Politics & Policy

Trump Wants to Deconstruct the Regulatory State? Good. Here’s How You Start

(Photo: Everett Collection/Dreamstime)
Dismantling the administrative state could be Trump’s most valuable legacy, if it’s done correctly.

On Thursday at CPAC, Trump administration chief strategist Steve Bannon outlined what he called the “three verticals” of the Trump administration, providing in essence a broad sketch of Trumpism. The first he called “national security and sovereignty.” The second was “economic nationalism.” The third was “the deconstruction of the administrative state.”   

While conservatives need to wait and see what the administration means when it talks about national security and sovereignty and should oppose Bernie Sanders–like efforts to restrict the free market, we should fully embrace the administration’s expressed goal of dismantling the administrative state. Done correctly, it could be Trump’s most lasting (and valuable) legacy.

At present, the vast and bloated executive branch — existing through its alphabet soup of agencies such as the EPA, IRS, DOE, ATF, and the like — intrudes into virtually every aspect of American life. It regulates your workplace, your home, your car, and your kids’ school. It’s staffed by legions of bureaucrats who enjoy job security that private-sector employees can only dream of, and it’s granted legal authority by the Supreme Court to interpret its own governing statutes and expand the scope of its own authority. In its own spheres of influence, it often acts as legislator, prosecutor, and judge.

It represents the progressive movement’s great instrument, the conservative movement’s great temptation (if only we could harness that awesome power for conservative ends), and even though it is staffed by many virtuous men and women, it exists as its own ideological organism, often acting not for the public good but for the good of the bureaucracy itself.

While Bannon lauded Trump’s Cabinet picks and executive orders (such as his agency hiring freeze), he knows that they represent mere baby steps in the long march against the administrative state. In the grand scheme of history, executive orders are barely worth noting, and Cabinet choices are here today and gone tomorrow. For generations, Republican presidents have come into office pledging to do something about the bureaucracy, and for generations they’ve made Cabinet picks every bit as good as Trump’s. Yet the bureaucracy still grows.

Why? Because Washington’s mindset never changes, and thus its laws remain the same.

To dismantle the administrative state, the executive and legislative branches will have to act against their perceived political interests. The executive will have to intentionally surrender power, and the legislature will have to accept accountability. In other words, Donald Trump — as a matter of formal policy — will have to abandon an ideology that says he “alone” can fix this nation, and the legislature will have to embrace the reality of casting hard votes, day after day and week after week.

Let’s not forget, the administrative state exists in large part because Congress has intentionally abdicated authority. It passes extraordinarily broad bills that empower executive-branch agencies to write even more law and impose even more restrictions. Congress goes home and says, “We voted for clean air,” while the EPA does all the heavy lifting to define what that really means. Or Congress says, “We voted for banking reform and better markets,” while an array of agencies promulgate rule after ruleaffecting companies from coast to coast. Congress takes credit for its intentions. It blames others for the outcomes.

The GOP is waking up to this reality, and it’s promising to see that the House has already passed the REINS Act. It’s a simple but profoundly important bill. It prohibits any significant new agency regulation from taking effect unless it is ratified by each house of Congress. In other words, the Act will make Congress do its job. Congress will have to vote for the laws that have an impact on our lives for them to become law at all. The lawmaker will actually make law. The Founders would be pleased.

But regulatory reform without civil-service reform is incomplete. Do you wonder why the VA is a bloated, inefficient nightmare? Part of the answer is structure, part is leadership, and part is — sadly — personnel. We like to think of our nation’s public servants as virtuously toiling away for the public good, and many of them do. Many, however, do not, and it’s extraordinarily difficult to hold them accountable.

In some agencies, an employee is more likely to die than to be fired. The understandable desire to protect civil servants from mass political firings has transformed into virtual tenure. The result is a bureaucracy that knows it can essentially wait out administrations it doesn’t like, resist edicts it opposes, and work inefficiently or incompetently without consequence.

It’s time to swing the pendulum back to accountability. Make federal workers at-will employees like most of the rest of the American workforce — protected from unlawful discrimination but not from their own incompetence. Non-policy-making employees should be protected from political reprisals (something the First Amendment already does), but let them join our world, a world where failure has consequences.

Make federal workers at-will employees like most of the rest of the American workforce.

Finally, Congress should legislatively overrule Chevron v. Natural Resources Defense Council, and if Congress is unwilling to do so, conservative litigants should deliberately attack the precedent until it’s reversed. Chevron articulated the current legal standard that requires federal courts to grant deference to agency interpretations of their governing statutes. As a practical matter, it gave agencies enormous authority to make new law, to reverse old law, and to revise the meaning of the statutes they enforce over time. This is how prohibitions against sex discrimination turn into transgender mandates. This is how the EPA regulates ever-greater portions of our national economy.

Courts don’t owe agencies any deference at all. Just as lawmaking is a legislative function, legal interpretation is a judicial function. Let judges judge the law.

Yes, I know that some see these three reforms — the REINS Act, civil-service reform, and overruling Chevron — as small gestures in the face of the government leviathan. Why not abolish the Department of Education? Why not get rid of the IRS? Even better, why not call a Convention of States and limit the scope and authority of the federal government? Yet an administrative state built over generations won’t be deconstructed in one term. Trump’s actions so far are inconsequential. These reforms would represent real change, an actual start to the long, hard journey that ends with restoring federalism and reviving the Founders’ vision of a national government that is focused on preserving liberty, not regulating it out of existence.


The Latest