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Draining the Swamp: An Impossible Task?
The administrative state, also known as the Deep State and The Swamp, has been with us for a long time. Recently, however, I heard Professor John Marini talk about his work in “unmasking” the administrative state and I realized the future of the Republic is precarious, if not endangered. I learned about his work when he appeared on Mark Levin’s Sunday night Fox News show, Life, Liberty & Levin.
Professor Marini is one of the few writers who talk about the attack on our constitutional system by the workings of the administrative state:
It might seem odd to look to an avuncular professor of political philosophy to provide the coherence that populist politics needs but cannot supply for itself, but at least in America this makes sense, since the teachings of political philosophy, starting with natural rights, go back further than the Founding itself. What’s far more strange than this is the rarity of such efforts — Marini is one of a small number of writers on politics who have made it their work to question the legitimacy of rule by experts and to expose it as an attack on the constitutional system of the separation of powers, balances and checks, and accountability to the electorate.
The most obvious attack on our government occurred with the Presidency of Woodrow Wilson. He believed that the Constitution was an archaic document that if used at all, needed to be modified periodically, in order to serve the times. Rather than rely on the separation of powers to enact legislation, Wilson supported the governance of experts to decide the needs of the country. Rather than relying on Congress to legislate, that body would only need to provide oversight of the experts who would create the governing rules. The largest source of these experts was academia, where new areas of “science” were being identified on a regular basis.
The Supreme Court has also been complicit in assisting the administrative state:
Marini expresses particular disappointment that the U.S. Supreme Court, rather than protecting separation of powers as defined by the Constitution, has instead facilitated the establishment of the administrative state. Its opinion in Humphrey’s Executor v. United States (1935) was particularly egregious in that it affirmed the power of Congress to create quasi-legislative, quasi-judicial agencies within the executive branch largely free from presidential control. Put another way, it authorized agencies technically within the executive branch to exercise substantially non-executive functions.
Even Justice Antonin Scalia, perhaps the Supreme Court’s greatest defender of the Constitution’s separation of powers was inattentive to the ravages that the administrative state wreaked on the structural provisions of the document. In 1984, two years before Scalia’s elevation to the Court, it announced in Chevron U.S.A. v. National Resources Defense Council (1984) what has come to be known as Chevron deference: the doctrine that courts will defer to an administrative agency’s reasonable interpretation of the ambiguous terms of a statute that it administers.
Essentially, once Congress enacts a statute, it has no control over the agency that implements it; but when an agency enacts a rule, that agency decides what it means and has the final say on how it is implemented. That rule has the same effect as a law.
The explosion of rules and regulations over the last 25 years is mind-boggling:
For an analysis of the mixed results of slowing the enactment of new regulations and removing existing regulations, you can read here.
We now have a Congress that has distanced itself from the populace and we are governed by a group of elitist experts:
The separation of powers, and the governing institutions, no longer serve as the principle defenders of a regime of civil and religious liberty. The rights of individuals, and the rule of law itself, are in the hands of the institutions of the administrative state. Consequently, the paramount problem is how to re-establish partisanship on behalf of constitutional government.
Unfortunately, the Republicans have deferred to the Progressives revision of the separation of powers:
The most politically successful, or progressive, party is the one that has most fully embraced the administrative state as fundamentally just, as the good which justifies self-interest on behalf of progress. The conservative party cannot quite accept the alienation posed by the rejection of the past that is required by rational or administrative rule. But it has accepted the political and moral conditions established by historicist, or progressive, thought. As a result, it has lost the understanding of the theoretical meaning that had established the good of constitutionalism. Not surprisingly, progressive parties are confident of their purpose, whereas conservative parties are merely cautious
So those are the facts. We have a Congress that has relinquished its purpose as the legislative branch of government to the administrative state. It cites its role as oversight, but given the number of rules and regulations that have been passed until recently, they probably have little idea of which rules those agencies are creating, except when the most egregious are made (and are widely publicized). Fortunately, the President has demanded the rolling back of many regulations, and restricted the number of regulations that can be written, but given the massive power that has been given to these agencies, and the reliance on their “expertise,” Marini says it will extremely difficult to re-establish the separation of powers and the power balance. He presents a dismal look at the future:
There is no guarantee that Donald Trump can or will succeed in restoring political rule. He has the opportunity to establish a new political landscape, one that is not yet recognizable. It seems likely that the new partisanship he has brought to bear will be at odds with many of the organized interests in Washington. Those interests will defend themselves and their alliances with the bureaucracy. Still, Trump must establish a governing coalition, and this requires the cooperation of a legislature that has been the anchor of the administrative state.
Will Donald Trump receive the support he needs? Do too many Republicans support the status quo? Do they see Donald Trump as a threat to their way of governing?
Donald Trump has been striving to drain the swamp and upend the deep state. He still has a big job in front of him.
