Photograph Source: Gage Skidmore – CC BY-SA 2.0
Former President Donald Trump’s first major rally for the 2024 presidential race was held in Waco, Texas. It was a fitting stage for him to attack the evil deep state.
Trump, always the shrewd marketer, knew the message he wanted in starting his presidential campaign: you cannot trust the government because the deep state controls it. Trump told a crowd of his supporters in Waco that “Either the deep state destroys America, or we destroy the deep state,”
It probably was not by coincidence that he held his rally on the 30th anniversary of a deadly fight between federal agents and inhabitants of a compound headed by the anti-government cult leader David Koresh.
An attempt to deliver an arrest warrant and conduct a search dragged on for a 51-day siege, ending with a fire that killed 82 occupants, 28 of whom were children. Four federal agents were also shot and killed.
The tragic incident has gone down in right-wing lore as a standoff between freedom-loving Americans and violent deep-state government oppressors.
Although, contrary to lore, a jury of Texas citizens absolved the government of wrongdoing in a suit stemming from the siege. An independent counsel also concluded that federal agents were not responsible for the deaths of the inhabitants in the fire.
So, what is the deep state? The belief that a secret group controls the federal government goes back to the John Birch Society of the fifties. The Birchers knew that insiders were controlling the FBI and CIA to advance the global interests of Wall Street and industrial elites and communists.
Going forward seventy years, that belief gained popularity through Stephen K. Bannon, the executive chairman of the right-wing nationalist Breitbart News. He became Trump’s chief strategist when Trump entered the White House.
Bannon’s first public speech was before the Conservative Political Action Conference. He said that the “corporatist globalist media” was “crying and weeping” on election night. And that everything is going according to Trump’s plan: the “deconstruction of the administrative state” has just begun.
Describing a government as a “deep state” is not a legal term, but defining it as an “administrative state” would be. Academics generally describe an administrative state as government agencies able to write, judge, and enforce their laws.
When Banon spoke of deconstructing the administrative state, he was not entering the field of “conspiracy theories” that gave birth to the deep state. He was articulating a legal effort to strip away the liberal institutions Congress had allowed to develop using administrative law.
For example, administrative law created the Civil Rights Act of 1964, a product of the Equal Employment Opportunity Commission, and administrative law also created the Environmental Protection Agency, which grew out of environmental protection acts.
Various government agencies, such as the Social Security Administration or the Office of Medicare and Medicaid Services, are exercising power to fulfill social-democratic or social welfare goals.
Jurists ideologically could oppose these programs by only allowing agencies to create them with prior, direct Congressional approval. Consequently, those judges would be inclined to overturn the Republican-dominated 1984 Supreme Court decision in the Chevron v. Natural Resources Defense Council case, which expanded the powers of federal agencies.
Chevron allowed agencies to determine how to execute a law to cover a particular problem not explicitly described by Congress. The agency’s decisions must be reasonable and can be challenged in the courts.
However, the Chevron-initiated judicial deference principle limits the courts’ authority. Jeremy W. Peters of the New York Times notes that it says judges must defer to reasonable interpretations of ambiguous statutes by federal agencies because agencies have more expertise than judges and are more accountable to voters.
Throughout our republic’s history, the established norm and expectation was that the court system, with the Supreme Court making the final determination, could check an expansion of executive and Congressional powers. However, presidents usually appoint jurists to be confirmed by Congress sympathetic to that president’s political philosophy.
In 2018, Donald F. McGahn II, Trump’s White House counsel and architect of the administration’s judicial selection process, said they were pursuing a different judicial selection process than in past years. They had a “coherent plan” to pair the administration’s deregulation orders with judicial nominees opposed to the federal bureaucracy’s growing power.
To aid in selecting jurists, the Trump administration followed the guidance of Lee Liberman Otis, a founder of the free-market conservative Federalist Society. That organization was founded on an ideology opposed to government regulation of businesses and public services, such as public schools.
Although members of the FS were federal judges before Trump, his appointments resulted in a Republican-appointed super majority of Supreme Court justices being members of the Federalist Society. Coming before the Supreme Court this year is the Loper Bright Enterprises v. Raimondo case, with the potential end of Chevron deference as the only issue to be argued.
Even if the SCOTUS decision leaves some flexibility for agencies to carry out their lawful mission, if Trump is elected president, he will keep his promise to end or dramatically limit agencies’ ability to administer the law.
