Trump, Bannon & ‘deconstructing the administrative state’

When Donald Trump’s top two White House officials, Steve Bannon and Reince Priebus, appeared together at the American Conservative Union’s CPAC conference the other day, Bannon (the big ideas member of the duo) outlined the top three priorities or “lines of work” of the administration:

The first is kind of national security and sovereignty and that’s your intelligence, the Defense Department, Homeland Security. The second line of work is what I refer to as economic nationalism and that is Wilbur Ross at Commerce, Steven Mnuchin at Treasury, Lighthizer at — at Trade, Peter Navarro, Stephen Miller, these people that are rethinking how we’re gonna reconstruct the — our trade arrangements around the world. The third, broadly, line of work is what is deconstruction of the administrative state. [Emphases added]

On the third line of work, which is the subject of this post, Bannon clarified that he meant regulations created by government agencies on behalf of a “progressive Left” that is unable to pass legislation. Bannon referred primarily to business regulations, but Trump’s latest Executive Order initiates a review of regulation across all the functions of government.

What does such radical-sounding language mean? Is it simply a repackaging of exhausted conservative demands for a “small state”? Is it just a partisan attack on left-wing regulation while keeping right-wing state activity safe? Or does it mean something more profound about how the state works? These explanations seem unlikely as Trump has repeatedly promised to defend social security and ensure universal access to healthcare, alongside expanding the military and injecting massive sums into infrastructure.

The concept of the administrative state is one that some conservative thinkers are promulgating as a critique of modern US “progressivism”, of which Barack Obama is a key exponent. Indeed, Obama introduced more regulations than either of his two predecessors (see graph below). Perhaps most feted among conservative thinkers on this question has been Michael Anton, now part of Trump’s senior national security staff. Before November he wrote a series of widely-discussed articles under the pseudonym Publius Decius Mus, at the Claremont Review of Books, to make the case that conservatives should support Trump despite the celebrity billionaire’s obvious flaws. See here for the original article and here, here and here for his responses to critics. At the heart of Decius’s line of argument was that Trump (consciously or unconsciously) was laying out a course of action that would save Constitutional government from its subordination to the unelected and unaccountable administrative state. Hillary Clinton’s election, meanwhile, would signal a point of no return in this process.

In broad outline, this conservative critique of the administrative state targets progressivism, which is usually seen as originating with President Woodrow Wilson, and which is defined as a political movement that sees the US Constitution as having reached the limits of its effectiveness so that social progress must now be implemented by technical experts (usually government bureaucrats under the direction of a progressive administration) unencumbered by legislative politics. Thus, under Obama a gridlocked Congress was repeatedly circumvented through court decisions and federal agency policies, regulations and guidelines to extend, redefine and even override existing legislation. In a sense, these conservative thinkers have developed a critique of the modern technocratic turn in politics — of which Obama was unquestionably a practitioner. While they locate it in an ideologically-driven “progressivist” politics, this blog would see technocracy as one way that the political class has dealt with its own declining authority (in the US most spectacularly reflected in declining trust in government, and especially the legislative branch; see Pew and Gallup opinion poll data below).

Trump laid out a similar argument regarding the Supreme Court, although in much less ideological terms, in his book Crippled America:

Candidates for political office always say they’re running on their record. Unfortunately, their records are made up of them talking about what they’re going to do, rather than them getting things done. Our nation’s capital has become the center of gridlock. It seems like these days most of the energy in Washington is being spent deciding whether we’re going to keep the government operating or not. No surprise there: Washington’s been running a going-out-of-business sale for a long time. It’s no wonder that our president and Congress have such low ratings in the polls. No wonder that we’ve lost our influence and the basic respect of both our allies and enemies throughout the world. Meanwhile, the Supreme Court has decided in their infinite wisdom to fill the breach by making social policy rather than defending our most precious historic assets, the US Constitution and the Bill of Rights. We have three branches of government, but the trunk of that tree is rotting away.

A controversial case of administrative state action that Trump has rescinded (at least temporarily) is Obama’s 2016 guidance to schools on non-discrimination against transgender kids (including how to manage restroom and locker room access). The guidance claims to rest on a series of court decisions and consequent federal policy statements that interpret anti-discrimination laws such as Title VII of the Civil Rights Act (1964) and Title IX of the Education Amendments Act (1972); see endnote 5 of the document for a list of the relevant cases and policies. These laws explicitly oppose discrimination on the basis of sex, but were later reinterpreted by the Supreme Court and federal agencies as opposing discrimination on the basis of gender stereotypes and, later still, gender identity. Thus, over time but with no change in the wording of the law, sex discrimination (i.e. based on biological sex) has morphed into gender identity discrimination (i.e. based on subjective identity).

