steam now. The coming weeks and months will see further efforts to chip away at American state capacity, setting the clock back to the way things were before 1883. There is one part of the state that is gaining massive capacity, however, which is ICE, the Immigration and Customs Enforcement agency. Dan Carpenter wrote last week that ICE will soon become the largest national policy force in American history by a large measure. Americans have taken the existence of a modern state for granted and know how to complain about it. Now they are getting what they thought they wanted.
Francis Fukuyama is the Olivier Nomellini Senior Fellow at Stanford University. His latest book is Liberalism and Its Discontents. He is also the author of the “Frankly Fukuyama” column, carried forward from American Purpose, at Persuasion.
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This is a really helpful overview. Thx for putting it together and the great work American Purpose is doing here.