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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
Why? Because we’d have to convince a bunch of elected ones to pass the law that kicks them in the teeth. More importantly, doesn’t the Constitution exempt Congressmen from arrest, except for serious felonies? In the 17th century, criminal charges were used as a political weapon, to prevent certain MPs from voting. The measure in the OP would be abused in the same way.
The relevant article reads “exempt from arrest except for treason, felony, or breach of the peace.” In other words, they’re exempt from getting arrested for jaywalking.
OK, but this charge would be misused. It might be a good idea, if we limit it to the unelected, but it seems obvious it would open a whole can of worms, if extended to politicians.
If the debate shifts from whether to consider such a law to whom shall be covered, that would be a big win.
The law in the United States is derived from the common law of England. One principal that got adopted was that the King can do no wrong. As a result, we had governmental immunity and no statues of limitation applicable to the government in civil matters. The government in the law has always had the upper hand.
It is time we end that advantage. Why should the wrongdoing by the goevernment enjoy privileges and immunities that we, the people, do not get?
I see the criminalizing of the abuse of government power and providing a remedy for the abuse victims as a good first step.
So what is “abuse of power”? How do you define that in law? Such a law would require thousands of pages to define, and that in itself would require a lawyer expert in such a law. The “I know it when I see it” doesn’t work well in law and courts, and if you allow judges to have that kind of power, that in itself would be an avenue of abuse. And if you allow this to go to juries, it would mean inconsistencies because everyone has their own definitions of “abuse of power” and most people off the street, which is where the jury pool is acquired hasn’t put much thought into it. One of the hallmarks of a successful justice system is consistency.
As someone who also rails against the deep state, I still acknowledge that most civil servants are conscientious and endeavor to follow the law when enforcing it against their fellow citizens. They make middle class salaries, and hiring a lawyer to defend against such civil suits would make them destitute. And of course that would be the default with most citizens, rightly or wrongly, who were ruled against adversely. In other words, there would be a lot of frivolous suits.
Most of the staff of a regulatory agency are lawyers, not the subject matter experts that agency is specializing in regulating. Your proposal simply adds the number of lawyers to the mix.
All agencies of the government beyond those few offices established by the constitution are creatures of statute (and has someone else has pointed out, many are of questionable constitutionality).
How government employees are hired and fired are also outlined by statute. A radical congress, along with a cooperative president could modify or abolish the deep state. And if they did, it would not result in anarchy.
So say they abolish the EPA? Would there be no enforcement of environmental laws? Well, that would be true of federal environmental laws. But every state has an EPA equivalent along with their own state laws.
Most federal criminal laws have state equivalents. There would be little or no anarchy.
And, of course, the states would do a better job of managing their environment. I say, if you cannot abolish it, at least cull it down to one person who can write 50 checks on each October 1st and then go home for another year.
I do not agree that the law would “require thousands of pages to define.” I am perfectly happy to let the definitions come forth through the courts assessing individual situation.
That said, suppose it is difficult to define. I would like to see Congress debate the merits. That alone would be a good step. Although enactment would be better.
Those who framed the highest law of the land also had the benefit of this example:
https://en.wikipedia.org/wiki/Five_Members
I’m not opposed to the idea proposed in the OP, but if we extend it to elected officials, it becomes a political weapon for the unscrupulous. And by the unscrupulous, I mean Leftists.