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Abolish the Deep State: A Modest First Step
I’ve been giving thought to how the deep state can be truly abolished. I don’t think that the proposed reorganization plans unveiled by the White House, for all their vast benefits, will do very much to eliminate it.
The deep state creates two problems for Americans. First, the deep state (like all organizations) desires to perpetuate itself through its influence over the political classes.
Second, the deep state enjoys its vast powers buried and permeating the United States Code relating to the administrative agencies. The Supreme Court case of Wilkie v. Robbins, 551 U.S. 537, decided in 2006, was about a victim of government abuse that included frivolous criminal charges (of which he was acquitted) and frivolous administrative fines. All because the victim refused to grant the Government an easement on his land. The easement or the land could have been taken by eminent domain.
The Supreme Court said that because Mr. Wilkie defeated the frivolous administrative charges and frivolous criminal charges in court, he already had his remedy and could not recover damages for the abuse of power, including the attorneys’ fees he had been forced to incur. The case revealed the deep state at its worst and most abusive.
I have no idea what to do about the first problem.
However, I think I have a proposal to address the second. Abuse of power by administrative agencies is a continuing and serious problem and threat to liberty. I propose that Congress pass a law that criminalizes abuse of power and gives a right of civil action against the individual who abuses power, simultaneously forbidding the government from defending the power abuser. To protect the occasionally innocent government employee, the prevailing party should be able to recover its reasonable attorneys’ fees. The statute should expressly provide that one result of a successful prosecution (criminal or civil) of a power-abuser is that the power-abuser loses his or her cushy federal job and all accumulated retirement benefits.
If such a statute causes government employees to be so timid that the agency grinds to a halt, so be it.
Published in Domestic Policy
I like your proposal a lot! It will take many years for us to take back our power, but until there are serious consequences for the abuse of power, nothing will change. Thanks, David.
Would this apply to elected officials, or just the unelected?
Good ideas.
Another step would be to disperse offices of the federal government around the country. Detroit could use some jobs and gentrification of housing. St Louis, the same. Those are central locations and delivery of useful services should be more responsive and convenient.
David Brinkley’s “Washington goes to war” is a valuable history of the massive expansion of DC that took place during World War II. It has never recovered but only gotten larger. Why?
https://www.amazon.com/Washington-Goes-War-David-Brinkley/dp/0394510259/
Perhaps it allows more efficient lobbying activity but that is not essential. Congress will remain but why should lobbyists be interested in staff members ?
Drain the Swamp !
I have too. My solution is to make working for the Federal government a true civil service by eliminating government work as a career (full disclosure: I am a recently retired, career Federal government employee). In other words, you volunteer to work for up to say . . . no more than twelve years. You get good pay and benefits while you work, but you don’t earn a retirement pension – no more FERS (the TSP would still exist though).
This would prevent people from becoming entrenched in the bureaucracy, and save $$$ on retirement benefits, because the only ones left would go to existing retirees – like yours truly . . .
Any legislative power exercised by Administrative agencies is simply unconstitutional. Section 1 Article 1 of the Constitution limits legislative power to Congress and only Congress. It does not grant legislative power to either the Courts or to Administrative agencies, although most of the most significant legislating these days comes from those two sources. And yes, those edicts issued by those two unconstitutional sources have been a destructive and dangerous scourge on our land.
The vast number of edicts and regulations issued by Federal Agencies are all unconstitutional. Only due to a pair of Supreme Court rulings way back in the thirties were agencies allowed to write regulations. Of course, the Supreme Court does not constitutionally have that power to grant to Federal agencies the right to legislate. Only an unrestrained and nearly unlimited expansion of Marbury vs Madison would allow such atrocities, which all too often now is the Court’s attitude towards the Constitution. The problem has also been magnified and exacerbated by the Chevron decision which grants deference to those same unconstitutional agencies.
The best solution to the problem is to appoint another textualist Supreme Court Justice who would help strike down all this decisions that have led to this end run around the Constitution to grant Administrative agencies legislative power. The Court is only one good Justice away from probably cleaning up our judiciary. Two new good Justices of course would really do the trick. Fortunately, “moderate” Justice Anthony Kennedy has announced his retirement and the uber Leftist Ruth Bader Ginsberg could pass away almost any moment. Take that unconstitutional power away, anul all those regs and wonderful things will happen almost overnight.
I have a similar plan for our Congress-critters. Whether or not term limits ever materialize, we should stop giving Congress the sort of fringe benefits that encourage them to treat it like a career. Pay, sure. But no health plan, no pension – OK, maybe health insurance for their kids. Anyway, force them to rotate out after a few years.
Obviously, the rub is, how do you get Congress to do that to themselves?
A lot of the trouble stems from the McCain-Feingold law that resulted in Congress members spending all their time raising money while the staffs wrote the legislation. The lobbyists were, of course, happy to help write the legislation and that is how Obamacare was written.
Then the legislative staffer, after a few years to make contacts, moves to a lobby and makes some real money. Repeal McCain-Feingold and some of the problems are solved.
