The following are remarks prepared for a panel, “Donald Trump and the Future of Democracy,” at the Eastern meetings of the American Philosophical Association, January 2018. This is Part 5:
President Donald J. Trump has made remarkable progress reining in the administrative state. The progressives' march away from democracy toward a bureaucratic state, however, could resume under a different president. I have a few suggestions for draining the swamp more permanently.
I have elsewhere proposed using the progressive's tactic of trust-busting, breaking up large agencies and moving most agencies out of Washington:
"The Department of Energy, for example, funds research into energy production and climate change, oversees programs for science education, runs national laboratories, issues loans to clean energy initiatives, and manages the nation's nuclear stockpiles. Why are those activities, assuming they ought to exist at all, part of the same department?"
We also need to amend or replace the Administrative Procedures Act of June 11, 1946 to require that:
- Formal rulemaking procedures replace informal procedures in a wide range of cases.
- For each rulemaking agency there is an equal and opposite "devil's advocate"agency that evaluates evidence and public comments independently, with the job of presenting arguments against rules and doing independent cost assessments.
- For administrative law judges be appointed by the president or a relevant Cabinet member.
- All major rules require congressional approval within sixty days, or they are null and void, and cannot be proposed again for at least two years.
- "Sue and settle" processes be effectively banned, by requiring congressional ratification of their outcomes.
- Guidelines, interpretations, and letters that have the practical effect of rulemaking be subject to greater public involvement, at least as rigorous as current informal procedures, and that they too require adversarial action by a "devil's advocate" agency.
Additionally, we need need civil service reform, to make it easier to discipline or fire employees. Trump has begun that process: For those inside the bureaucracy, a new Trump-era focus on accountability has meant working under greater oversight—and in some cases, fear of reprisals. Agencies have told employees that they should no longer count on getting glowing reviews in their performance appraisals, according to staff in multiple offices, as has been the case for years.
Much more needs to be done.
The law should also impose heavy penalties on those who leak information illegally or use their positions to discriminate on the basis of political viewpoints. "Burrowing," a political appointee's conversion to a regular civil service position, should be against the law.
Tying federal salaries and benefits to salaries and benefits for comparable positions in the private sector—which are 15 and 61 percent lower, respectively—and placing term limits on civil service positions might help to prevent an entrenched bureaucracy of the kind we now experience.
The use of outside contractors to sidestep budget and personnel limits should be restricted. Glenn Reynolds suggests a revolving door surtax of at least 50 percent for any earnings in excess of their former government salary for anyone leaving federal service.
Trump's attack on the administrative state has a remarkable feature: it limits the power of the executive branch and increases the power of the legislative and judicial branches. Josh Blackman observes, "If Congress passes more precise statues, the president has less discretion. If federal agencies comply with the cumbersome regulatory process, the president has less latitude. If judges become more engaged and scrutinize federal regulations, the president receives less deference. Each of these actions would weaken the White House but strengthen the rule of law."
That is precisely Trump's goal. James Madison wrote in Federalist 47, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."
The administrative state manifests exactly such an accumulation of powers. Donald Trump, far from being a tyrant, is tyranny's greatest opponent.
Daniel Bonevac is Professor of Philosophy at the University of Texas at Austin. Author of five books, most recently, "Ideas of the Twentieth Century," and editor or co-editor of four others, he has published over 60 articles in professional journals. He has also written for The Washington Post, The Critique, and The American Spectator. His massively open online course, "Ideas of the Twentieth Century," has enrolled over 50,000 students. He is co-founder of BriefLogic, a marketing communication firm. He is also a contemporary Christian musician and songwriter; you can hear his music on his daughter’s debut album, "Transfiguration." To read more of his reports — Click Here Now.
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