How Active Was Obama’s “Deep State”?

Amidst growing uncertainty around what the Trump Administration can or cannot do, the notion of a deep state has appeared more frequently in coverage and analysis of American politics. Perhaps it is only sensible that, in an age where Alex Jones is advising the president, that the idea of a shadowy, un-elected group of officials would become a popular heuristic for viewing power.

I first came across the idea of the deep state in an American context in Mike Lofgren’s book of the same name (WorldCat, Amazon). Though there is something of a left-wing edge to his critique, at least in terms of the role of corporations, conservatives often strike a similar posture when describing bureaucrats who create regulations and red tape at the expense of private interests.

To hear conservatives tell it, President Obama’s use of executive authority was an unprecedented affront to constitutional principles. For Obama’s supporters, executive authority was a necessary response to GOP obstruction and served as the only way for liberals to enact their agenda.

But just how active was the executive branch in creating regulations?

Rather than focus on individual executive orders or regulations, I wanted to look at overall rule-making by executive agencies. While this doesn’t capture all aspects of executive authority, it does show how aggressive agencies were as a whole in using their regulatory authority over the course of Obama’s presidency.

I used the Unified Agenda to arrive at the data shown below. When an agency wishes to make changes to rules and regulations, either to create new ones or get rid of old ones, they submit it as part of their agenda for the coming year. The Unified Agenda is a collection of all proposed regulatory actions for a given period for every agency in the government.

Received wisdom would suggest that as Republican opposition became more resolute, the proportion of rules proposed by executive agencies would go up. In fact, we see the exact opposite was the case:

Since only one Unified Agenda was published in 2012, it makes up a particularly small part of the data used here.

Looking at the overall rule counts in each Unified Agenda also bears out this trend:

I have contacted the Regulatory Information Service Center to ask why only one Unified Agenda was published in 2012 and will update this post if/when I receive a response.

This is obviously not a perfect metric, but it does show that executive agencies overall were proposing fewer, not more, regulatory changes as President Obama’s presidency neared its end.

This is inconvenient for mainstream narratives on both the left and right. It runs counter to the view that Obama’s presidency was an unending and unprecedented embrace of regulatory power. It also suggests that the liberal narrative of the Obama Administration becoming more aggressive in pursuing its agenda as GOP became more strident in its obstruction might be a case of wishful thinking.

The risk of relying too heavily on the concept of a “deep state” to understand politics is that it ignores politics as a collective enterprise. It encourages people to view their government as a collection of shadowy acronyms as unaccountable as they are powerful. If you believe that all the real decisions are being made in a CIA conference room or an EPA meeting, what is the point of organizing calling campaigns? Or protesting? Or attending a town hall?

Just because an agency head is not elected does not mean they rule by fiat. Agencies are required by law to submit proposed regulations for public comment and they are required to respond to comments when drafting the final regulation.

The role of public comment on regulations is almost never mentioned in discussions of executive authority. This plays into politics as a spectator sport, a spectacle to be observed and commented upon but over which no private citizen can be expected to wield any influence. Regulations are not the only kind of executive power, but they are probably among the least understood. We can influence regulations, if not individually then collectively. However, current coverage of executive agencies does little to disabuse people of the notion that the federal bureaucracy is a wholly unaccountable “deep state.”

You can see the data I used for the two charts above and other data from the Unified Agenda here.