Better idea: Term limits for unelected officials.
Anyone in Government, elected or unelected, I think. Why should any government official be exempt from a prohibition on abusing power?
They won’t. It will take the states with a Constitutional convention.
The left is screaming “abuse of power” at the administration exercising its legal authority now. Could an abuse of power law be a foot in the door for tying up legitimate authority? This would have to be a very carefully crafted statute.
About now, I’m starting to think the South Africans and, I believe, the Brazilians had the right idea in splitting their capitals across multiple cities.
We always think of Pretoria as the capital of South Africa, but the capital is actually Pretoria, Bloemfontein, and Cape Town. The executive sits in Pretoria, the Supreme Court in Bloemfontein, and the legislature in Cape Town.
Maybe a system like that (and an architecture not modeled on Greek and Roman temples), might put some humility back into the District.
Did they do this? I have not heard about it . . .
I agree that it needs to be carefully drafted. There needs to be some disincentive to frivolous claims. Maybe a pre-suit judicial review, as happens in many states with many prison suits. The suits should not themselves become an abuse of power by the people.
It’s as old as civilization and it doesn’t go away, can’t be reformed and gets stronger with time. It has to be cut back, reorganized, moved around, broken up, because its a system of overlapping cliques coalitions of mutually supporting cartels.
That would be a feature, not a bug.
You make it more more attractive to short-termers by increasing their pensions. Unless they stay too long, in which case you decrease them.
A constitutional convention would probably implement socialism in full.
I was wrong about the Brazilians. They have all of their government in Brasilia, a city built in 1960 that now has almost four million residents. (Seriously, it’s the biggest city on Earth that didn’t exist in 1900. Though the new capital of Nigeria is probably at least as big by now. And it was finished in the 80s!)
But South Africa? Yeah, three different capitals.
Even if you pass the law, the chance of enforecment is about the same as enforcing the contempt of Congress against Eric Holder. And for the same reasons.
This. Mike Lee has been working on the restoration in Congress of adherence to the principles contained in Article I of the Constitution. Success in that effort and the appointment of a constitutionalist to the SCOTUS may save our republic.
On a similar note, decentralize the Senate and House and have everyone “attend” virtually from their office IN THEIR HOME STATE OR DISTRICT. It will drive most of them mad (self imposed term limits?) to have to actually live among the dirty masses and it will make things a bit more difficult for the lobbyists to not have all the prey already corralled into DC. Win-win.
It’s the accumulation of power. Power will be abused, the more power, the more abuse. The administrative state and quasi-state (universities and corporations do it too) metastasizes to crowd out the supposed function of organizations and take on a life of their own. “Social justice” and the administrative state are a marriage made in hell.
All are in effect a huge tax, and take potentially productive people out of the workforce.
Adminstrative metastasis also, writes Daniel Greenfield in yesterday’s A Tale of Two Deep States, is a threat to our national security:
This is the most immediately threatening, to every individual American, piece of the ‘deep state’ and joined with the points previously made in this OP and comments shows how close we are to losing our republic.
There is a thread titled Gohmert, Gowdy, and Ratcliffe Question Deputy Attorney General Rosenstein over at theconservativetreehouse.com. Among the comments there is the observation that there are many linkages involving spouses (McCabe’s, Ohr’s, and Rosenstein’s are examples) in the ‘Deep State’, where the ‘Deep State’ encompasses not only bureaucrats but private sector attorneys, various contractors and lobbyists. Some of the listed relationships include both Clintons, Comey, and Mueller.
Rosenstein was not very believable in his testimony regarding his awareness of the Ohr’s relationship (since he signed off on the FISA warrant) and his response on the question about the redactions on the Styrzok/Page texts was laughable. He didn’t even acknowledge his responsibility to insure some accountability by those who actually did the redactions that are out of order.
An interesting fact mentioned in those comments at CTH is that many spouses use their own family names so the relationship is not recognizable.
After election, Congressmen and Senators go to DC for their swearing in. As part of their swearing in, they are fitted with GPS ankle bracelets and shock collars. They then have 24 hours to return to the geographic boundaries of their constituency. Once that 24 hours has expired, if they leave the district at any time for any reason during their term of office, the first time, they get shocked. The second time, they are considered to have resigned the office and are replaced.
I’m only sort of joking.
As Sundance observed:
I would agree if the only remedy were criminal. But it would be more difficult to stop a civil remedy.
This touches on why this whole situation between the Congressional oversight bodies and the DoJ and FBI is important. The bureaucrats at the DoJ and the FBI are being exposed as biased, acting wrongfully and probably criminally and the top guy (Rosenstein) at this point, who has arrange a damaging investigation of Trump and his campaign without a scintilla of evidence involving Trump, is answering to nobody for anything.
All the Democrats, who love the ‘Deep State’, are defending the Republican appointees, Rosenstein and Wray, and the POTUS, who can end it all at any moment, is not (yet).