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Di Leo: The Deep State — an Institutional Barrier Against Draining the Swamp



Washington mall

By John F. Di Leo –

As the Trump Administration began, two terms took over our discourse, from keyboard warriors on social media to the formal political theorists of the mainstream media. These two terms are not exactly antonyms, as one is a verb and the other is a gerund, but they certainly are diametrically opposed to each other:  Draining the Swamp on the one hand, and the Deep State on the other.

Draining the Swamp was easy to say, easy to understand, easy to cheer for.  We all know there’s corruption in the federal government, both in regular terms (people breaking the law while holding a public trust) and in philosophical terms (people whose very roles are by definition destructive, such as a regulator whose job is to put good people out of work).

“Drain the Swamp!” is a great line to shout at a protest, or to chant during a march.  It’s a wonderful exclamation with which to close a theme in a campaign speech, and it’s well worth doing.   But actually doing it, when the time comes, is hard.

The Deep State is the reason that Draining the Swamp is so hard.   When we talk about “the state” in this context, we’re not talking about one of the fifty, we’re talking about government in general.  It’s made up of elected officials, and their political appointees, and all the civil servants, from newbie to career, who fill the massive government of the United States of America. 

Our Founding Fathers intended a tiny state: lots of free citizens, very very few in government.  But we went off the rails early in the 20th century, and government mushroomed.  The Deep State is a reminder that much of government is huge, deep, distant, and apparently untouchable.

The Founding Fathers intended a government so small that each election could correct errors, if errors were made… but civil service reforms – well-intentioned, of course, always well-intentioned – minimized that ability to the point that it became almost impossible for elections to correct errors at all!

Ever more government positions became “Hatched” – protected from firing by political officeholders or their political appointees – until the point was reached where the entire government exists on its own, a massive civil service bureaucracy almost entirely independent of the will of the voters.

It shouldn’t take a degree in Political Science to realize that this is utterly contradictory to the will of the Framers and the design of our American system.

The Federal Departments

Generally speaking, the President and Vice President are elected, and then they appoint a department head to every Cabinet-level department, and he or she then appoints several “under-secretaries” and “special assistants,” most of whom need Senate approval. They appoint a few aides… and after that, almost 100% of the employees of that department and all its agencies are protected members of the civil service.  This means that perhaps they can be fired for cause or for budget cuts – perhaps – but not for policy changes directed by the new administration.

We elect Presidents to make such changes, but our system only easily supports one kind of change.  It’s easy for a new President or Congress to expand government, to hire new people and direct them toward new regulations, but it’s very difficult indeed for a new President or Congress to trim the sails of that existing government.  It’s almost impossible to fire them, or to restrict an agency that has gone too far.

Once upon a time, Congress passed a law to set up a new agency or to promulgate a new regulation; for a new Secretary to trim back such agencies and regulators requires a single-minded attack strategy for which few have time.

The Department of Justice

Let’s look, for example, at the department of the hour, the one most in the news these days: the U.S. Department of Justice.  The same things we’ll discuss here have happened in every department; everything that follows here can be found at Treasury, at Education, at Health and Human Services, etc.  But let’s just look at the DoJ for now.

We all know certain things about the job of the Attorney General:  that he manages the selection of federal judicial appointments for the President to choose from… he manages special prosecutors when needed… and of course the DoJ manages lots of federal prisons…  and federal prosecutions of businesses under anti-trust violations and the Foreign Corrupt Practices Act.

That’s a full time job right there.

But over the years, without the public even noticing, Congress and the Presidents have created lots more jobs, lots more agencies, that have had to wind up somewhere, and a lot of them have wound up in the DoJ.  Spend a few minutes online, at www.justice.gov/agencies, and see the DoJ's organizational chart for yourself.

For instance:

  • The Defending Childhood Initiative is a program built around the occasional necessity of children to be witnesses in criminal cases.
  • The Elder Justice Initiative similarly builds a federal agency around the specific circumstances of nursing homes, retirement, and similar issues focused on the elderly.
  • The Bureau of Justice Statistics is a numbers agency, a collecting house for data from cities, counties, and states, which then produces reports that put all this data to use. And that data gets reported to Congress, to academia, and to media.
  • The Community Oriented Policing Services office assists cities in managing new approaches to policing, such as non-violent dispute resolution.
  • The Office for Access to Justice provides help to people who can’t afford top-dollar attorneys to represent them in court or help them when they’ve been wronged.

It’s easy to see why each of these agencies, and dozens more, were created in the first place.  There are good intentions at their heart.  But in practice, as the Left has gotten control of such offices, particularly in the Clinton and Obama administrations, they have been filled with people who believe in using the federal government as a cudgel to direct local and state policy in their direction.

The federal DoJ has been used to completely take over the management of local police forces.  It has been used to force high schools to let boys and girls use each others’ bathrooms and locker rooms.  It has been used to fund national groups who fly into a community from outside and sue local businesses, landlords, and governments on political grounds completely foreign to those communities.

Sometimes that’s appropriate, as it was in the days of the civil rights efforts of the 1960s.  But all too often, it’s not just inappropriate, it’s an unconstitutional encroachment of the rights of the states and the people under the 10th Amendment.

The idea of an independent civil service – a totally well-intentioned concept, remember – has therefore caused the problem we have today. 

