On the campaign trail, Donald Trump caught a lot of flak for calling America’s political system “rigged.” But while interference at the voting booth has since become a political football for both parties, limited-government conservatives have indeed been playing a rigged game—for more than a century. This game has allowed government to expand its reach into Americans’ lives regardless of who wins at the ballot box.
An elite class of nearly three million well-paid civil servants, protected from the democratically determined will of the American people and their elected representatives, make a mockery of our constitutional separation of powers every day by exercising legislative, executive, and judicial functions under the same roof. This behemoth administrative state continues to expand its powers year after year, regardless of which party holds Congress and the White House. It grows quickly when we elect a Lyndon Johnson, and grows even when we elect a Ronald Reagan.
Trump has already clashed with the bureaucrats ostensibly under his command with the high-profile firing of Obama political appointee Sally Yates, but lower-level bureaucrats in the Environmental Protection Agency and State Department have already started to voice their intentions to do everything they can to contravene the lawfully elected president’s policy priorities. Almost 200 federal employees have already signed up for a “civil disobedience” class, which promises to teach them how to obstruct the Trump administration at every turn without losing their jobs.
Not only was Trump right to fire Yates for publicly defying the stated policy of his administration, but he should be able to do the same to any employee at any level of the executive branch who does the same. But the businessman will soon discover that the laws governing the federal bureaucracy do not allow him the same liberties he had as a CEO or reality TV star.
The President Can’t Fire His Own Staff
One of the reasons for administrative agencies’ imperviousness to elections is that the vast majority of the career bureaucrats who staff them are protected from losing on Trump’s new version of “The Apprentice.” Nineteenth-century legislation called the Pendleton Act protects non-political appointees from being fired for opposing the incoming administration’s political agenda.
Although the law was initially meant to apply to just a handful of technical positions, the act’s provision allowing the president to expand its protections has ensured that successive administrations have “locked in” their own appointees. Today, the Pendleton Act shields from dismissal, even on legitimate grounds, more than 90 percent of civil servants.
The act aimed to combat some of the ills of the so-called “spoils system” under which presidents could replace anyone working in the executive branch with their own staff. The downsides of that system, however, are greatly exaggerated. Historical records show that even during the heyday of the Jacksonian spoils system, only about 10 percent of the civil servants from the outgoing administration were actually fired during turnover.
The Jacksonians called their system “rotation in office”—actual shakeups to the civil service based on who resides at 1600 Pennsylvania Ave. As a consequence, Jacksonian-era voters were able to immediately observe the effects their participation and preferred policies had on the capital city. Perhaps it is no coincidence, then, that 1840 election saw astonishing turnout, with more than 80 percent of eligible voters casting their ballots.
By contrast, while the franchise has expanded over the last century, the issues We the People get to vote on seem to grow fewer, and the differences between administrations smaller, as an unaccountable, anti-democratic, professional bureaucracy gets to make important public policy decisions regarding the environment, banking, education, energy, and more.
The Supreme Court Recuses Itself from Its Job
Recall Milton Friedman’s joke that there is “nothing so permanent as a temporary government program”? Adding to the natural tendency of bureaucracies to expand and the job protections most career civil servants enjoy under the Pendleton Act, the judicial branch has excused itself from adjudicating many matters of agency action.
In 1984, the Supreme Court ruled that it would defer to administrative agencies when they are interpreting the statutes that grant them power to act, unless those interpretations are contrary to the clear intent of Congress. Chevron deference is a complex part of administrative law, but the upshot for American citizens is that the Supreme Court, although appointed by their elected president, often no longer exercises judicial review over bureaucratic agencies when those agencies decide how far their own power extends under the law, although that’s precisely when they ought to have the least say.
Trump’s appointment of Neil Gorsuch to the Supreme Court could strike a blow against the administrative state in this regard. In a concurring opinion last year, Gorsuch wrote: “[Chevron deference and subsequent cases] still risk trampling the constitutional design by affording executive agencies license to overrule a judicial declaration of the law’s meaning prospectively, just as legislation might — and all without the inconvenience of having to engage the legislative processes the Constitution prescribes.”
This guy gets it. He needs to not be the only one.
A Century of Quibbling Around the Edges
Attempts to rein in the administrative agencies have created some boundaries around their actions, but failed to truly introduce accountability. Instead, statutes like the Administrative Procedure Act have substituted half-hearted replacements for the constitutional protections the Founders intended Americans to have: procedure instead of a citizens’ vote, administrative review in place of judicial, and a voluminous notice and comment procedure (in practice only accessible to the well-connected in Washington) instead of due process.
Trump has moved the portrait of our seventh president, Andrew Jackson, back into the Oval Office. He would do well to heed Jackson’s words upon implementing his own civil service reform: “In a country where offices are created solely for the benefit of the people no one man has any more intrinsic right to official station than another. Offices were not established to give support to particular men at the public expense… It is the people, and they alone, who have a right to complain when a bad officer is substituted for a good one.”
Conservatives have been skeptical of Trump’s ideological bona fides. If the president strikes the first substantial blows against the “fourth branch” in more than a century by proposing civil service reform, he will not only keep his own administration from being mired in four years of policy spats with treacherous bureaucrats, but also hand conservatives a structural, long-term victory that will make it possible to restore constitutional governance the United States.
President Trump promised in his Jacksonian inaugural address to hand power back to the people of this country, saying that “January twentieth, 2017, will be remembered as the day the people became the rulers of this nation again.” By stripping the bureaucratic class of their special protections that few other Americans enjoy, Trump can ensure that when the people speak, all of Washington has to listen.
