“Deep State” Paranoia

In the past several weeks, we have heard ranting out of the White House about a “deep state” conspiracy to frustrate Donald Trump’s objectives.  It is only this current fact-free administration which could turn a well-understand aspect of the American government — mentioned in political science courses for over half a century — into a sinister conspiracy aimed at President Trump.  It’s no secret that bureaucracies across the world (not just in the U.S.) function in their own peculiar ways to keep the government functioning — even when elected officials would rather destroy the government.  There are, of course, some features that are driving the Trumpistas crazy.

  1.  The United States is not a dictatorship.  The jobs and duties of the various departments and agencies are defined by statutes and existing regulations.  Because there are grey areas in these statutes and regulations, the executive branch does have some discretion in interpreting them (as discussed regularly in the posts about legal issues).  However, the President can’t on his own enact new laws or repeal existing laws.  Thus, however, much a President might see a need for new revenues to balance the budget, he can’t simply order the Treasury Department to start collecting a new $1 per day tax on every hotel room in the country.  Similarly, the President can’t simply order the permanent resident status of a legal immigrant revoked simply because that permanent resident posts a tweet criticizing the President.

2.  At the federal level, most individuals working for the federal government are careerists who have civil service protection.  Even for agencies that are exempt from civil service protection (which includes many state and city governments), there are First Amendment protections against discharge for political reasons.  Barring gross insubordination, these individuals can keep on doing their jobs as they understand their responsibilities.

3.  Most career civil servants identify with the mission of their department or agency.  It was not a shock that the organizations representing Immigrations and Customs Enforcement and Border Patrol employees were sympathetic to Trump’s proposals to beef up border security and to step up deportation activity.   Similarly, you would expect that career attorneys in the Civil Rights Division believe in enforcing civil rights laws and that those working in the foreign service believe in diplomacy and the traditional foreign policy objectives of the U.S. government.  You may have some temporary influx of “rookies” when government changes hands that agree with the goals of the new administration.  In the long term, however, it is hard to stay in a job when you disagree with the basic goal of the job.  Additionally, many jobs in the federal government (e.g. EPA and the FDA) require a certain educational background.  Most rational persons do not choose their college majors or graduate/professional schools for the purpose of one day undermining a government department.

The combination of these three factors lead to the fact that most employees in most departments are going to keep plugging away under standard operating procedures.  Attorneys in the various parts of the Justice Department (and in the U.S. Attorney’s Offices around the country) will keep on with their current investigations.  The new higher-ups may give specific directions of new matters that they want investigated or a shift in emphasis.  The new bosses may also compromise or settle pending cases on better terms for the other party than the careerists would like.   But an FDA person reviewing an application is not going to recommend approval of a new drug that does not meet the established standards for approval just because President Trump thinks those standards are too tough.  Similarly, an EPA analyst is not going to recommend that a toxic level of pollution be allowed just because Scott Price wants the EPA to look the other way.  This built in behavior is not a formal conspiracy.  It’s just the nature of the bureaucracy.   Prime Minister Trudeau in Canada almost certainly has similar problems with bureaucrats who resist new progressive policies in certain areas.

There are some additional factors that are probably causing Trump unending headaches.  First, as has been discussed multiple times over the years, the U.S. system of government is different from the way that parliamentary democracies work.  In a place like Canada or the United Kingdom, the “political spots” in the government are filled within the first week after the new government takes power (and any vacancies that arise are quickly filled).  In the U.S., the nomination and confirmation process takes an eternity and there is almost always a significant number of vacancies waiting to be filled.  If you haven’t appointed an Assistant Secretary of Labor for OSHA, it is rather hard to implement changes to workplace safety.   When the low levels on the chain of command are empty, more issues rise to higher levels.   When you have an Assistant Administrator for the Office of Water in the EPA, that person can make sure that the senior careerists within that office are following the new policies.  (There will always be things happening at lower levels that may not float up to the Assistant Administrator, but it is much easier for the Assistant Administrator to get that part of the EPA in line than for the Administrator of the EPA to keep all of the units within the EPA following the preferred policies of the White House.)

Second, as noted above and previously, statutes establish programs and set standards for those programs.  As the Obama Administration learned repeatedly (and the Trump Administration is beginning to learn), parties that do not like how the Administration decides a certain issue can challenge those decisions in court.  In some areas, the law has enough give that the Administration has substantial discretion.  In other areas, the key question is one of fact and — once the facts are established — the Administration has very little discretion.   When any administration starts puts its own policy preferences over the facts and the law, the courts will side with those challenging those policies.

In short, whether through its own paranoia or unwillingness to admits its own flaws, the Trump Administration is seeing a conspiracy where none exists.  Instead, the judicial branch and the civil service is acting like they do with every administration.  But it’s much easier claiming that you are the victim of a conspiracy than admitting that the Trump White House is simply incompetent and “Not Ready for Prime Time.”

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