If one administration appointed a few political appointees and tons of civil service appointees, then when a new administration comes in, only the political appointees are purged; the civil service appointees are protected for life.

What kind of appointees do you think Janet Reno’s, Eric Holder’s, and  Loretta Lynch’s hiring authorities selected for those civil service positions?

When the Office for Access to Justice was created in 2010, it was staffed with “true believers” in the Leftist approach to justice – completely pro-criminal, completely discarding the protection of the victims.  And when that Community Oriented Policing Services office was established in 1994, it was Janet Reno’s staff who hired the original civil service employees there too.

In both of these cases, think about the years of their establishment.  After both 1994 and 2010, left-wing extremists had six more years to fill up those agencies with their kind of activists before Republican administrations came into office. We’ve chosen only two examples to feature here; there are many more, in this and every department.

Personnel is Policy

One of the best-remembered truisms of the Reagan administration is the pithy statement, “Personnel is policy.” This isn’t to diminish the rule of law, of course; conservatives are the truest advocates of the rule of law… but it is to stress that if you believe in the rule of law, you must appoint employees who believe in it too.

If your staff disagrees with your direction, they can undermine it.  So the Reagan administration tried, in the 1980s, to do what it could to staff up with good people.  But thanks to the aforementioned civil service rules, they couldn’t force out the bad ones.  We have therefore always had both good and bad – pro-American and anti-American – bureaucrats throughout our federal bureaucracy.

The Right has an institutional disadvantage in this struggle:  as a general rule, conservatives don’t want to work for government; liberals do.  So when liberals enter these agencies, especially at the outset, they are more likely to remain, safely Hatched, for their entire careers.  When conservatives enter, they often to do so only to gain experience so they can move up in the private sector.

Any new administration is likely, therefore, to inherit a bureaucracy already naturally skewed in the favor of big government.

So we now look at a new Attorney General, Jeff Sessions of Alabama… a senator for the past two decades, a state level Attorney General and former US attorney before that.  Perfectly experienced for this new position.

Congress and the public rightly expect him to focus – full time – on the obvious jobs.  Running the FBI, the DEA, the selection of judicial appointments.   They will nag him on matters like prosecutions of companies who’ve been alleged to violate the big corporate rules, and they will nag him to appoint special  prosecutors whenever they smell blood in the water anywhere in government.

But this administration was elected to Drain the Swamp… to remove the corruption that’s been baked into Washington DC for decades.

This means prosecutions of crooked politicians who’ve been getting away with it for years.  It means new commissions to root out such corruption within the civil service. 

And somehow he must also find time to deal with the termites in the Deep State… the civil servants – agencies chock full of them – who, in their normal course of employment as federal bureaucrats, undermine our very system.

If this administration is to make any real progress, somehow the new Attorney General must find a way to turn agencies like the ones listed here – and dozens more – away from their long path of undermining our system, and turn them back toward useful, constitutional goals.  This is possible, though difficult, with some of these agencies.

But with some of these agencies, it may be impossible.  We have a host of agencies in our federal government that are so populated with true believers in what can only fairly be called tyranny that the only solution is to close down the agencies entirely.

And that’s where the names of these agencies come into play.  Imagine an administration that calls for the closure of something called the “Community Oriented Policing Services” or the “Office for Access to Justice.”   Imagine the optics of that, as they say in Washington.

If it’s discovered that a birthday cake was poisoned, you naturally remove the birthday cake from your child’s party rather than serve it.  But you know that half the kids will report back to their parents “they refused to serve the birthday cake!”

Optics.  Just one of the many challenges that the Deep State has baked into the political system.

As we read of “leaks” from the Washington establishment in the days and months and years to come… as we hear of resistance from within the government to the changes that our nation so desperately needs… remember how deeply infested the government is with termites – with people who live their very lives to overregulate, to exceed their authority, to hamstring the free market in every way they can.

The Deep State is full of people who were hired in the Obama years, the Clinton years, and the Carter years, to do exactly what the 2016 election revolted against.  They’re still there, and they’re very hard to get rid of.

In addition, many of those people got themselves promotions over the years, to work in Human Resources, to work as managers and supervisors and directors.  You know what that means: they were empowered to do more hiring themselves.

So even during the Reagan administration, and the Bush I and Bush II administrations, there were Carter and Clinton era appointees hiring more of their kind of people into the government.  While the Presidents and cabinet Secretaries gave orders from the top, bureaucrats continued to be hired into the civil service by civil service holdovers, to thwart those orders!

This is why President Trump’s order for a hiring freeze in the federal bureaucracy is so critical. It’s not just for budgetary reasons; it’s because, somehow, we have to stop expanding the regulatory state, and somehow get control of the regulators already in place after a century of uncontrolled expansion.

Somehow, if this nation is to survive, the Deep State must be made to understand that their protections as civil servants do NOT overrule the voters’ protections under the Constitution.

We must, somehow, return to the ways of the Founding Fathers.  We must again learn to appreciate the limitless potential afforded only by limited government.

Copyright 2017 John F. Di Leo

John F. Di Leo is a Chicagoland-based writer, actor, and Customs broker.  His columns are regularly found in Illinois Review.

Permission is hereby granted to forward freely, provided it is uncut and the IR URL and byline are included.


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