The Deep State

On June 28 the Supreme Court reversed a 40-year-old Court decision, making it more difficult for the federal government to enforce regulations protecting the environment, public health, workplace safety, and consumers. The 6 to 3 Court ruling was widely considered a victory for corporations and conservative political interests that have worked for decades to weaken government regulations. The case has been called “the conservative-dominated court’s clearest and boldest repudiation yet of what critics of regulation call the administrative state.” [link below]

The “administrative state” is a term used to refer to the perceived power of government agencies to write, judge, and enforce their own laws. However, U.S. government agencies do not have the power to write or judge laws. That power to write laws is reserved for the U.S. Congress. The federal courts, including the Supreme Court, have the power to judge the legality of laws written by Congress. The powers of government agencies are limited to writing and enforcing the rules and regulations to implement laws written by Congress. Congress attempts to spell out the intent or purpose of laws in the text of the bills. Government agencies then translate the congressional intent into enforceable rules and regulations.

The term “deep state” was first used in the 1990s to refer to the Turkish government. The government was allegedly dominated by a coalition of high-level government administrators, the judiciary, and the mafia. Republicans began using the term, deep state, during Obama’s second term when he started using “executive orders” to accomplish some of his administrative agenda. Executive orders are appropriate in cases where congressional legislation gives the responsibility for implementation to the President rather than nonpolitical administrators. “Executive actions” are taken by the President without congressional authorization.

Donald Trump started calling the “administrative state” the "deep state" after unelected, nonpartisan government administrators refused to write or rewrite government rules and regulations to accommodate his administrative agenda. Trump also frequently criticized those in nonpolitical positions in the Department of Justice and FBI for failing or refusing to do or say what he wanted them to do or say. He has frequently expressed disdain for the unelected, nonpolitical administrators and civil service employees who have the power to write and enforce the rules and regulations necessary to implement legislation.

For example, when USDA’s Economic Research Service (ERS) scientists failed to provide economic analyses supporting Trump’s trade war with China, he ordered the Secretary of Agriculture, a political appointee, to move the entire ERS to Kansas City. The ERS lost about half of its civil service employees because they were unwilling or unable to make the move. The new Kansas City workforce is also much less racially and ethnically diverse. The move was obviously meant to send a chilling message to those in all government agencies. The President may not be able to fire you, but he can move your job halfway across the country.

The Republican agenda in Project 2025 calls for eliminating the nonpartisan civil service and replacing long-time civil service employees with people loyal to the President. Project 2025 would also make the Department of Justice and the Department of Defense directly responsible to the President.

This would allow the President to appoint administrators who will write and enforce rules and regulations to serve his purpose, rather than the purposes intended by Congress. Regulators would also interpret and enforce existing laws as the President directs, or risk being fired. This would violate the separation of powers in the U.S. Constitution by giving the President the power to distort or ignore the intent of Congress. Given their recent rulings, it is unclear whether the current U.S. Supreme Court would rule to uphold the constitutional separation of powers or grant still more powers to the President.

During seven years of my tenure at the University of Missouri, I received half of my salary from USDA for work on special projects related to sustainable agriculture. I frequently traveled to Washington DC and have at least some first-hand knowledge of how the unelected, nonpartisan, civil service, “the administrative state,” works.

I found the civil service professionals in USDA to be at least as competent as the faculty members I worked with in state universities and people I had worked with in private industry. Some were dedicated public servants and brilliant thinkers, and some were not, as in most other professional organizations. The support personnel varied in competence, as is true for universities and private businesses but was more racially and ethnically diverse than most organizations. The USDA is a big bureaucratic organization and suffers from many of the same problems of big for-profit corporations—probably no more or no less.

The people I worked with tried their best to carry out the intention of the congressional legislation that supported their work, regardless of whether the President and Secretary of Agriculture were Democrats or Republicans. The first USDA sustainable agriculture program was signed into law in 1985 during the Reagan administration, received its first funding in 1989 during the first Bush administration, and has continued to grow under the Clinton, second Bush, Obama, Trump, and Biden administrations.

The same legislative definitions and language have continued to guide the implementation of the legislation, including rules and regulations regarding how the funds are to be used. The work may have received more or less attention and funding during one administration than another. Still, the civil services professionals I worked with worked just as hard during one administration as another. They were working for the American people, as directed by Congress, not for the Secretary of Agriculture or the President.         

There is a “deep state” in Washington DC, but is not the nonpartisan civil service, or the so-called administrative state. As in Turkey during the 1990s, a coalition of high-level, politically-appointed administrators in various departments and agencies works in collaboration with economically and politically powerful corporations and highly partisan legislators to thwart the will of the people whenever it conflicts with their agenda—such as Project 2025.

Whenever they fail to convince Congress to enact the laws they want, they attempt to get their desired outcomes by controlling the administrative rule-making and enforcement process. When they succeed, it is called “regulatory capture,” meaning entire regulatory agencies are dominated by the interests they are supposed to regulate, not by the public interest.

The primary defense against regulatory capture has been the civil service, where dedicated civil service professionals have risked ostracization and demotion, or job relocation, rather than compromise their responsibilities to the American people. Some nonpartisan administrators have bent to the political pressures, as in the case of regulatory capture, but the civil service system overall remains unbroken.

The people I worked with in USDA worked for the people of the U.S., not for their politically appointed administrators, the Secretary of Agriculture, or the President at the time. Their jobs continued from administration to administration, regardless of which party was in power. The real “deep state” is striving to eliminate these people who prioritize public service over politics. By labeling civil service workers as the “deep state,” they hope to divert public attention from themselves—the real threat to American democracy.

Do you want to get rid of the people who keep presidents from doing whatever they want to do, regardless of the laws passed by Congress or the will of the American people? Then vote for the candidate who opposes the independence of civil service professionals who are empowered to make and enforce the laws, rules, and regulations needed to implement congressional legislation.

The U.S. government departments and agencies are big bureaucratic organizations that need reorganization and improvement. However, eliminating the civil service is not the way to improve them. As with government in general, we don’t need to eliminate it, we need to improve it.

John Ikerd 

Quote from: Mark Sherman, June 28, 2024, The Supreme Court weakens federal regulators, overturning decades-old Chevron decision, AP News, https://apnews.com/.../supreme-court-chevron-regulations...