How Trump is dismantling a pillar of the American state
Donald Trump is presiding over the most withering, devastating, and trenchant attack on the
American administrative state this nation has ever known by Jon Michaels
Tue 7 Nov ‘17 08.36 EST
There is no shortage of adjectives to describe the Trump presidency. Venal. Shameless. Bigoted. Impulsive. Feckless. Amid the never-ending stream of scandals and outrages, it is easy to lose sight of just what this administration is doing well – and where it is proving to be spectacularly disciplined, calculating and effective.
Donald Trump is presiding over the most withering, devastating, and trenchant attack on the American administrative state this nation has ever known.
The administrative state, a pillar of modern American government, is tasked with making and enforcing economic and environmental regulations, designing and running social welfare programs, fighting crime and corruption, providing for the national defense and so much more. Yet, in a little more than nine months, Trump has taken aim and hit his bull’s-eye. Far from the public’s gaze, he’s rescinded, rolled backed, and reversed countless environmental, labor, education, transportation, food and drug, and consumer protection rules and regulations.
Cast largely as liberty enhancing, these deregulatory efforts endanger the safety, health, and welfare of all Americans, not to mention a good deal of the rest of the world who depend on the United States to do its part to combat global warming, banking and securities fraud, and worker exploitation.
At the same time, Trump is vilifying the professional bureaucracy, that vast community of apolitical, career officials whose work it is to design, administer, and demand compliance with administrative regulations—and who are, by congressional design and longstanding practice, well positioned to question and challenge the directives of an abusive, impulsive, or simply hyperpartisan president.
Trump has repeatedly referred to the bureaucracy as a ―swamp,‖ which must be drained; his surrogates have repeatedly alleged that these officials are part of a shadowy ―Deep State‖ – and intent on subverting our democracy; and his deputies have taken steps to marginalize their involvement in federal policymaking.
This one-two punch of policy deregulation and bureaucratic delegitimization is a combination that erstwhile White House strategist Steve Bannon gleefully calls the ―deconstruction of the administrative state‖. Already this deconstruction is turning back the clock, sometimes years, sometimes decades, on the kinds of protections and assurances that enable Americans to be confident and productive participants in the national political economy.
Consider the Trump administration in action. While all eyes are drawn to the three-ring circus of White House saber-rattling, indictments, and Twitter wars, Trump and his cabinet secretaries have been quietly at work on this project of regulatory deconstruction.
Let’s start with the basics. Donald Trump is hardly the first president to rail against the administrative state, or to promise a massive downsizing of the federal bureaucracy. But, so far, he’s been the most unflinching.
Previous presidents – including Ronald Reagan who famously intoned: ―government is not the solution to our problem; government is the problem‖ – either softened their stance once confronted with legal and technocratic arguments in favor of basic safety, health, and welfare rights and protections; or they took their hand off the deregulatory throttle once they encountered sufficient public or congressional pushback.
Conservative folklore aside, public pressure during the Reagan years led to the preservation and partial strengthening of the Clean Air Act, the softening of the campaign promise to ―mine more, drill more, cut more timber,‖ and the expansion of federal welfare and education programs that the Gipper regularly attacked.
By contrast, Trump, in this respect, has been a conservative’s dream. Championing the interests of big business, Trump has engineered the rescission of 14 major environmental, financial, and labor rules. (Prior to 2017, only one other rule had been formally rescinded, in 2001 under George W Bush.)
In addition, Trump has begun the process of withdrawing from the Paris Climate Agreement; relieved builders (just a couple weeks before the devastating hurricanes in Texas and Florida) of the responsibility to account for increased flooding, rising sea levels, and other manifestations of climate change in their design plans; reversed a ban on drilling for oil in the Arctic; and revoked an order requiring federal contractors to take affirmative steps to prevent and combat sexual harassment and discrimination as well as to reduce wage disparities between men and women.
Trump’s surrogates – those hand-picked to lead the various administrative agencies – are proving similarly committed to the White House’s deregulatory agenda. Consider, for example, the current EPA chief, Scott Pruitt.
A climate change skeptic and long-time critic of the agency he now runs, Pruitt has blocked or delayed dozens of would-be clean air, clean water, and carbon emission rules. He has also worked to rescind the heralded Clean Power Plan, and rejected the recommended ban on certain agriculture pesticides, reversing the expert findings of career staff detailing the disastrous effects of these chemicals particularly on low-wage farm laborers and their children.
Pruitt is hardly alone. In department after department, Trump appointees are busy dismantling critical health and safety regulations – much of this work happening light years away from a spotlight hardly large enough to cover all that is salacious and scandalous in the Trump White House.
For example, Interior Secretary Ryan Zinke has made the all-but-unprecedented recommendation that Trump declassify protected national monuments – sprawling tracts of land possessing significant natural, cultural, or historic significance. (No other presidential administration has sought to declassify a national monument in nearly 40 years.)
