Casus Belli: President Trump Declares War on the Executive Branch

While Congress, pundits, and the public were occupied with discussing the new Congressional Budget Office report on Paul Ryan’s Republican plan to repeal and replace Obamacare, Donald Trump signed a new executive order with little fanfare. You should read it. You should really read it. It’s short and all too simple.

Since taking office, Trump and his staff have found themselves at odds with the branch he purports to lead. Leaks and resistance have been an everyday occurrence. His philosophical advisor Steve Bannon has stated publicly that his agenda is focused on deconstructing the administrative state: the network of agencies that enable the executive branch to execute policy as empowered by Congress. Trump is his ally and civil servants his opposition. Unlike appointed officials, they can’t simply be fired like the US attorneys of the Justice Department. They are protected by civil service law and unions including the American Federation of Government Employees (AFGE).

If there’s anything that Trump hates, it’s having his hands tied and not being in control. He’s only recently come to realize that the President of the United States is a coequal COO position in an organization without a CEO but with a General Counsel (the Supreme Court), a CFO (Congress), and a Board of Directors (Voters). He didn’t sign up for this so he is trying to change the game. The only way he can do this is to remake the executive branch in his own image but first he needs to go to war with it.

Storm Clouds on the Horizon

The signs of the coming war have been lying around for anyone to see. Trump’s leaked budget proposals suggest sharp cuts in most agencies not related to defense. Trump has set up a legal team to attack the regulatory powers of the executive branch. He has dismissed sitting appointed officials without even suggesting replacements except for the top most positions. Now he is blandly initiating a top to bottom review of government agencies under cover of uproar. The banality of this executive order hides its breadth. Let’s dissect it:

Sec 1: Trump orders Director of the Office of Management and Budget “to propose a plan to reorganize governmental functions and eliminate unnecessary agencies (as defined in section 551(1) of title 5, United States Code), components of agencies, and agency programs.” He’s ordering a review of the whole executive branch.

Sec 2: Trump orders the reorganization and elimination of agencies as directed by the heads of those agencies. In the case of the departments, that’s the cabinet secretaries that who seem to have antagonistic relationships with the agencies they lead.

  • Each agency head has up to 180 days (6 months) to come up with a plan and submit it to the OMB Director.
  • The OMB Director publishes a call for public suggestions in the Federal Register. Note that public comments don’t have to be accepted or even hold influence (see below).
  • Within 180 days (6 months) of the close of public comments, the OMB Director submits a reorganization plan to the President.
  • The criteria for reorganization are:
  1. Should a function be devolved from the federal government to state or local government or the private sector?
  2. Is a program redundant?
  3. Does the cost of a program justify the public benefit?
  4. Cost of closure including “the equities of affected staff.”
  • Agency heads and (unidentified) outside relevant experts will be consulted e.g. “Top Men”

Sec 3: The reorganization can’t violate the law.

Trump has demonstrated breathtaking ignorance of the Federal government so far in his term as President. Acquiescing to his ill-informed wishes on a fundamental reorganization of the Federal government is frightening

The Beacons Are Lit. The Executive Branch Calls for Aid. Will We Answer?

Trump and his team have done a fine job of keeping this strategy beneath the radar and defeating potential obstacles to his reorganization plan. Congressional Republicans are at war with themselves over Obamacare repeal and replace. It is no surprise that Trump is keeping his distance. Should their plans fail or succeed, Congress will be discredited and unable to mount any effective opposition to his plans through legislation by passing laws that provide Congressional oversight or immunize agencies from reorganization. Congressional leaders need to be made aware of this coming storm and prepare for it with legislation and oversight.

The judicial branch relies on the public to bring forth cases to hear. This is where the public comes in. While the executive order allows for public comment, it does not require the reorganization plan to adhere to it. It does however set criteria for reorganization and these criteria are the weakness of Trump’s plan. People affected by the reorganization will need to bring lawsuits demanding proof that the criteria are met and require the White House to provide evidence to demonstrate that it is following its own orders.

Do the Federal government and the executive branch have problems? Yes.

Is a reorganization in order? Perhaps.

Do we want to rely on the judgement of Donald Trump for this? Based on what we’ve seen so far, absolutely not. Nothing in Trump’s life suggests that he is capable of successfully reorganizing an organization that is at least an order of magnitude larger than the largest corporation in the world. If anything, his history demonstrates that his reorganizations are speculative, impulsive, and bankruptcy prone constituting and unacceptable risk to the country.

If nothing you have seen so far has mobilized you to action so far, the prospect of an inept remaking of the federal government should.