Steve Bannon, President Donald Trump’s chief ideologist, told the Conservative Political Action Conference last month that he and his president were working to achieve “the deconstruction of the administrative state.” The Washington Post explained the phrase as “the system of taxes, regulations and trade pacts that the president says have stymied economic growth and infringed upon U.S. sovereignty.” Bannon did not define the phrase himself, but he did indicate the sort of thing that “the administrative state” does: pass regulations to implement policies that “the progressive left” can’t get passed any other way.
Press Secretary Sean Spicer on March 10 called it the “deep state,” which he says is “people who stay in government … and continue to espouse the agenda of the previous administration.”
Whatever the administration spokesmen call it, the administrative or deep state seems like shorthand for earlier policies the administration is trying to reverse. Informing both labels is the notion that the administration is entitled, merely by virtue of the president’s place atop the executive branch, to stop the implementation of any and all national policies in place before Jan. 20. That notion underlay the angry outburst by senior adviser Stephen Miller to the effect that Trump’s authority in national security matters “will not be questioned” when a federal district judge invalidated the first version of Trump’s executive order establishing the travel ban from certain Muslim nations (The 9th U.S. Circuit Court of Appeals went ahead and, fully in keeping with precedent, questioned anyway.)
The administration, unfortunately, seems to be short of lawyers who can explain these matters to the president. He needs to learn that while he has a critical policy-formulating role, his power to act unilaterally is limited, constrained by all the laws that currently exist. Of all sources of law, the president can change only executive orders on his own. By contrast, the Constitution, treaties, statutes and regulations can be changed only with the cooperation of other government actors.
At least dimly aware of this, Trump seems to be trying to undermine existing laws he dislikes that he cannot change, or cannot change yet, by demonizing or firing federal employees trying to do their duty to implement the existing laws, or by defunding or attritting the agencies that implement the laws, or by appointing agency heads dedicated to stymying their own agency’s mission (e.g. carbon dioxide denialist Scott Pruitt as head of EPA).
Take Care Clause
There is no doubt that the president may legitimately use some of the tools he is employing in this effort, like powers of appointment and dismissal, and some discretionary budget actions, not to mention the government’s prosecutorial discretion, part of which he has the right to control. But there does come a point where these actions render laws unenforced. And this brings him up against the Take Care Clause, in Article II, Section 3 of the Constitution. Presidents are required to “take care that the laws be faithfully executed.” The clause contains no qualifying language; presidents are supposed to take care that all laws be faithfully executed, not just the ones they like.
Now, we must be real about this. There have never been resources available to presidents sufficient to allow them to see that each and every law is fully enforced. Choices have always had to be made. Nor is presidential foot-dragging unknown when it comes to disliked laws. The Obama administration, for instance, famously failed to enforce marijuana laws. And several administrations by now have failed to deport millions of undocumented aliens.
It is clear, however, that the scale of the Trump administration’s defiance of the laws Trump swore an oath to execute is of unprecedented scale. He is using these various tools to try to weaken or nullify such programs as civil rights enforcement, environmental protection, wage-and-hour protections, support for the United Nations, Obamacare, the National Endowments for the Arts and the Humanities, the wall between church and state in education funding, public housing and securities regulation – and those are just the ones that come readily to mind – all at once.
Together, the programs under attack amount to more than a collection of governmental initiatives. Together, they amount to a major set of our civilization’s accomplishments. When we try to monitor the relations between minorities and police, when we protect transgender youth, when we keep acidic coal dust out of our streams or try to slow down the catastrophic rise in the temperature of our air, when we insist that workers be fairly paid, when we reject diversion of public funds to religious purposes, when we try to secure decent housing for our poorest citizens, or keep the investing public safe from fraud, or underwrite the international order by supporting the United Nations, or try to lift public sophistication and discourse through the National Endowments, our actions collectively amount to a summary of many things that define us as a people.
We have enshrined these activities in programs that we shield from political interference by making them statutory, or establishing implementing regulations through a notice-and-comment process that then make them hard to undo. We set our courts to guard these activities through various enforcement mechanisms. And we empower government attorneys and regulators with various degrees of autonomy to prevent interference, including presidential interference, with their actions.
To be sure, nothing can be set in immovable stone. Even the Constitution may be amended. But the administrative state or the deep state, if you will, is not supposed to be easily movable. It is, after all, our civilization we are protecting. Against that, an Electoral College majority that lacks a majority of the electorate to support it and a dominance in Congress made possible only by gerrymandering has but small legitimacy.
Our president and his advisors had better get used to being questioned. It will happen again and again and again, so long as they try to dismantle a government far more representative of popular consensus than any policy-making authority they claim.
Jack L.B. Gohn is a partner with Gohn, Hankey, Stichel and Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.