The Supreme Court’s recent ruling in the Loper Bright case, overturning the doctrine of “Chevron deference,” is poised to shatter America’s bureaucracy. It will allow federal judges to void any regulation they do not believe Congress expressly gave agencies power to create.
With the federal bureaucracy already on life support after this explosive decision, we now face the very real possibility that a second term for former President Donald Trump will break the back of the bureaucracy, finishing off the institutional apparatus that is our modern state. The result may well be championed by conservatives, but the quality of life for Americans would be substantially worse, should it come to pass.
America’s administrative state developed as a result of purposeful and deliberative congressional action. Congress created agencies in the executive branch which they then imbued with lawmaking authority. The legislative process in Congress is incredibly slow and difficult, particularly in times of heightened partisanship. In contrast, the regulatory procedures outlined in the Administrative Procedures Act is substantially swifter and simpler. In an era when Congress can barely agree to pay our debt on time, expecting it to be able to work out a substantial number of complex regulatory issues is a pipe dream.
Another reason Congress built up the bureaucracy is that it understood that its membership was not composed of subject-matter experts in highly technical fields, but of those that were laymen to the myriad modern issues that required regulation. Building a bureaucracy that is staffed with these sorts of experts is an elegant solution to this problem.
A key feature of America’s bureaucracy is that, unlike private-sector employees, those with federal government jobs are notoriously difficult to fire. This is largely thanks to a 19th-century act of Congress that modernized the bureaucracy, doing away with the “spoils system” that had dominated federal hiring up until that time. Before this act was passed, federal jobs were usually handed out to lackeys and loyalists who were hired because of their political connections, not merit.
No longer built off a system of patronage, the federal bureaucracy has been allowed to flourish over the last several decades into what could fairly be called America’s fourth and most functional branch of government. However, because individual workers are so difficult to fire, presidents have oftentimes found managing the bureaucracy to be about as easy to accomplish as herding cats.
As such, it admittedly makes some sense when this quasi-fourth branch of government is referred to as the “deep state.” The people running these agencies on a daily basis tend to stick around through several presidential administrations over their careers and have the ability to frustrate an administration’s agenda with little worry of recourse.
The organizational complexity of the bureaucracy is the chief reason why political scientists often refer to the executive branch as the “managerial presidency” — much of an administration’s success is determined by the president’s ability to get this vast apparatus to carry out his agenda. President Harry Truman famously illustrated how frustrating this could be when speaking about incoming president Gen. Dwight Eisenhower, whose experience was in the military, where orders are followed without question. Truman quipped, “Poor Ike. He’ll say do this and do that and nothing at all will happen.”
Trump was himself also notoriously unable to bend the bureaucracy to his will, which often prevented him from effectively moving policy in as conservative a direction as he desired. Should he get a second term, Trump will look to effectuate the old adage “that which does not bend will break.” To obliterate the resistance that plagued him in the past, his plan is to issue an executive order reclassifying the vast majority of federal employees in order to make it easy to fire them. Once they are gone, he will then look to have them replaced with loyalists who will unquestionably carry out his orders.
A return to the spoils system would mean America’s professionalized bureaucracy would no longer staffed with individuals who have spent their lifetime studying incredibly narrow topics, like whether a yeast derivative is a drug or dietary supplement. Instead, it will be headed by individuals looking to effectuate a political agenda, which in the case of the Republican Party is to abolish as many regulations as is possible under most all circumstances. The lack of regulation could well help businesses improve their bottom lines, but it will come at the cost of the health and safety of the average American.
Nicholas B. Creel is an associate professor of Business Law at Georgia College and State University. The views expressed here do not necessarily reflect those of his employer or any other organization.