The Deep State Is All Too Real
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.
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.
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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This problem had been growing for decades.
It hadn't become obvious until 2017.
Thanks for this article. And isn't it odd that it became obvious when some well meaning CiC vowed to drain the swamp............
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.
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From the article.....................
So c3pJoe can decide and that would be okay then...............???
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?
Any president should be able to fire unelected federal employees, just as Obama did with the Department of Justice when he became president.
What's your point? Any PotUS has the ability to put in any requirements they want with approval of Congress and the courts.
And?????????????? When all else fails, MEME THE HELL OUT OF 'EM.........LMAO
As i said, civil service exists around the world. Why do you think that is the case?
We are not talking about Civil Service.
Are you ok today?
Couldn't be better. Thanks for asking. You okay? Well other than your usual obsessions and things.
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.
So that's supposed to be the open door for you? Is this a game for you?
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.
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.
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.
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.
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.
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.
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.
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.
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.