By dismantling the Deep State, Donald Trump may inadvertently have undermined his own claim to rule.
A chain of unintended consequences is visible in the Supreme Court case Trump vs Slaughter, due to be decided this month. It began with Trump’s firing of Federal Trade Commissioner Rebecca Slaughter in the early days of his second term. She sued, federal judges backed her and Trump sued back. He asserted the right to fire anyone he wants. Trump’s view is that the president is boss of the whole executive branch – there can no longer be bureaucrats and regulatory boards with special status and guarantees against firing. Americans get to vote for the people who rule them. In that sense, Trump has been trying to make the country more democratic. But the issues look very different today than they did when Ms. Slaughter first got fired.
Back then, the freshly elected President, emboldened by Elon Musk and credibly promising efficiencies, was backed by half of voters. Even nine months ago, when Trump filed his case, it looked strong. But by this spring, he had shown himself weak enough to get dragged into a war in Iran in which the United States had no national interest, and erratic enough to threaten blowing the Islamic republic to Kingdom Come. Inflation has been mounting along with interest rates. Giving the President more scope to act no longer looks like such a great idea.
Trump is less troubled by the Deep State than by the people who run it
But that doesn’t mean those fighting Trump are right, either. Progressives convinced us at the turn of the 20th century that modern government is impossible without apolitical expertise. The executive branch now has powers far more extensive than the founders would have countenanced putting into the hands of one man. Whether your country is building dams or nukes, you don’t want a president-cum-CEO chiming in with design ideas – or suggestions that some lucrative contract be given to a family member. You want an administrative state. So in 1933, when Franklin Delano Roosevelt himself tried to fire a recently appointed FTC employee, the court told him he couldn’t – unless he had a good reason. A regulator’s role is “quasi-judicial and quasi-legislative,” the court said. The landmark case is called Humphrey’s Executor.
But in a government based on separation of powers, no one has ever been wholly satisfied with that reasoning. Trump’s lawyers decided they wanted Humphrey’s Executor overturned.
Different political forces have made different criticisms of the administrative state. Progressives, from Roosevelt to Lyndon Johnson, were the great beneficiaries of the expansion of the executive branch (consider the Great Society and Civil Rights). They were also made uneasy by its prerogatives (consider the Vietnam War and the War on Drugs). The historian Arthur M. Schlesinger Jr. worried that an “imperial presidency” was conquering territory that the Constitution intended to belong to Congress.
Conservatives had altogether different complaints: FDR’s Bureau of Labor Standards (later OSHA), for instance, or the reams of environmental regulation that followed Richard Nixon’s Clean Air Act. But as a constitutional matter they agreed in principle that there was something wrong with the administrative state.
Through all of this, there was a paradox. The branch of government that was constitutionally under the control of the president was getting bigger and bigger… and yet, by law, the president was less and less able to control it, for good or ill. It was hard to tell whether the presidency was actually imperial or just bloated.
The Reagan administration lawyer Douglas H. Ginsburg had an innovative way of discussing the administrative state. He described the United States as having a “constitution in exile.” The Constitution itself, Ginsburg noted, begins with the words “all legislative powers herein granted shall be vested in a Congress of the United States…” and yet congressmen have colluded in the usurpation of those powers, delegating them to the bureaucracy. Reaganites came to office thinking that inflation could be halted and virtue restored if Congress just stopped delegating. As for Ginsburg himself, he will surely merit a biography someday as a representative figure of his time, having dropped out of college in the 1960s to found one of the first online dating services – and then seen his own nomination to the Supreme Court derailed over revelations that he had smoked weed at Harvard Law School.
But before long, the problem appeared to conservatives in a different, more sociological light: the regulators and administrators who made up the Deep State were not just anybody. They were people who had gone through elite law schools and otherwise learned to manage systems. They were progressive noodle-heads. They hadn’t just lost sight of what Middle America had voted for – they were actively subverting it. This is the problem that Trump means to fix. He’s less troubled by the Deep State than by the people who run it.
The problem is that, over the decades in which the constitution was in exile, the country’s character changed. As long as Americans were being ruled by a bunch of experts insulated from executive whimsy, elections didn’t matter that much. People could afford to be apolitical and to look at the presidency as a kind of entertainment. By the late 1990s, the protestations of Bill Bennett and other moralists against the lack of “outrage” during Bill Clinton’s sex scandals fell on deaf ears. The Deep State lowered the cost of poor presidential character. It began the process that put Trump in the Oval Office.
But once the executive branch’s enormous powers to regulate, surveil and prosecute go back to being the personal prerogatives of “some guy,” then we must radically reassess what we look for in that guy. Mercurial people become too risky. So do 80-year-olds. It will no longer be ridiculous to tut-tut about Clinton’s deficient sexual morality. Harvey Mansfield’s view that character is all will again become consensus. And Trump’s liberation of the presidency from its regulatory constraints will make American voters less likely to yearn for a sequel.
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