The barely concealed in-house revolt by federal bureaucrats against the Trump Administration has been a long time coming and reveals the greatest internal challenge to the Constitution’s provisions for separation of powers. No one made the issue plainer than James Madison when he wrote in “The Federalist Papers”:
The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether self-appointed, hereditary or elective, may justly be pronounced the very definition of tyranny.
That sentence offers no wiggle room. And generations of Americans, both in and out of government, have taken it to heart. Yet for at least a century, the modern administrative state has been usurping the powers and functions of the authorized branches and, with them, the sovereignty of the American people which is the source of the Constitution’s authority over the organization of our government. Now that there is a president determined to roll back the flood of stifling regulations imposed by a combination of rogue executive orders and departmental “guidelines,” many in the career civil service are in open rebellion.
The first sign of this defiance of the fairly elected chief executive came with conspicuous leaks of sensitive information regarding the pre-Inaugural contacts alleged between National Security Advisor Michael Flynn and Russian operatives. Regardless of the merits of those contacts, it is clear that the object was to torpedo Flynn’s appointment and cripple policy making.
Prior to the presidential election, the nation had already been treated to a well-orchestrated announcement by scores of anonymous “intelligence officials” that the Russians tried to influence the outcome in Trump’s direction (or more precisely against Hillary Clinton’s).
The explanation for this startling development is more mundane than shocking. A plurality of federal employees are Democrats and a great majority give to Democratic Party candidates. The problem is not new.
For example, Richard Nixon was charged in the impeachment resolution with attempting to manipulate the CIA and the FBI for political purposes. As questionable as that attempt was, a failed attempt is not the same as a successful one—which the FBI’s failure to indict Hillary Clinton for her unlawful email server clearly was. The political motivation was clear for anyone with eyes to see.
The textbook for an American government course I took long ago spoke of the “fourth branch of government,” meaning the rise of a vast administrative apparatus which exercised quasi-legislative and quasi-judicial functions. That referred to the practice of issuing regulations to fill out the details of often very broad and amorphous congressional statutes and actually adjudicating disputes arising from those regulations.
Even a confirmed judicial originalist such as the late Associate Justice Antonin Scalia felt obliged to give deference to those regulations as long as they were “reasonable.” I think it not unreasonable to hold that even the most reasonable people can disagree over what is in fact reasonable.
For as current Justice Samuel Alito pointed out in a recent speech for the Claremont Institute, federal agencies are manifestly unreasonable in their interpretations of federal law. Designating water on private property as a “waterway” in order to justify regulating it, or rewriting the levels for greenhouse gases to justify controls on carbon dioxide (what we all exhale), were two shocking examples Alito called out.
Edward Gibbon showed in The Decline and Fall of the Roman Empire how Rome’s Praetorian Guard became so indispensable to the Emperor’s power that in time no one could be selected for or survive in that position without the Guard’s approval. We are fast approaching the day when no President can govern without bureaucratic approval.
Let us be plain. The founders of the modern administrative state, most notably Woodrow Wilson, saw the separation of powers as an unwelcome obstacle to allegedly wise governance. By contrast, because the American Founders knew that human beings were fallible creatures fully capable of corruption by power, they pitted the very ambition that drove citizens to seek office against the ambition of their rivals.
By requiring the approval of the House of Representatives and the Senate, along with that of the president, the Constitution does all that is humanly possible to prevent tyranny in the form of bad laws, decisions or decrees. But when unelected officials in the executive branch can either usurp power belonging to duly constituted office holders or defy those in authority over them, we are in a constitutional crisis.
God knows the people elected an imperfect man as president. But despite (or perhaps because of) Donald Trump’s rough edges, he not only is authorized to exercise his constitutional authority but in fact is setting into motion long-overdue changes. He points to the complexity of the problem with the disarmingly simple formulation that for every new regulation two more must be repealed.
Our appointed officials serve at the pleasure of our elected ones and cannot be permitted to substitute their judgment for those over them. That in fact is what “transparency” in government is about.