The Problem with the Federal Government and the Administrative Branch

Aaron Ross Powell: Welcome to Zooming In, a project of The UnPopulist. I'm Aaron Ross Powell. I'm joined today by my colleagues, Shikha Dalmia and Akiva Malamet for our editors' round table. Recent reporting has uncovered plans by Trump allies, and Trumpist think tanks, and other organizations to deconstruct the administrative state.

A transcript of today’s podcast appears below. It has been edited for flow and clarity.

Aaron Ross Powell: I think all of us agree that the administrative state is unaccountable and too large, so what's wrong with Trump's plans to reform it?

Shikha Dalmia: Good morning, Aaron and Akiva. We haven't done this in a while, right? We are getting together in this format after a long time, but I'm surprised, Aaron, you didn't use the word “deep state,” because that's the term of art these days, right? What's wrong with the “deep state?” There are actually plenty of things wrong with the deep state, but we actually in the US don't really have a deep state.

Deep state is an idea that was originally meant to describe the kind of bureaucracy we had in countries like Turkey and Egypt, which was controlled by the military and security forces. They engaged in all kinds of machinations behind the scenes to control civilian authorities and the populace at large. Their functioning was completely opaque and the subject of all kinds of conspiracy theories in the Middle East.

That's not what we have here in the United States. What we have in the United States is a problematic situation, where those of us who believe in government of limited size and scope, the federal government is very large. It performs functions far beyond what, I think it's fair to say, the Founders originally visualized and the bureaucratic state, the administrative state, has grown apace.

Now, if you talk to my friend Frank Fukuyama, he will tell you that actually, the bureaucracy is not large enough because the federal government's functions have grown far, far more than the bureaucracy has, and the bureaucracy simply can't keep up with providing the kinds of professional and efficient execution that it was meant to do. Now, regardless of what you think about that view, I think from our point of view, an administrative state that in its current form is quite problematic, but it is part of a bigger problem with the federal government.

As the federal government was originally envisualized in this country, each branch had very specific role, and had very specific powers and functions. Each side was supposed to guard that, guard their functions in a very, very jealous way. The idea was that would allow the public at large to keep each government branch publicly accountable, and at the same time, each branch would provide a check on the other.

Now, that actually has not how things have worked out in the United States. Over a period of time, Congress has delegated too much of its authority to both the president and the executive agencies under the president. If you think of the War Powers Act, it was supposed to curtail the president's war-making ability. But Congress has got used to giving very large authorization of power to wage all kinds of wars in all kinds of countries post 9/11. That was one huge usurpation of power by the executive, not intentionally, but in effect from Congress.

Congress also writes very broad and vague legislations and then lets the administrative branch define them in any way it wants to. That essentially means, this is the critique of the administrative state, is that therefore the administrative branches have very sweeping legislative powers through their powers of interpretation that nobody can really control. Congress can't control the executive agencies and the president can't control the executive agencies either, because many of these people are civil servants and bureaucrats and they are protected by rules of a professional bureaucracy. So they become largely unaccountable.

If you are listening to our conservative friends, there's an additional problem, which is that the civil servants tend to be somewhat leftist in their biases. They have an ideological agenda…to promote environmental legislation or equity legislation and what have you. All that becomes a problem for them.

Now, I would be in favor of limiting the size and scope of the administrative branch if it was part of broader reform of government, where the Congress took back its legislative powers and therefore the administrative branches had to do less in terms of interpretation and execution. Then you could shrink the size of the administrative state too. But that's not what Trump is proposing.

What Trump and the Republicans are proposing is not, in my view, a deconstruction, which is a term of art, or the rationalization of the administrative state. They want to co-opt and take over the administrative state for their own ends. Their ends are essentially twofold: To punish their enemies and rewards their friends. That's what the right has been saying it wants to do for a very long time.

“What Trump and the Republicans are proposing is not, in my view, a deconstruction, which is a term of art, or the rationalization of the administrative state. They want to co-opt and take over the administrative state for their own ends. Their ends are essentially twofold: To punish their enemies and rewards their friends.”

— Shikha Dalmia

In Trump's case, it means punishing enemies not just ideological enemies, which is certainly a part of it, but actually, his personal enemies who have tried to hold him accountable for things like calling a mob to ransack the Capitol. He wants to go after Biden and Hunter Biden for purely political purposes. That's not really a reform of the administrative state. That's a co-optation of the of the administrative state.

