Administrative State Delenda Est

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Posted: Mar 29, 2017 12:01 AM
Administrative State Delenda Est

*This column was co-authored by Jarrett Stepman

With the election of Donald Trump and Republican majorities in the House and Senate, there is no single issue in a more desperate need of addressing than the out-of-control administrative state.

While taxes and healthcare are perennial policy battles, the so-called “fourth branch” is in many ways responsible for the “rigged game” that many conservative voters are tired of losing. When Democrats are in power, government grows; when Republicans are, it continues to do so at a slightly decelerated pace.

Until Congress and the president take concrete steps to rein in the bureaucrats who stay in office regardless of who sits in the Oval Office, they are at best playing for temporary stakes.

While the Congressional Review Act and the proposed REINS Act are good methods to put legislative power back with Congress, more is needed to control the fourth branch of government from within. The permanent, unaccountable elite that Trump often rails against can find no better symbol than the nearly three million federal government employees who are virtually guaranteed jobs for life.

Though many Americans undoubtedly voted for Trump in part because they hoped he could carry out his catch phrase “you’re fired,” and fire bureaucrats, the current laws don’t allow him to do so.

The Pendleton Civil Service Act was passed in the late 19th century to control the “spoils system,” which was when federal employees were often hired or fired based on their political party. The law essentially made a few technical jobs permanent and unresponsive to political change to prevent the raw politicization of the bureaucracy.

Unfortunately, the civil service law never entirely prevented spoils and instead created all new headaches, many of which have become even worse today due to the explosive growth in government over the past century.

Around 90 percent of all federal government jobs now have civil service protections, a far cry from the mere handful of protected jobs when the law first passed. And “burrowing,” whereby political appointees secure protected civil service jobs after the president who appointed them leaves office, has become a common practice. Many of the top-level, career-protected bureaucrats in important agencies today were Obama political appointees during the last administration.

With 95 percent—99 percent in the State Department—of political donations from federal employees going to the Democratic Party, it’s hard to say spoils haven’t survived. Instead of the detached, apolitical bureaucracy that turn-of-the-century Progressives imagined, there now exists a permanent class of bureaucrats with almost limitless power over the lives of Americans.

As we wrote in the ALEC paperCivil Service Reform for the 21st Century: Restoring Democratic Accountability to the Administrative State:

Though the abolishment of the spoils system was meant to mitigate corruption and incompetence, it has resulted in a toxic combination of enhanced agency power and an entrenched civil servant class with its own institutional—and frequently political—interests, virtually unaccountable to the president or any other elected official.

The mirage of civil service nonpartisanship has been revealed in the months after Trump’s election as EPA officials work to undermine his agenda, Energy Department employees leak information to the press, and burrowed State Department officials publicly attack the administration.

But the process of curtailing these agencies is much more complicated than simply legislating them away with a single bill or executive order. Any attempt to eliminate departments or curtail their power will be met with resistance from the inside.

Under current laws, there is little Trump can do to contain rogue bureaucrats. This needs to change.

Andrew Jackson—to whom Trump is now fond of comparing himself—perfectly described the dangerof a calcified set of bureaucrats who begin to see office as a “species of property” only existing to promote “individual interests.”

In his first annual message to Congress, Jackson said that occasionally removing public servants from office “constitutes a leading principle in the republican creed.”

This is the rare issue where Trump and conservatives, sometimes uneasy bedfellows, should be able to ally without reservation.

What could be more Trumpian than being able to say “you’re fired” to any bureaucrat in his employ? And what should conservatives be focused on if not the unconstitutional and unaccountable growth of agencies that strangle any hope of substantive policy success?

With Republican control at a likely zenith at both the federal and state levels, if conservatives do not act now to restore the elected branches to their proper primacy, we are unlikely to get another opportunity to do so.

Failing to restrain the permanent political class of federal employees will ensure that the principles of the Founding remain irrelevant in the policy debates of the day, which will continue to stay between goalposts seemingly always moving left.

Trump should follow Jackson’s lead, and channel America’s populist mood to restore constitutional government. Conservatives must urge him to take a hatchet to the overbearing and out-of-control administrative state that is outraged at even the suggestion that it ought to be accountable to the American people.