Published in Politics
In my opinion, it can only be unwound from the bottom up. Meaning, the majority of Americans need to know the scope of the problem and see it as a threat.
I am not hopeful. Why ? The left us un-educating our youth, and con inc is not willing to go to political war to take education back.
I hate to agree, @kevinschulte, especially as an optimist, but I can’t see a bright future. The only way to inform the public is the MSM., and it is too enmeshed with the Left.
One other problem. The Ivy league schools have been grooming our future rulers. What world view do you think their heads are being filled with .
Not only are they brainwashing them, Kevin, but they are training them to be our “experts” in the administrative state. Sigh.
Good post, Susan. I always watch Levin’s Sunday night show. He is an excellent interviewer, giving his guest the time they need to express complete thoughts and answers. The subjects are nearly always timely and interesting. This particular show, on the administrative state was eye opening, even though I had heard the topic discussed on many other forums. One very big question raised: where in the Constitution does it give any of the three branches the right to abdicate its powers to an alternate entity? In this particular case, Congress has, for years, passed vague laws (I think they are too lazy to develop specifics themselves) and then pass them over to the administration to delineate. Thus handing their duty to make law to that 4th branch of government.
I agree with you on the first paragraph and, unfortunately, on the second paragraph. Still, I will keep fighting to try to get government out of our education system.
Wasn’t that a fascinating point, @cdor? The administrative state has become a fourth state, and no one is willing to stop them. The President is trying to slow them down, but the results are disappointing. It all has to do with which rules they are rolling back (minor ones?) and which they are trying to create (major ones?) The link I provided on the current state gives a clear picture.
I blame a good bit of this on the McCain-Finegold Law. Certainly Wilson disrupted things but the Civil War had also made states’ rights indefensible. What McCain and Finegold did, largely I think because McCain was humiliated by his role in the Keating Five scandal, was to force the Congressional members to spend their time raising money while the staffs wrote the laws in their name . The Keating scandal which gave us this bad law came about because four Democrats got McCain enmeshed in order to give the appearance of bipartisan corruption if caught. McCain was already a bit of a stiff necked type. His history as a POW gave him a whiff of sainthood. When questioned about whether he was a resident of the state he wished to represent, he told the questioner that his longest place of residence was the Hanoi Hilton.
The law was purported to get money out of politics, like all such “reforms.” Does anyone think it accomplished that?
I’m a bit skeptical about blaming McCain-Feingold for the huge amount of time Congress takes to raise money for re-election, although it may be a factor. Marini said there was an explosion of agencies set up during LBJ’s presidency, so that’s another contributor.
I’m just going to point to this article from the Federalist.
It’s possible, but unlikely that enough people could be elected to simply dismantle many of these agencies, but it seems more likely that young conservatives could be taught to do the dirty work of actually getting involved in government agencies with the aim of reducing their effects.
The A/S is the reason we keep moving further left. No matter who wins, if Democrat we get more government, if conservative Republican, we get the same amount of government, if a regular Republican, we get more government. One out of three are the best odds at merely remaining at the same level.
An intriguing idea, !@mattbalzer I’d just wonder if people would work hard to sabotage their efforts; they’d need to be at a high enough level to make things happen.
Great and important post Susan.
“So those are the facts. We have a Congress that has relinquished its purpose as the legislative branch of government to the administrative state. It cites its role as oversight, but given the number of rules and regulations that have been passed until recently, they probably have little idea of which rules those agencies are creating, except when the most egregious are made (and are widely publicized).”
What very few in America realize is that these thousands of new regulations are being handed down with little or no accountability. The Administrative State is thus a silent killer of the American Way of Life, because most Americans have no idea what is really going on.
The Marxist SJW Progressive Left and their buds the Corporate Crony RINO’s understand full well and are very happy with the fact that 90% of our bureaucracy is stuffed with power hungry Leftists who like nothing better than to regulate in a very Leftist way every minute detail of your life and wrest the control of your life from you as an individual. The Administrative State as a consequence is an ominous threat to our Constitutional Rights across the board. That is why those two political factions of the Deep State – the Marxist SJW Progressives and the Crony Capitalist RINO’s are so resistant to reducing the power of the Administrative State because it furthers their goal of granting greater control of society to the experts controlled by them.
The Administrative State issue is one of the most important facing our nation. President Trump should relentlessly challenge the Constitutionality of the Administrative State apparatus. Trump should tirelessly, rudely expose and publicly mock as only he can those Justices on the Supreme Court that rule to maintain the Constitutional abomination that grants these Administrative agencies the power to act as Legislature, Chief Executive, Prosecutor , Judge and Jury all rolled into one on so many issues.
