As Donald Trump’s attack on Washington’s bureaucratic deep state rolls on, Trump Derangement Syndrome has risen to epidemic proportions, not only among federal bureaucrats but also among power-hungry billionaires and participants in institutions operating outside the bureaucracy, what might be called the shadow state, which for a very long time has been the driving force behind the deep state’s wreaking chaos and destruction on all American institutions and our culture more generally so it can “build back better” on its terms, unencumbered by the Constitution.
Since the beginning of Donald Trump’s assault on corruption and theft inside Washington’s bureaucratic behemoth, federal courts have tried to use sweeping judicial powers, employing temporary restraining orders and injunctions to throttle the president on the pretext of asserting their own judicial powers to check what they claim to be an overreaching president pursuing dictatorial executive powers.
The Fourth Branch of Government – A Constitutional Chimera
The courts’ complaint about Trump springs from the president’s alleged “overreaching” to wield “dictatorial” power over the bureaucracy, which has become an unconstitutional fourth branch of government, giving rise to the concept of the Administrative State – a constitutional chimera. The Administrative State comprises a complex web of governance where power is both centralized (in the bureaucracy) and dispersed (among individual bureaucratic agencies). It is a sprawling complex of government agencies and bureaucracies, led by unelected administrators, that have been delegated by Congress and the courts the authority, means, and responsibility for implementing (through rule-making, a legislative function), administering, and enforcing (executive functions), and frequently adjudicating (a judicial function) public policy at various levels of government.
In practice, this sprawling administrative state within a state is effectively immune to serious oversight by the Congress. It is a constitutional hybrid never intended by the Founding Fathers; it lives within the executive branch but is not of the executive branch; it transcends any one of the three constitutional branches of government through its cross-breeding.
The courts justify their claim that they are checking an unrestrained chief executive officer who’s usurping the powers of the bureaucracy on the grounds that the bureaucracy is not the creation of the executive but rather the offspring of an illicit union of the legislative and judicial branches and consequently is unmanageable by and unaccountable to the chief executive. The courts are essentially saying to the president, “You ain’t his daddy, and you don’t have parental rights.” Hence, any action by the president to rein in the administrative state is considered overreach, an alleged usurpation of both legislative and judicial powers and prerogatives.
The administrative state has its roots in the late 19th and early 20th centuries when Congress began delegating significant authority to administrative agencies through legislation (see e.g., the Interstate Commerce Act of 1887, which created the Interstate Commerce Commission, and earlier the Pendleton Civil Service Reform Act of 1883, which laid the groundwork for an independent bureaucracy). Congress further created numerous independent agencies and commissions that were specifically designed to operate independently from direct presidential control, usually having fixed terms for commissioners and politicized by requiring bipartisan representation on the commission (see e.g., the Federal Reserve (1913), the Federal Trade Commission (1914), and the Securities and Exchange Commission (1934), among others).
In the process, the courts turned a blind eye to the unconstitutional nature of these institutional chimeras, or they concocted federal jurisprudence out of thin air to justify their existence. By doing so, Congress and the courts created a monster that soon rose above the law and beyond the Constitution, outside the reach of the president and consequently unhobbled by the Founding Fathers’ elegant system of checks and balances. Through judicial review and deference, the courts, particularly the Supreme Court, played a crucial role in shaping the powers of the administrative state. Through doctrines like “Chevron deference” (established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 1984), courts deferred to agencies’ interpretations of statutes they administer, provided the interpretation is “reasonable.” This ruling significantly expanded agencies’ abilities to legislate, regulate and adjudicate without ongoing judicial or legislative restraint and oversight. By providing protection of “agency autonomy” [see e.g., Humphrey's Executor v. United States (1935)], the Supreme Court affirmed the constitutionality of limiting presidential removal power over certain officials of independent agencies, thus sapping from the president another fundamental executive prerogative by embedding these unconstitutional hybrids in the system under the color of law and freeing them from presidential management and control.
While the administrative state was expanding, the narrative of an “imperial presidency” emerged, particularly through the critique of scholars like Arthur Schlesinger Jr. in his 1973 book of the same name. This narrative was based on partisan observations of presidents like Franklin D. Roosevelt and Lyndon B. Johnson, who appeared to wield significant control over federal policy through their administrative appointments and executive actions. However, this control was more perceived than real, exaggerated by entrenched, power-grabbing bureaucrats sympathetic to these presidents’ agendas to expand the size and scope of government, and hence bureaucrats’ power, who tended not to come into conflict with these expansionist presidents. Historically, the illusion of an imperial presidency was enhanced during periods when bureaucratic and presidential interests and aspirations were in sync. What academics like Schlesinger were observing from their ivory towers wasn’t an “imperial presidency;” it was an “imperious bureaucracy.”
Shown in this historical light, the recent spasm of judicial activism to further hobble the president from exercising his constitutional duties as chief executive and commander in chief can be understood, in part, as an opportunistic backlash by disgruntled lower courts to the Supreme Court’s June 2024 decision in Loper Bright Enterprises v. Raimondo overturning the Chevron deference doctrine, which was equally as repellent to activist judges embedded throughout the federal judiciary as the June, 2022 Supreme Court decision in Dobbs v. Jackson Women's Health Organization overturning Roe v. Wade was to rabid pro-abortion judges and bureaucrats.
Recently, Elon Musk put this matter in perspective when he spoke to the press from the Oval Office alongside President Trump:
"If there’s not a good feedback loop from the people to the government, and if you have rule of the bureaucrat, or if the bureaucracy is in charge, then what meaning does democracy actually have? If the people cannot vote and have their will be decided by their elected representatives in the form of the president and the Senate and the House, then we don’t live in a democracy. We live in a bureaucracy."
"So it’s incredibly important that we close that feedback loop. We fix that feedback loop and that the public, the public's elected representatives, the president, the House and the Senate decide what happens as opposed to a large unelected bureaucracy. You can’t have an autonomous federal bureaucracy. You have to have one that is responsive to the people. That's the whole point of a democracy. If you asked – looked at the Founders today and said, ‘what do you think of the way things have turned out?’ Well… what we have is this unelected, fourth unconstitutional branch of government, which is the bureaucracy, which has, in a lot of ways, currently more power than any elected representative."
This current conflict eventually will be resolved in the political arena, through the rough-and-tumble struggle among the three branches of government, both inside and outside the courts. For example, the Trump administration currently is using the courts to fight back, challenging lower court rulings that further encroach on presidential powers.
But the actions taken by Trump outside the courts may be even more significant. On February 18, Trump signed an executive order aimed at upending decades of agency independence. This action is rooted in a strict reading of Article II, Section 1 of the Constitution. The EO asserts that Article II vests all executive power in the President, requiring that all executive branch officials, including those in independent agencies, be subject to presidential supervision. The breadth of this EO is enormous, requiring Executive Office review of regulatory actions before they are published in the Federal Register; requiring all agencies to appoint White House liaisons to ensure coordination with the chief executive; providing OMB budget oversight of all agencies, including all independent agencies to ensure their actions are consistent with the president’s priorities; and providing that no executive branch employee may advance a legal interpretation contradicting the president’s or attorney general’s opinion.
The question is, will Trump succeed in wrestling back from the Congress and the courts presidential powers they usurped over the years; and will this restoration of presidential powers prompt Congress itself to reclaim its full legislative and oversight powers that it surrendered to the bureaucratic blob it created? Will this recent flare-up in disputes over the distribution of power under the Constitution restore some semblance of balance to separation of powers among the three – not four – constitutional branches, and in the process begin to restore the Old Republic the Founding Fathers gave us to keep, if we could.
