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The Administrative State and De-Democratization

The United States and European Union have increasingly become administrative states in which key decisions are made, arbitrated, and enforced by unelected agencies and appointees with little public accountability. Critics have noted that these powerful, opaque bureaucracies have been increasingly politicized and beholden to ideological interests at odds with mainstream citizens.

Low Public Trust in Federal Government

An nationwide U.S. survey conducted in October 2021 by the Partnership for Public Service and Freedman Consulting found that “only 4 in 10 Americans say they trust the federal government to do what is right at least some of the time.” 66% of Independents and 71% of Republicans expressed their trust that the federal government will do the right thing as “not much” or “not at all” compared to 38% of Democrats, among whom 60% reported “a lot” or “somewhat” of trust in the government.[1]

A Pew Research Center survey conducted in June 2022 found that Trust in government was near historic lows: “only two in ten Americans say they trust the government in Washington to do what is right “just about always” (2%) or “most of the time” (19%); that trust had declined from 24% in 2021.[2] When the study began in 1958, “about three-quarters of Americans trusted the federal government to do the right thing almost always or most of the time.” Results also reflected political preference,: “29% of Democrats and Democratic-leaning independents say they trust government just about always or most of the time, compared with 9% of Republicans and Republican-leaners.”

Notwithstanding similarities, these two studies explored different questions. The Pew study focused on government in Washington, emphasizing elected officials, whereas the Partnership for Public Service survey pursued questions regarding the federal government and its employees nationwide. In the Pew study, trust has trended downwards but has alternated over time depending on the party in power.

In longitudinal studies, members of the party controlling the presidency have expressed greater confidence in government. Americans express greater confidence in the federal government and its employees (approximately 4 in 10) than in partisan elected officials (2 in 10), although both measures are low.

Research on the wisdom of crowds has found that pooled data and opinion from individuals is often more accurate than so-called expert opinion, which is more susceptible to biases and oversights. Just as overwhelming public perception of media bias reflects documented realities, notwithstanding gaslighting and junk “science” by self-interested partisan “experts,” low public trust in the federal government likely reflects real challenges.

The wide partisan divide in the Partnership for Public Service survey, with six in ten Democrats expressing trust in federal government and two-thirds of politically unaffiliated voters expressing distrust, conveys that the federal government is widely perceived as biased towards Democrats and against the interests of independents and mainstream Americans.

Systemic Bias

Research on federal employees has largely substantiated alleged biases. In 2022, 94% of political donations by the American Federation of Government Employees went to Democrats.[3]

A survey by the Government Business Council in September 2020 found electoral support for the Democratic Presidential nominee at nearly twice the level of support for the Republican with a +28% margin,[4] compared to a +4-5% margin among American voters generally.

Among approximately two million federal employees, from 1999 to 2017 the number of registered Republicans declined from 32% to 26%, well below national averages.[5] Half were registered Democrats, well above the 41% average nationwide, with the imbalance becoming more severe in upper management.

The National Bureau of Economic Research noted that "the overrepresentation of Democrats increases as we move up the hierarchy:"

• "Among employees in grades 1-12 of the GS, we find about 50% of Democrats (30% of Republicans and 20% of independents), which rises to approximately 56% at the top of the GS (grades 13-15), and to 63% among career SES [Senior Executive Service].”[6]

Whereas 63% of federal government senior executives are Democrats, just 20% are Republicans. Daniel Greenfield observed:

• “If we were looking at a similar breakdown of racial groups in which the share of every racial group declined as it moved up the ranks, except one, it would be evidence of bias…Democrats want us to believe that the consolidation of the civil service by one political faction is somehow a natural occurrence which does not reflect a calculated strategy or patronage. In between political tests like diversity and equity, the insistence on concentrating federal leadership in Democrat areas, and providing special entryways and promotions to members of identity politics groups more likely to vote for their party…Democrats created an independent bureaucracy that provides its own patronage.”[7]

The NBER researchers observed the “sizable mission misalignment between politicians and civil servants” with differing political orientations which resulted in higher costs and lower efficiency in implementing directives.

This research provides an objective framework for the longstanding observation that government agencies have tended to obstruct or slow-walk conservative policies[8] while fast-tracking leftist executive orders[9] with little pushback, even in the absence of legal authority.[10]When conservatives are elected, government may fail to meaningfully implement the people’s will, whereas leftist directives are amplified far beyond their public mandate.

