Like everyone, in the early years of public school, I learned that there are three branches of government and they are equally weighted to balance each other out. In this way, government as a whole is tasked with policing itself. The ultimate check is the voters, who elect the president and the Congress which was originally structured to be bicameral.
The U.S. Constitution, Article 2, Section 1, says the following: “The Executive power shall be vested in a President of the United States.”
Years later I was looking through a manual on the U.S. government as printed by the Government Printing Office. There were still three branches but two-thirds of the chart flowed underneath the executive branch, inclusive of more than 400 agencies that all reported to the president.
Something had obviously gone wrong, which we can discover mostly through the history books.
After the 1880s and following through the Great War, the New Deal, the Second World War, the Great Society, and on through the decades, the executive branch and Congress created agency after agency and put them underneath the executive branch.
They were often called “independent agencies” but there is nothing like that in the words of the U.S. Constitution. It’s a complete invention, taking place about the time that intellectuals decided that the old Constitution was nothing but an anachronism and we needed new tools of science to manage the economy and society.
This lopsided situation has persisted for many generations and with very little challenge. The same system of administrative overlords characterizes most Western governments today. This new system has compromised the whole idea of democracy, under which the people are supposed to control the government. Under the system of administrative despotism, the people are blocked from having control.
No president has seriously taken on these agencies before. Sure, he has appointed heads of them as a matter of protocol but these agency heads have been largely ignored by the staff of tens of thousands in each agency. The bureaucrats have all the institutional knowledge and their day-to-day workflows and the agency head has no real means of changing that.
That has been the situation for the better part of one hundred years. It has kept getting worse and no one has been in a position to do anything about it.
There has always been a mystery surrounding this structure. The president is held responsible by the voters and by law for whatever the agencies do. But whether and to what extent he can actually control them has been uncertain. The employees have deep job protections that build a wall between the president’s wishes and the actions of the bureaucrats.
Most presidents have gone along with this without fuss. Every once in a while, a president tries to do something to bring change to the executive branch he heads but that invariably provokes a wild backlash from the media and the courts. It’s almost always proven to be too much trouble. Even the presidents who have wanted to change things—especially anyone like Ronald Reagan who wanted to cut back some features of bureaucracy—have eventually given up.
Which brings us to Donald Trump. His first term was vexed by people within the executive branch who wanted to throw up roadblocks to his agenda and worked to entangle the administration in endless controversies and distractions. He tried to resist but then in his last year, the bureaucrats pulled the fire alarm on the wall in the form of a pandemic that resulted in calamity. Trump hardly speaks about this but he knows precisely what happened and why.
For example, while Trump was president the last time, the Centers for Disease Control and Prevention decided on its own to change all voting protocols in the United States by urging mail-in ballots which, in those days, might as well have meant mandating them. They never asked anyone in the White House about this, so far as we know. They just did it.
That’s one example of many thousands. As we think back to the first Trump term, it is unclear whether and to what extent the White House truly understood that the government was not in the hands of the elected leader. He might have assumed that it was; e.g. when he sent out a post saying something that everyone would hop to it. It was a naive assumption to say the least. He did not really understand how Washington works.
Four years later, Trump has returned, this time with a very clear agenda to cut the executive branch down to size. He had every intention of abolishing thousands of functions, purging the civil service, abolishing many agencies, and otherwise giving Americans back the freedom that is the promise of this country. People claim that he is behaving like a dictator but it is a strange type who cuts government agencies and powers, which is the upshot of most of his executive orders.
Incredibly, the courts have worked to block the administration from cutting the government down to size. Federal courts have issued restraining orders against hiring freezes, spending freezes, regulatory freezes, and attempts to clean up or otherwise unplug executive agencies. Meanwhile, the president is personally held responsible for everything these agencies do.
The system makes no sense at all. It has nothing to do with what the Constitution maps out because the balance of powers has become wildly distorted over one hundred years. Trump is determined to change that, in effect giving himself and the executive branch less power over the people. This is not authoritarianism but its opposite.
We have now a strange situation in which “liberal” federal court judges, appointed by past presidents, are attempting to restrain the ability of the president to restrain the government itself. The Supreme Court will ultimately decide this and it is anyone’s guess how it will turn out. But if they take the Constitution seriously, they will decide something very sensible: the chief executive should have the ability to act as the executive over executive agencies. What other possible conclusion could they have? It seems tremendously obvious.
Please understand that Trump is the first president since Calvin Coolidge or perhaps Andrew Jackson who has dared assert authority over the executive branch on this scale. He is going after the administrative state to contain it, restrain it, and abolish major parts of it. This is something that many people have demanded for generations, but now is the first time that a president has dared take it on.
That’s how historic this moment is. And that is why the whole of the system is absolutely freaking out about it, with judges suddenly claiming that the president has no legal right to control presidential agencies. It’s probably the case that no president in modern history has truly dared attempt this before. But it is happening now.
Not only that but the majority in Congress absolutely supports Trump in these efforts. This means that this is truly a turning point, a time in which the system is tested concerning its ability to adapt to what voters want. Voters have been very clear that they want their freedom back. It’s the job of the president and Congress to give it to them.
Again: Article 2, Section 1. “The Executive power shall be vested in a President of the United States.”
What if the Supreme Court disagrees and effectively mandates that the president himself acquiesce to being ruled by all these agencies and has no discretion over their activities? I doubt that will happen, but, if it does, that will close the book on American prosperity and freedom.