Now, how is he planning to do that? He's got a three-part plan to do this. The first part is that all presidents get to appoint 4,000 political appointments across federal agencies. That is not something that Trump alone would do, every president does that. What is different in this case is that most presidents will look for people who have expertise and merit, have some kind of claim to merit to run the agencies. That's not what they want to do. Heritage Foundation and America First Policy Institute and then Steve Miller's, I think it's America First Legal. They have a plan to install loyalist—Trump loyalists in these positions. That's a problem.

The second part that they want to do is there are 50,000 employees who are Schedule F employees, and they are off-limits to the political branches in a certain sense. Trump wants to re-up his old executive order, which will essentially make them at-will employees and allow him to fire them. Again, if he was planning to do this in order to streamline and rationalize the administrative state, that would be one thing. That's not what it is. He [Trump] wants to flatten the points of resistance that he encountered in his initial first term that prevented him from implementing unconstitutional plans, many of which he still managed to do. For instance, on immigration and what have you. That's what he's trying to do. That's why it's all problematic from our point of view. Even though we want a smaller administrative state, we want a well-defined government with specific roles. This is not what that is.

“He [Trump] wants to flatten the points of resistance that he encountered in his initial first term that prevented him from implementing unconstitutional plans … That's why it's all problematic from our point of view. Even though we want a smaller administrative state, we want a well-defined government with specific roles.”

— Shikha Dalmia

Akiva: I think those are excellent points, Shikha. I think one of the things that's important to emphasize here is the idea that there is a distinction between harnessing government for your own ends and making government smaller in general. That really the function of what Trump wants to do is to make government a tool of his own ends. One of the things that I think is critical here is that he doesn't really have a plan for what he wants to do in society. What he does is he has certain temperaments about who he likes, who he doesn't like, who his friends are, who his enemies are, and then follows those as a almost random or not random, but very disorganized set of policies to—what he wants to do is in a very disorganized way, punish his friends and reward his enemies and rather than enact any comprehensive plan of reform. In general, what he wants to do is change institutions wholesale so that they no longer serve the so-called “liberal elites” that he's so constantly in favor of attacking.

Now, this resembles in many cases a similar plan that has been enacted in many European populist contexts in Hungary, Turkey, Poland, and so on, where there's no real plan for what government should or shouldn't do. There's an idea that there are certain people in power who we don't like, certain outgroups, social outgroups—liberals, feminists, gay rights advocates, and so on. We want them out of power. Instead, we want to put in our own socially conservative, hardline, nationalist stormtroopers. In essence, what we have is a cultural fight over which culture should the institutions of government be wielded. Should they be wielded in favor of a progressive "woke agenda" or they should be wielded in favor of a socially conservative, regressive, reactionary agenda? Of course, independent of whether you're on one side or another, there's one question which neither side has asked, which is should the institutions of government be wielded for these purposes at all? It's clear that what Trump is doing is simply agreeing with the progressives that the institutions of government should be wielded in order to force people into certain modes of action and modes of being but he wants to do it on behalf of his own conservative, reactionary forces rather than progressive ones.

“There's one question which neither side has asked, which is should the institutions of government be wielded for these purposes at all? It's clear that what Trump is doing is simply agreeing with the progressives that the institutions of government should be wielded in order to force people into certain modes of action and modes of being but he wants to do it on behalf of his own conservative, reactionary forces rather than progressive ones.”

— Akiva Malamet

Aaron: That seems like that describes Trump who is just pure id without much in the way of ideological grounding or even conceptual coherence. He has a sense that there are people who are obsequious to him and he likes those people and people who aren't and he doesn't like those people. Does that describe the broader plan here?

When the Heritage Foundation is putting out its 900-page proposal for policies, their Project 2025, I think it's called, or when they're vetting people to take over all of these roles in the administrative state that Trump will make vacant through these various machinations, it feels like those sorts of organizations and people like Stephen Miller do have a more coherent view of what they want society to look like, why they are doing this. They're using Trump as the way to gain power, and then these mechanisms are a way to further assert power because Trump has a certain sort of popularity with a distressingly large portion of the population and we can leverage that, but this feels much more calculated than what you're describing, Akiva.