It is an astounding administrative state solution to a real problem — discrimination against transgender people — that effectively undermines the sex-discrimination laws it rests on. Perhaps more astounding has been the almost complete silence of US feminists on how legal protection against sexism has been undercut by this dramatic reinterpretation of clearly-worded legislation based on well-understood definitions. My point in raising this is not to dismiss the pressing need to address discrimination against trans people, but to outline the problems with the route through which this happened, and the potentially damaging consequences for the interpretation of laws that were won because of mass social struggles for equal rights.

Despite liberal claims that Trump is trying to attack the courts and other parts of the state because he is an authoritarian and/or setting up a pathway to dictatorship, it is more plausible that something else is going on here. On school bathrooms, and other issues, he frequently says these must be dealt with by democratically-elected state legislatures. Similarly, while he publicly excoriated the 9^th Circuit District Court for blocking his hard-line seven-country travel ban, he has not rushed to the Supreme Court (as Obama often did) to get that ruling overturned, and instead has gone back to drafting a new Executive Order that will account for the Court’s objections.

In addition, he has nominated Neil Gorsuch to replace Antonin Scalia on the Supreme Court. While Gorsuch — like Scalia — is a conservative “originalist” (i.e. someone who interprets the Constitution based on what its authors would have intended at the time they originally wrote it), he is considerably more averse to administrative state meddling in civil matters than Scalia was. That is, he tends to uphold the Constitution and laws but is less favourable to regulatory impositions made outside the legislative process, as this perceptive article by CNBC’s Jake Novak points out.

This seems to be how Trump’s anti-political positioning is playing out in the context of now running the executive branch: implementing the program he was elected on is taking precedence and the administrative state is being pared back. I’d argue the two things go together because being seen to deliver on his platform is vital to maintaining enough leverage against his political opponents to avoid being gridlocked himself. It seems clear that this path will set him on a collision course with his own side first, as their preoccupations are decidedly unlike his program, and because the Democrats are in meltdown over the election result which also put them in the minority in both houses of Congress.

Interesting in all this will be whether the more radical sections of the Left can see in Trump’s attack on the administrative state an opportunity to develop some clarity about the problem of the state more generally. Much Marxist thinking these days breaks from Marx’s insistence on replacing the state with an organisation of “freely associated producers” (or a “Commune”), and looks to retaining sections of the capitalist state, although under the control of workers or a “radical Left government”. The growing regulatory reach of state bodies such as the Environmental Protection Agency is often celebrated without questioning the growth of technocratic rule.

At a lower level of state action, the Left has fallen in with many administrative state actions without being critical of the way these reflect a retreat from more democratic channels for winning policy change. The reaction to Trump’s action on the bathroom guidance is one example, seen by the Left as unquestionably regressive when in fact things are much more complicated. Similarly, while it is great that same-sex marriage is now legal across the US, there are convincing arguments that the Supreme Court had little legal basis on which to rest its power to institute such a change. The primary problem, of course, was the utter failure of US politicians to legislate for this even though it was patently clear that US society was ahead of them on the matter. Instead, they deferred to the unelected administrative state to do the job for them. The radical Left didn’t seem to pick up on the problem with decisions moving from parts of the state accountable to democratic processes (however limited) to those further from popular influence. Indeed, some improbably saw the decision as a victory for social movements that on any honest account are much weaker and less radical than those which, in the 1960s and 70s, found it much harder to win such rights.

As I alluded to in my last post, devaluation of even minimal direct popular influence over government has been widely accepted by progressives who lack the social base needed to enforce policies on the state. They have often been uncritical of actions by unelected state officials because they happen to align with left-wing policy preferences. Isolated within the Washington establishment, Trump will find it hard to avoid confrontations with the administrative state. If the Left misreads all his moves as merely reactionary and looks to the administrative state as a shortcut to defending progressive causes, it may well find itself supporting further devaluation of democracy in the name of anti-Trumpism.

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You can catch me in a panel discussion on Trump, psychopathology and the resistance to his administration, on The Third Rail. Thanks to the host, Sera Mirzabegian, and fellow panellist Steven Glass for such a stimulating discussion.