Administrative Politics

What Would a Second Trump Term Mean for the Administrative State?

Trump’s Latest Executive Order Has Set the Stage to Destroy Civil Service as We Know It

During this 2016 campaign, candidate Donald Trump promised to “deconstruct the administrative state.” In our new book, Directing the Whirlwind: The Trump Presidency and the Deconstruction of the Administrative State, we explore whether President Trump has succeeded.

While arguably falling short in the exercise of some of the more conventional tools of presidential control, the rhetorical assaults and his recasting of the federal bureaucracy as a “deep state” — a shadowy bastion of careerists obstructing the president, and therefore the popular will — has inflicted a degree of damage on the functioning of the federal bureaucracy that is alarming in both its scope and speed.

The manifestations of the presidential knee-capping of the bureaucracy (too extensive to detail fully in our book) have been everywhere, in the failed federal response to the pandemic, in the assault on the United States Postal Service, and in the escalation of tension with the states (particularly Democratic leaning ones) over pandemic-related economic shutdowns and the racial protests. When the American public and the states needed a coordinated federal response the most, the response it received was erratic or dysfunctional.

Post-acquittal, Trump was even more emboldened in his crusade against career professionals who are deemed as disloyal to the president and his agenda. The firing of key inspectors general, assaults on agency experts, and the hiring of loyalty-patrolling personnel chiefs, and all signaled that a second-term purge of the bureaucratic ranks was in the making.

On October 20, Trump signed Executive Order 13957 which authorizes the reclassification of agency positions that are “confidential, policy-determining, policy-making, or policy-advocating” in nature to a new Schedule F category excepted from civil service protection. The reclassification strips away competitive hiring process for filling such positions and means such employees may be fired by the president at will. The directive requires agency heads to complete their preliminary review and recommendations for the reclassification by January 19. The guidelines for so doing are “not determinative,” leaving final determination to the Office of Personnel Management (OPM) and requiring written explanation to accompany the reclassification. The presidential directive builds on earlier executive orders exempting administrative law judges from competitive service (EO 138483), revising the cost-benefit analysis of regulatory measures (EO 13777), and authorizing the Office of Management and Budget (OMB) to develop a reorganization plan (EO 13781), all aimed at increasing directed presidential control.

For anyone interested in effective government, this latest development is particularly alarming. The elimination of protection in the hiring and firing of agency personnel is antithetical to the long history of neutral competence established by the Pendleton Act of 1883, harkening back to a spoils system which would allow the president to condition federal employment upon loyalty to his ideological agenda — or personal fealty to the president himself.

The order also signifies a frontal assault on the Administrative Procedure Act (APA) of 1946 that establishes the democratic processes under which federal agencies promulgate rules and regulation. As we address in Directing the Whirlwind, the APA has stymied Trump’s deregulation efforts as his administration’s failures to comply with its procedural requirements has resulted in losing record in the courts. The platform of the 2020 Republican National Convention (RNC), endorsed an overhaul of the APA “so that President Trump can thoroughly ‘drain the swamp.’”

For those worried about the democracy, control of the bureaucracy is a precondition for the rise of authoritarian power. The timeline and haste of implementation of Executive Order 13957, means that Trump can move quickly should he be reelected. It also means that his agenda of deconstruction may extend forward even in the event of his loss, with reclassifications potentially impairing the transition and response of a Biden Administration that will be in full triage mode on a multiplicity of policy fronts. We also should not expect respite from the judiciary as Trump has dramatically increased the number of anti-administrativist judges staffing the federal courts and rulings like Seila Law v. Consumer Financial Protection Bureau (2020) have recently affirmed the President’s executive power to supervise, or remove independent agency heads.

Much of Trump’s agenda of administrative deconstruction has taken place beneath the public radar or has been missed (or dismissed) as normal administrative politics. But the practical impact of Trump’s war on the federal government is potentially devastating in its consequences. The purge (or exodus) of career professionals and the rejection of evidence-based policy making expertise is detrimental to good policy making and politicizes the agencies on which we rely for environmental, health, and safety regulations and the delivery of our most fundamental services.

We ended Directing the Whirlwind with a prediction that the administrative state might not survive a second dose of deconstruction — Trump’s most recent executive order demonstrates that dangers that await. If Trump is defeated on November 3rd, Trumpism will live on in the judiciary and in the administrative state.

Lisa K. Parshall is Professor of Political Science at Daemen College in Amherst, New York. She is the president of the Northeastern Political Science Association and the author of Reforming the Presidential Nominating Process: Front-Loading’s Consequences and the National Primary Solution.

Jim Twombly is Professor of Political Science at Elmira College in Elmira, New York. He is the vice president of the New York State Political Science Association and the author of The Progression of the American Presidency and American Pop Culture: Sex, Power, and Cover-ups.