Zinke has also moved to withdraw rules regulating the controversial drilling practice known as fracking. And he has shelved an important report documenting the health risks associated with specific types of coal mining – a report that would, under ordinary circumstances, serve as the basis for a federal rule banning or severely restricting such mining.
Lastly, the Trump Labor Department has, among other things, delayed implementation of important enforcement provisions of a fiduciary rule requiring financial advisors to put their clients’ interests ahead of their own.
This is hardly a comprehensive list. Many more regulatory reversals, big and small, have already occurred; and we should expect more in the weeks and months to follow.
Indeed, Commerce Secretary Wilbur Ross recently gave voice to these expectations, urging wavering Trump allies to stay loyal, to overlook the administration’s glaring failures precisely because the Trump deregulatory agenda is so important to the American business community.
But in many respects, the instant policy rollbacks and recissions aren’t the most profound or important ones. Trump hasn’t just taken steps to deregulate in the here and now. He and his lieutenants are also damaging the machinery of regulation, perhaps to such an extent that federal agencies won’t be capable of swinging back into action when outcry over lax environmental, labor, and health and safety protections propels a pro-regulation president into office.
Through active campaigns to, again, ―drain the swamp‖ and disable the ―deep state,‖ the infrastructure of government—and not just the programs themselves—is eroding before our very eyes. To be clear, Trump’s regulatory successes have not been cakewalks. At nearly every turn, he and his agency heads have encountered career personnel who’ve challenged the administration’s decisions as unsound and, at times, illegal.
But Trump has been waging and winning a battle of attrition. He’s set out to fire those he’s allowed to—think FBI Director James Comey, Acting Attorney General Sally Yates, and US Attorney for New York Preet Bharara. He has also disbanded working groups of distinguished scientists – the Interior department alone has shut down the work of more than 200 such groups – and bullied those career experts protected against at-will termination.
Among the administration’s preferred tactics to cow that last group of career employees into submission or, better yet, to push them out, has been to cancel, defund, or ignore their programs.
That has happened, among other places, at the State Department and the EPA.
He’s conducted investigatory witch hunts against career employees. He’s exiled some to positions far outside of their expertise and has directed others to advance legally and programmatically unsupportable policies. These tactics have been used against employees at the EPA as well as the Departments of Education, Interior, Justice, and State, to name just a few.
This attrition campaign has paid dividends. Hundreds of frustrated senior officials have already left. The departed are, invariably, among the best educated and most talented – those scientists, engineers, economists, lawyers, and social workers most readily able to secure rewarding employment elsewhere.
Those left behind must now compensate for the loss of their exceptional colleagues and thus are at an even bigger disadvantage in efforts to challenge unsound and unlawful deregulatory directives.
As a result, we already see rudderless program administration, the withering of transnational alliances, legal flip-flopping in cases being argued in the federal courts, and inadequate responses to various crises.
But, again, that’s just the immediate effect. Attrition will continue apace; recruitment shortfalls will soon become evident; after all, who wants the thankless task of working for federal agencies demonized both within and outside of government? In time, key agencies may find themselves incapacitated, lacking the talent, morale, and experience to carry out their congressionally mandated responsibilities.
Wilbur Ross and others bent on a laissez-faire America may hold out hope that Trump is a Joshua to Reagan’s Moses, ready to lead the overtaxed and over-regulated into a libertarian Promised Land that until now has remained just out of reach.
But Trump is no Joshua. His corrupt, abusive, and otherwise incompetent presidency proves as much. Instead, he’s Fonzie on water skis, and his campaign to deconstruct the administrative state may well be poised to jump the shark.
Simply put, Trump’s bullying of the federal bureaucracy may serve to show Americans how much they need the administrative state, how important professional, apolitical civil servants are to the stability and well-being of the nation, and what a dangerous game we play when we let presidential surrogates demonize civil servants as part of treasonous deep state intent on subverting the government.
Trump may, in fact, be the only man alive capable of making bureaucrats—bureaucrats!— popular. All of a sudden, we’re no longer primed to think of federal employees as lazy and lackluster, an all-too-frequent characterization in the 1980s, 1990s, and 2000s.
Now we think of them as stellar scientists, lawyers, and diplomats—the very best this country has to offer—and conservatives and progressives both are mourning their untimely and largely involuntary departure from government employ.
When the dust settles on this presidency, we should be ready and willing to encourage a bureaucratic renaissance—and make the necessary investments to redeem and restore an administrative state capable both of protecting our health, safety, and welfare and serving as a bulwark of the rule of law.
For now, it is best to remember (and remind others) that bureaucracy was never a swamp but rather a deep reservoir of talented, loyal, and devoted experts, whose effectiveness turned in considerable part on their political independence.
This independence enabled them to serve across presidential administrations; to develop technical proficiency uncorrupted by political fads; and to speak truth to power to Democrats and Republicans alike.
• Jon Michaels is Professor of Law at UCLA School of Law. His latest book is Constitutional Coup: Privatization’s Threat to the American Republic.
• This piece is the first in a series of essays entitled ‘While you weren’t looking - how Trump is dismantling the administrative state’
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