Amidst claims of a mythical ‘deep state’ Congress should reclaim its powers

The BDN Opinion section operates independently and does not set news policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com
Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
The “deep state” is neither deep nor a state.
Some say let’s “drain the swamp” to wash the mythical “deep state” down some cosmic hole.
If they succeed, what’s left? Probably a smaller swamp. And a one-person government operating openly to serve the purposes of that one person.
That’s what people mean when they warn about Donald Trump being a threat to democracy. The American form of democracy is really a myth in his view, and the country is controlled by a hidden alliance between anonymous government officials and outside interests pursuing their own agendas.
The “deep state” conspiracy lacks evidence and is designed to stir what a renegade journalist once called “fear and loathing on the campaign trail.” This column now reveals the people behind the deep state: two U.S. presidents. Ever hear of Chester Arthur? Or Grover Cleveland?
In 1871, President Arthur, a Republican, took on the so-called “spoils system,” derived from the saying, “to the victor go the spoils” — if you win the election, you can shape the government to your will. Too bad for people who don’t agree with you; they lose the protection of a government meant to serve all. It was essentially a form of legal corruption.
Arthur launched the civil service, a continuing corps of officials who maintain basic standards and operate essential programs, regardless of who is president. The civil service, composed of government professionals rather than political loyalists, would allegedly become the in-house half of the deep state.
A few years later, President Cleveland, a Democrat, approved the first independent federal agency, designed to regulate interstate railroads. Independent agencies, run by expert panels with both parties represented, came to control complex matters beyond the ability of Congress to monitor successfully. These experts cannot be removed for purely political reasons.
Trump doesn’t like the civil service or independent agencies.
He seems to believe that the supposedly neutral civil service harbors people who oppose his policies and work to undermine his efforts. His suspicion of barely hidden partisanship may be fueled by the heavily Democratic vote in Washington, D.C.
The simple solution would be to strip people of civil service protection and replace them with loyal followers of White House policy rather than congressional intent. That would expand presidential power. Each election could result in sweeping changes in government with little consistency or reliability over the years.
As for independent agencies, a president might be able to overrule or influence their decisions. Presidential power would come to dominate independent agencies, which in reality exercise delegated legislative power. The shift of power from Congress to the president would continue.
But, even more significant, is the assault on independent agencies by a conservative U.S. Supreme Court, dominated by Trump’s appointees. The court is now severely weakening independent bodies, and this term will consider a case that could result in ending their regulatory authority.
Previously, the court had allowed expert agencies to interpret the details of the laws under which Congress assigned them regulatory responsibilities. The court has now decided that the agencies should not have such powers. Who can determine the meaning of the regulatory laws? Why, it’s the courts.
The problem is that the courts lack expertise. In a recent majority decision, one Supreme Court justice mistook nitrous oxide for nitrogen oxide, substituting laughing gas for a dangerous chemical.
Aside from overruling the expertise of independent agencies, whose knowledge is beyond the abilities of the courts, the Supreme Court will now consider whether their ability to punish violators is beyond what the Constitution allows. It could decide that such authority rests only with the president and the courts.
These attacks on neutral and independent components of the federal government are an attempt to strip Congress of the lawmaking power given to it by the Constitution. The assault has been made possible by Congress itself shedding its authority, dodging major decisions and leaving them to others.
The elections will give people the chance to decide if they want a smaller government that offers them less protection and less regulation or the current system, as imperfect as it is. Whatever the outcome, popular disapproval of Congress sends the message that the system needs reform.
The most obvious improvement would be for the unpopular Congress to begin doing its job. Many judgments now left to civil servants (those dreaded “bureaucrats”) and independent agencies could be eliminated by more simple and direct legislation, denying the special interests’ deals by not allowing for exceptions or special situations.
That could help ensure that the unseen parts of the deep state — corporate lobbyists working over regulators outside of the public view — would leave them only the public proceedings of Congress to press their demands.
An effective Congress, passing no-loophole laws, would be better than the personal rule of any president abusing their powers.