I agree, the Viktor Orban analogies, I think, hold, that there is this sense that we just-- what we want is what we, meaning the people advancing these plans, not me, want is a society that holds to a certain set of conservative views and values and uses the oppressive power of the state to stamp out feminism and LGBT identities and wokeism, whatever they happen to mean by that, and doesn't make white people uncomfortable by teaching the history of racism, and so on.

It doesn't feel like just we want to change the culture of the institutions. It feels much more like there is a specific end goal of remaking society to look like a certain thing in mind.

Shikha: No, I think that's exactly right. In Trump's first term, there was a disconnect, right? The existing conservative establishment had, which reflected the Reagan era consensus of a certain fealty to limited government principles … at least it offered lip service to those principles, and also wanted certain limitations on the power of the state. They may have had a cultural agenda, just as the left had a cultural agenda, but they had a higher loyalty to these sort of other principles. And they felt that if Trump came along, they could use the Federalist Society to put such jurists in courts and who were not primarily—who were originalists, limited government types, textualists, and what have you, first, and culture warriors second.

Trump came along on a populist agenda. His was a populist mandate. He got elected as a culture warrior. Now, one can debate whether Trump is truly a culture warrior or not, it doesn't matter, but he got elected on a culture warrior agenda. That was combined with a certain taste for power in him. To the extent that the courts, the bureaucratic branches, the Republican Party was populated with these other kinds of conservatives, there was a mismatch in what he wanted, and his mandate, and what they wanted, and their long-standing, loyalties and commitments.

That has all shifted now. Now there is a harmony in the mandate that Trump wants to get elected on and what the right-wing establishment wants to do. That's where the Heritage Foundations of the world come in. Heritage now looks very different. Heritage was never to my taste, but the Heritage of today is very different from the Heritage of pre-Trump. Now it's in it for the power. The whole idea of a limited government because you at least worry about what your opponents are going to do when they come to power is gone through the window. They want to amass as much power to cram as much of their culture war agenda as they possibly can. Trump, they see, will play ball on that. There will be no tension between that agenda and what Trump wants to accomplish.

Trump's added need is for loyalty. Trump's added need is for personal power which they are just happy to go along with because in this case, his power will, in fact, serve their ideological goals.

“The right is arguably the most radical political contingent in the United States right now, has abandoned conservatism and doesn't hold at all to a desire to maintain governing institutions but instead…is simply a political movement for exercising heavy power in the service of creating or reestablishing certain hierarchies that they see as having eroded under liberalism.”

—Aaaron Ross Powell

Aaron: It seems like we are seeing then in the way that you describe it, something of a broader version of a longtime hobby horse of mine that I've written about, which is we, especially United States, tend to treat the right and conservatism as synonyms. They both just mean the same thing. If you're on the right, you're a conservative, if you're a conservative, you're on the right and their political projects are identical. It feels like what's happening now and what was recognized in the first Trump administration with the kinds of people, they appointed a lot of conservatives to positions of power.

What they didn't get from that was a sufficient quantity of people who were the necessary degree of being on “the right” to do the things that they wanted. That these people had conservative commitments to institutions and principles and so on that got in the way of a far-right agenda. A second Trump term and this split in the Heritage Foundation, the Heritage Foundation used to be a conservative organization. Now it is a far-right organization that is not conservative. That there is this real decoupling and that the right is arguably the most radical political contingent in the United States right now, has abandoned conservatism and doesn't hold at all to a desire to maintain governing institutions but instead, it ties back to what the right has traditionally meant, is simply a political movement for exercising heavy power in the service of creating or reestablishing certain hierarchies that they see as having eroded under liberalism.

Akiva: Yes, I think that's right. I think what's happened is we've had a destruction of the idea of conservatism, not just in the sense of small government, but in the sense of conserving institutions, in the sense of there being checks and balances and balance to power and preserving a certain liberal legacy of America's founding documents and a shift towards trying to exercise power for its own sake and to exercising power on behalf of certain culturally conservative ends. We have a shift from conservatism in the sense of conservation or conservatism in the sense of limited government to conservatism as revolutionary.

“We've had a destruction of the idea of conservatism, not just in the sense of small government, but in the sense of conserving institutions, in the sense of there being checks and balances and balance to power and preserving a certain liberal legacy of America's founding documents and a shift towards trying to exercise power for its own sake and to exercising power on behalf of certain culturally conservative ends.”