Their diminished authority will create a power vacuum in determining how American’s freedoms will be protected from abuse by the most influential groups, be they businesses or religions.
Those with the most political power and financial resources will fill that vacuum. Their interests will not leave much room for the welfare of working Americans to be represented by non-partisan civil servants.
The loyalty of civil servants is what Trump aims to control. Trump is one of many presidents who has been frustrated with the legions of federal bureaucrats that run the day-to-day operations of providing government services.
A president who wants to make dramatic fundamental changes will find resistance because civil servants seek consistency by following set protocols as presidents come and go.
Given that traditional tension, all presidents must compromise to achieve some of their objectives and maintain a functioning government.
The question with Trump as president, known for not backing down, is how far he will push this conflict. Could he permanently alter our government institutions’ functions by serving as president and not the public? It’s possible.
Just before Trump’s first term ended, he signed the order “Creating Schedule F in the Excepted Service,” removing employment protections from career officials whose jobs were deemed linked to policymaking. Known as Schedule F, President Biden rescinded it. However, Trump has vowed to immediately reinstitute it if elected again.
He is preparing to replace those fired civil servants with new loyal federal employees from a database of willing foot soldiers recruited, trained, and compiled by the Conservative Partnership Institute, in which Trump Chief-of-Staff Mark Meadows is a senior partner.
The difference between Biden’s and Trump’s approach is whether a president wants to sustain a non-partisan civil service or turn it into a group personally loyal to him.
Hence, Trump’s attack on the federal government repeats a theme he established at his Waco rally. The government is the enemy because it’s not accountable to him as president, while he ignores that accountability should be to the nation’s established rules of law.
Trump’s supporters argue that Schedule F would only be used against poor performers and people who actively impeded the elected president’s agenda. However, Trump states on his campaign website to “find and remove the radicals who have infiltrated the federal Department of Education.”
Trump would surely want to identify radicals in other departments. Trump told his rally in Michigan, “We will drive out the globalists. We will cast out the communists, Marxists, and fascists. And we will throw off the sick political class that hates our country.”
Trump, quick to accuse others of conducting a witch hunt when they seek justice in the court system against his actions, would appear to enjoy conducting one of his own across the entire federal workforce.
But does he have the authority to engage in such a sweeping action, or is this just a nightmare conjured up in the minds of liberals?
His allies are already planning to use legal arguments shared by conservative jurists who would approve his presidential edicts. It is not just subjecting 50,000 civil employees to scrutiny and possible dismissal.
More intrusive is his intention that the 24 independent agencies, like the Federal Election Commission and the Federal Reserve System, submit their actions to the White House for review.
He had previously drafted such an executive order, which his Justice Department approved, but the order was never issued because Trump’s closest staff members expressed concerns. White House staff raising doubts about Trump’s judgment may be missing in the future, given that on his campaign website, he promised to bring those agencies “under presidential authority.”
Trump also said on his campaign website that he had a constitutional right to impound funds and would restore a practice that Richard Nixon attempted but was stopped by Congress.
Trump’s plan to deconstruct the administrative state, referred to as the deep state at his campaign rallies, will employ a legal strategy, not an insurrection mob, to execute his plans. His legal cornerstone would be the Unitary Executive theory, a concept conjured by Supreme Court Justice Antonin Scalia in his dissenting opinion in the Chevron case.
This theory extrapolates Article II of the Constitution to mean that everything not designated as legislative or judicial power must be executive power. Since the executive power vests in the President, that person must be able to execute all the laws of the United States outside of everything that’s not explicitly given to Congress or the judiciary in the Constitution.
Going down this path could lead to something more than being a “dictator for just one day.” Or so it seems since in 2019, he declared to a cheering crowd, “I have an Article 2, where I have the right to do whatever I want as president.”
If elected, Trump’s effort to destroy the deep state will not be accomplished overnight. Instead, expect a rollercoaster of legal challenges in the courts while Congress and the President circle each other like two Sumo wrestlers trying to push the other out of the nation’s most important circle of power.
In the meantime, we would experience a long period of dysfunctional governance and declining trust in our democratic republic through our public’s loss of faith in democracy as the best means to address their basic needs.
Hence, we will see more citizens yearning for autocratic rule. That’s starting from a current base of 26% of Americans who score high on the scale of right-wing authoritarianism.
It’s time that all citizens begin to think about what kind of society they want to live in after this November’s elections.
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