Reining In The Administrative State

Many in the bureaucracy created by Executive Orders and styled as "Executive Branch agencies" believe that this bureaucracy is constrained only by their own actions and not the Executive...

“… that from that equal creation they derive in rights inherent and inalienable, among which are the preservation of life, and liberty and the pursuit of happiness; that to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government shall become destructive of these ends, it is the right of the people to alter or to abolish it …” Jefferson, Declaration of Independence

In fact, agencies created by Executive Order can be abolished by Executive Order. They serve at the pleasure of the Executive, and when the Executive finds that they no longer serve a useful purpose, they can be abolished and their employees fired or reassigned.

And there is plenty of precedent for this in history - for example, all Army officers serve at the “pleasure of the President” according to their commissions. And when that pleasure no longer exists, they’re gone if the President so desires. General “Slow George” McClellan was fired from his post as commanding general of the Grand Army of the Republic by President Lincoln for slow-walking orders, five-star General Douglas MacArthur was fired from his position after a policy dispute with President Truman over the handling of the Korean War.

The Constitution established the Executive Branch as an independent and co-equal branch of our tripartite government, and the two other branches, the legislative and judicial branches, have no direct power over it. The Congress may not tell the President how to run the Executive Branch or micro-manage his actions therein - but the House may refuse to pay for Executive Branch agencies or their operations or refuse to pay for the courts or their operations.

Similarly, the courts, federal or otherwise, may rule on Congressional legislation signed into law by the Executive, judge it to be unconstitutional, and refuse to issue the orders to enforce those laws - but the courts may not direct the Congress to write laws or alter legislation to their liking, nor may they order the President to sign legislation or withhold his consent.

Congress may make a grant of absolute power to the Executive Branch - such as in 8 United States Code Section 118(f), where the President is given the power to exclude any class of alien from the United States, by proclamation - and there is no provision for judicial review. It is an absolute power of the Executive, and Congress may elect, at its discretion, to withdraw it. This has been in effect since 1952 - unchanged.

And each branch runs its own affairs, and the other branches do not have the power under the Constitution to interfere in any way. Such actions would be ultra vires, beyond the scope of the powers given in the Constitution - and the Constitution is the Supreme Law of the United States - even over the Executive-created Administrative State.

The Pendleton Civil Service Reform Act of 1878 and its amendments in later years, culminating in 1978, has been purported to establish the Civil Service and the Senior Executive Service as a “fourth branch” of government - and the Congress, courts, and Executive Branch in the past has treated it as such. But this is clearly flying in the face of the Constitution and its Amendments. There is no amendment which establishes such a fourth branch, and there is no wording in the organic Constitution which mentions the Civil Service or the Senior Executive Service - none, whatsoever. Courts may have “read” purported rights of employees of that alleged fourth branch into the law, and there is precedent for the US government having treated the Civil Service created by the Executive Branch as a separate branch of the government (since about 1937, in fact) - and superior to the three branches enumerated in the Constitution.

But long-standing legal precedents, like the ones established in Dred Scott or Plessy v. Ferguson may be overturned, even though they are left in place for decades, in order to conform the policies and operations of the government to the requirements set out in the Constitution and its Amendments, which are the supreme law of the United States.

President John F. Kennedy established the United States Agency for International Development (USAID) in 1962, at the stroke of his pen, by Executive Order. President Truman created the Central Intelligence Agency, in like manner, in 1947. President Trump, in his sole and absolute discretion, may countermand those Executive Orders and disestablish those agencies entirely, or distribute their functions to other Executive Branch agencies, at the stroke of a pen, by Executive Order as well - and neither the courts nor the Congress may interfere.

President Trump may set work rules for his Executive Branch agencies, may disestablish unions which purport to “represent” his employees and cooperate with them in various insubordinate activities, and fire the union representatives, and the workers who conspire with them to attempt to thwart the will of the Executive. President Reagan did this in his first year in office, when he did a mass firing of air traffic controllers.

President Trump may require his employees to show up for work, set their work hours, and require them to work a full day - and he may fire employees who refuse to do so - and also fire their union representatives who aid them in their insubordinate protest.

And neither the courts nor Congress may interfere under the strictures set out by the Constitution, there is no need for the President or his lawyers to show up in court nor appear before Congress to contest court or Congressional actions which purport to negate his actions in acting as the Executive - they are a nullity, ab initio.

President Kennedy, when he spoke about his desire to “tear the Central Intelligence Agency into a thousand pieces and scatter it to the winds”, could have done so, and been squarely within his Constitutional powers. Had he done so, he may have been elected to a second term, and according to memos from that Administration, the Vietnam War could have been brought to an end by the end of 1963, saving 56,000 American lives - which ended up being wasted in the end. History would have changed, for the better. It is time for President Trump to do precisely that to the American Deep State, the “Permanent Government”, the “Fourth Branch of Government”, and restore the Constitutional rule of law.