— Akiva Malamet

This is something that Tom Palmer talks about in an unpublished paper that he delivered to the Mont Pelerin Society about the idea of a conservative revolutionary. This is something that the conservative revolutionary in the original sense were actually the predecessors to the Nazi regime in Germany. These were people who saw the whole business of democratic politics, of the give and take of democratic politics as impeding their ability to enact their will on the populace and to impose their social conservative agenda, and to revive the cult of the nation, and so on.

Describe themselves very much as conservative, but not in the sense of everlasting principles and certain code of ethics and so on, but conservative in the sense of being right wing and right wing in the sense of being nationalist, being socially conservative, and so on. We see this repeat itself in the Trump administration to a greater extent and which is trying to follow in the lead of contemporary populists like Viktor Orban, like the former prime minister of Poland, like Giorgia Meloni in Italy and so on, and who see their role as agents of the right and the right being defined in a revolutionary way to transform society into an organ of their own making. An organ that is suffused and constructed to favor certain social classes and hierarchies to defend traditional gender roles, to defend the traditional family unit, to be anti-LGBT and so on.

Shikha: Right. Yes, I think, Tom Palmer's piece on the conservative revolution was actually sort of eye-opening because it was so historically grounded, right? If you don't like the so-called liberal radicals, wait till you get the conservative radicals who get their hands on the levers of the state. It is pretty terrifying what they would want to do. If you look at some of like the blueprints of what the Heritage Foundation and Steve Miller have in mind, it's downright chilling.

Steve Miller, his immigration agenda, and he has said that, he's openly mocking immigration advocates right now and saying, wait till our second term, you won't know what's hit you. The kinds of things he wants to do, not only will he re-up everything he did in his first term, he has plans to build all kinds of huge detention camps to throw immigrants, undocumented immigrants and anybody else coming into the country. There will be deportation raids galore. Beyond that, plans to take away, deport people who are openly pro-Palestinian or anti-Israel. At least this is Steve Miller's agenda.

There will be litmus tests on the immigrants who are coming into the country to make sure they actually tow sort of like a right-wing line. Now, this kind of meddling, trying to socially engineer a public to serve the state ends of the right is kind of scary and not where this country has gone before, as best as I know, even under the worst of circumstances. Yes, so sort of the idea is to have some a conservative revolution in which you use the levers of the state to cram as much of the conservative social agenda as possible and then to hell with the next, the Democratic government once it comes into power. My fear is not just that, what conservatives are doing will end with conservatives, but then it will be picked up by progressives in future administrations to push their own, draconian ends. It's a downward spiral.

I don't think we want to do is become cheerleaders for the administrative state in the way that in the early Trump administration and throughout the Trump administration, you suddenly saw progressives embracing the FBI as this force for preserving and protecting democracy and our freedoms.

—Aaron Ross Powell

Aaron: We have a situation where you have a past president who hopes to be a future president who wants to come in and re-engineer the state along essentially to be what Polemicus thought of as justice, which as we've mentioned, is punishing your enemies and rewarding your friends. Married to these conservative intellectuals who want to take those urges and use them in the service of re-engineering society towards far-right ends.

A lot of this is being spoken about is, to go back to our opening remarks, a lot of this is being spoken about in the language of reforming the federal bureaucracy, shrinking the administrative state, making it accountable, making career bureaucrats easier to fire so that we can get turnover and we can get accountability. All of these are things that classical liberals have talked about for decades, right? These are, we need to reform the administrative state. We need to figure out how to reform the administrative state. We need to figure out how to make it more accountable. We need to shrink it. We need to return lawmaking power to Congress or demand that Congress retake lawmaking power instead of writing this legislation that's like, this bill will, tasks the EPA with making the environment better and then lets the EPA fill in all the details of what making the environment better means and so on.

All of that sounds very classical liberal, but is now being co-opted for decidedly anti-liberal, if not, outright authoritarian ends. What do we do about that? Because what I don't think we want to do is become cheerleaders for the administrative state in the way that in the early Trump administration and throughout the Trump administration, you suddenly saw progressives embracing the FBI as this force for preserving and protecting democracy and our freedoms. Shikha, when you were saying at the beginning that you didn't think there ever was a deep state in the US, the one counter example I could think of is like J. Edgar Hoover's FBI was about as close to what you were describing as I think, as far as big institutions go.