Greatly raising public awareness by challenging the Constitutionality of the Administrative State and making it a political issue is a great way to turn this around. Trump has long hated the Administrative State. It is very easy to demonstrate over and over again the ridiculousness of the many of these regulations and how they destroy the America Way of Life. In addition, the Mueller Gang did the Administrative State no favors by showing how contemptuous these profoundly protected “public servants” are of our Constitutional rights and the Rule of Law.
Once exposed, the Administrative Stare is easy to attack, so do not give up hope for we have a President who finally understands this horrendous problem.
Not necessarily. The example here is the Federalist Society. You have to have the infrastructure in place to get those high-level people, you can’t necessarily just plug someone in a Cabinet-level position and expect them to know what their subordinates are doing; that’s the essence of the deep state, after all.
Similarly, the author makes this point on Twitter:
Compared to the federal, or possibly even the USDA’s budget, $350 million isn’t that much. That doesn’t mean it wasn’t worth doing. And having people in place who can do that means that you can promote those people to make bigger gains.
As crazy as it sounds, is there a way for a person or body to challenge the constitutionality of the Admin. State?
This is a fairly old (2017) tweet from Bill Kristol, but I don’t think he has changed since then:
This is great stuff, Matt. Maybe we should be grooming people strategically to join agencies rather than their running for office!
OMG! Seriously? Then again, he’s part of the swamp. And fighting change, tooth and nail.
Oh yes. It’s just that the McCain-Finegold thing is ignored. The “Great Society” is a large factor much more than the M-F thing. Caro’s biography of Johnson points out that the Senate, before Lyndon cheated his way in in 1948, was a sleepy gentlemens’ club. Johnson’s mentor was Richard Russell, one of those “Republican” segregationists.
Personally, my favourite name for the unelected branch of government is The Crown.
One tool to counter the Administrative State that has had just a tiny step taken, is moving agencies out of DC. Sonny Perdue has proposed to move some offices of the Dept of Agriculture to Kansas, where the food is grown.
Hysteria ensues.
https://www.nytimes.com/2019/06/13/us/politics/agriculture-department-economists-move.html
As Mr. Perdue addressed staff members on Thursday about the move, some employees stood and turned their backs to him in protest.
“The U.S.D.A. has provided no rational justification to employees, to Congress or to its stakeholders for this move, which will make it harder for the agencies to coordinate with other science and research agencies,” said J. David Cox Sr., the national president of the American Federation of Government Employees. “We will continue to work with Congress and other parties to fight this wrongheaded proposal, which is little more than a backdoor way to slash the work force and silence the parts of the agencies’ research that the administration views as inconvenient.”
Democrats in Congress have been sharply critical of the plan and have said they will try to limit the Agriculture Department’s ability to fund the relocation.
“I stand with my colleagues in support of language in the fiscal year 2020 agriculture appropriations package to stop the department from using any money for this relocation,” Representative Donald S. Beyer Jr., Democrat of Virginia, said in a statement. “The Trump administration must put a stop to forcing federal employees from choosing either their jobs or their homes in Virginia.”
But lawmakers whose states stand to gain from the move cheered the decision on Thursday.
“It is always positive when our government can operate outside of Washington and closer to the people it serves, and I am certain that the decision to relocate NIFA and E.R.S. to Kansas City is a good one,” said Senator Jerry Moran, Republican of Kansas. “I look forward to helping welcome these U.S.D.A. agencies and employees to Kansas City.”
Next EPA and Energy.
Oh, the government union is against it? Well then, we should stop the move forthwith!
I love this idea, @michaelkennedy!! I heard the proposal some years ago, but didn’t know things were happening. I”ll bet people are quaking in their boots!!
Major or minor, President Trump sees electoral advantage, resonance with voters, in connecting reduced regulations with better lives for the American people. This was part of his opening bid for reelection. If he is right, that is a sign of changing the public’s view, which is the start point for reform.
The video that you have uploaded is 1 minute long.
Two other similar videos are two minutes long:
https://www.youtube.com/watch?v=0DKtxIkbM5k
https://www.youtube.com/watch?v=y9Po_1CK5SQ
This one appears to have the whole interview (for now):
My thanks to @thecloakedgaijin for alerting me to a problem with the video I’d embedded. It’s essentially been removed. I’ve asked the editors to remove all the versions; the basics of the information are in my post. Sorry.
@susanquinn, thank you for this post. I started a post on this but due to my misunderstanding about how “save” and “preview” interact I lost more than half my post and gave it up. This is an extremely important topic because it explained how the electorate has become irrelevant in the operation of government. Get that? The electorate is irrelevant to the operation of government! “We the People” is on life support. (sigh)
That video has been chopped for infringement, but here is Dr. Marini at Hillsdale in DC:
https://www.youtube.com/watch?v=bIN2XdB_axc
Oh really…go count the number of federal offices moved to West Virginia via the late Senator Byrd.