We don't want to just become Pollyannish about the administrative state because all of those classical liberal critiques still hold, right? What do we, what do we do about this current situation? How do we fight back against misuse of administrative state reform without giving up on the real need to reform this for liberal ends?

Shikha: One of the things that the Trump era did was to make me re-evaluate my positions about the administrative state. I think I've mentioned to you guys, I grew up in the India of the License Raj and the Yes Minister BBC series. The License Raj was this hidebound bureaucracy which controlled the lives of citizens because it had these powers to extract rents in the form of bribes from them for everything that an ordinary citizen wanted to do. You want to build a house? You're not going to get clearance from the bureaucrats till you give them a hefty bribe. There was so much corruption in India due to the administrative state that the reform of the administrative state was something that appeals to me inherently. The one thing that the administrative state in the US has done well—and I take your example of J. Edgar Hoover, Aaron completely, not just that he was going after Martin Luther King, they were going after Martin Luther King, the FBI was, and infiltrating civil rights groups for the worst possible ends—but that said, by and large, the administrative state has done a pretty good job of keeping public corruption at bay in this country.

American bureaucracy and American government, at least at the federal level, is really not all that corrupt. I can't overstate just how much stability and trust that builds in institutions when you have institutions that at least don't have this one big vice, which is corruption.

In the Trump era, the administrative state performed quite well, I think. It provided advice to him and provided resistance to his worst possible designs. Things on immigration would have been a whole lot worse if there hadn't been bureaucrats within the Department of Homeland Security telling Trump, no, you can't throw people into concentration camps, essentially, right?

“American bureaucracy and American government, at least at the federal level, is really not all that corrupt. I can't overstate just how much stability and trust that builds in institutions when you have institutions that at least don't have this one big vice, which is corruption. In the Trump era, the administrative state performed quite well, I think. It provided advice to him and provided resistance to his worst possible designs.”

— Shikha Dalmia

You can't simply go around taking funds from the military and putting them towards the wall, although Trump tried to do it via an executive order. The one role that the administrative, and this is where I agree with Frank Fukuyama, is there is a need to defend a certain amount of independence of the administrative state so that it can provide a check on the nefarious designs of government officials who wield a whole lot of power and ensure that they are wielding this power in a responsible and a non-corrupt way. How do we give some autonomy to the administrative state to provide this check on public corruption, while at the same time, not becoming monstrous and a bane on the public itself is a difficult question.

What you don't do, you don't do is flatten these points of internal resistance so that a populist demagogue can simply come in and do exactly what he pleases, regardless of whether it fits in with the broader constitutional design or not. I don't know, that doesn't answer your question, but I think, the issue is to get the incentives right within the administrative state rather than to simply throw out the baby with the bathwater.

Akiva: Yes, I agree with that. I think one of the things that classical liberals often overlook is that they may not want much of a state, but those parts of a state that they do want to function, have to function well. Even if you wanted a really small state, a night watchman state even, you need the courts to be not corrupt. You need the bureaucracy to be non-corrupt, to be accountable to people. One form of accountability is avoiding awarding political office on the basis of patronage, on the basis of nepotism, on the basis of special connections, because of bribes, and so on.

“Even if you wanted a really small state, a night watchman state even, you need the courts to be not corrupt. You need the bureaucracy to be non-corrupt, to be accountable to people. One form of accountability is avoiding awarding political office on the basis of patronage, on the basis of nepotism, on the basis of special connections, because of bribes, and so on.”

— Akiva Malamet

You want a culture of meritocracy to exist so that you have a set of people in these agencies who are loyal to the agency and to upholding the rule of law and to upholding norms of impartiality rather than worrying about whether they're friends with their boss or whether their boss is friends with the president and so on.

You want to avoid these kinds of norms of corruption that are so common in so many parts of the world in which the deep state is really unaccountable and in which you really don't have the kinds of checks and balances between the legislature, the executive, and the administrative state that you do in the United States.

Aaron: Thank you for listening to Zooming In at The UnPopulist. If you enjoy this show, please take a moment to review us and Apple Podcasts and also check out ReImagining Liberty, our sister podcast at The UnPopulist, where I explore the emancipatory and cosmopolitan case for radical social, political, and economic freedom. Zooming In is a project of The UnPopulist.

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