The systemic bias of wide and growing discrepancy in ideology and values between senior government administrators and the people that are ostensibly employed to serve has been cited as anti-democratic and fuels mismanagement, waste, and distrust.

Skewing Democracy

The nonpartisan Congressional Research Service (CRS) released a report in September 2023 entitled “Current Federal Civilian Employment by State and Congressional District.”[11] Analysis of the report identified “the 10% rule: If 10% or more of the workers in a particular congressional district were civilian federal employees in 2022, then that district elected a Democrat to the House of Representatives.”[12] Terrence Jeffrey wrote:

• “There were seven congressional districts in which more than 10% of all employed civilians worked for the federal government…Last November, every one of these seven districts elected a Democrat to Congress. Indeed, 12 of the 13 districts that had the highest percentages of federal civilian workers among their employed population were districts that elected Democrats.”

In a nation where the House of Representatives has recently been controlled by only a few seats, federal civilian employees have been a key constituency. This constituency has been far from apolitical, but has provided reliable votes in the “D” column at a rate far out of step with the general public.

Purges and Ideological Tests

Bias in federal government employment, especially at high levels, has grown beyond hiring and advancement to purges against those who do not tow an ideological “party line.” The Biden-Harris Administration has been accused of engaging in an unprecedented ideological purge. Partisan apologists have claimed that such turnover is simply "par for the course,"[13] while ignoring that Biden’s purge has involved many positions historically protected from partisan firings by law or precedent.

Purges of Immigration Judges

The National Association of Immigration Judges challenged the firing “of several judges hired during the Trump administration, questioning whether the firings were illegal — and calling them unseemly at the very least.”[14] The union noted that three new “judges had each received satisfactory performance evaluations during their two-year probationary periods. That made the decision by the Executive Office for Immigration Review to kick them out of their jobs at the end of probation rather than convert them to permanent positions all the more striking,” and complained that “ordering the judges out of their offices without a chance to collect their belongings was ‘unprofessional and unbefitting.’” Matthew O’Brien, one of the ousted judges, stated:

• “It’s an attempt to weaponize the courts along ideological lines. It’s court packing on steroids. It’s court packing by deletion and then addition, because they’re getting rid of judges and they’re replacing them with people who meet their ideological framework.”[15]

The Center for Immigration Judges noted that by law, “political decisions can’t guide IJ [immigration judge] personnel decisions” and that an ideological purge would threaten judicial independence.[16] Yet that is precisely the point. As with legislation introduced by both House and Senate Democrats to pack the Supreme Court,[17] critics have cited an underlying agenda of a politicized judiciary beholden to ideological interests.

The New York Times noted that Biden fired the Social Security Administration chief appointed by the prior administration, notwithstanding that agency chiefs are “appointed to fixed terms” and have “historically enjoyed a high degree of insulation from political dismissals.”[18] Biden had previously removed the head of the Federal Housing Finance Agency.

Purges of Military Appointees

Whereas the military has traditionally been insulated from politics, and this distance is seen as essential to public confidence, the Biden Administration’s politicization of the militaryhas also involved unprecedented purges.

With the incoming Biden administration, the Pentagon chief ordered the resignation of hundreds of military advisory board members.[19] Biden further purged 18 Republican appointees from service academy boards.[20] Mike Howell noted:

• “Before Biden, there was an unspoken consensus that members placed on advisory boards by an outgoing administration would be maintained by the present administration. By trying to purge these military boards, Biden has once again broken with the American tradition of presidents endeavoring to not politicize the military.”[21]

Some fired advisers, including Kellyanne Conway, Sean, Spicer, former House speaker Newt Gingrich, and some others, were last-minute Trump appointees with no clear qualifications to serve on a military board that we can discern.[22] Yet many of the terminated board members were well-qualified military officers who appear to have been removed for political reasons.[23]

The Administrative State

The administrative state is a paradigm of government bureaucracy that creates, adjudicates, and enforces its own rules. The United States has both executive agencies and legislative agencies which are among “the oldest bureaucratic components in the nation.”[24]

A theoretical understanding of the Administrative State was articulated in a 1948 paper of that name by Yale scholar Dwight Waldo. In the paper, Waldo notes that democratic states are underpinned by professional and political bureaucracies and that service to the public rather than scientific management alone is the core principle of the administrative state. The state bureaucracy must uphold the constitution, relevant law, and meet public needs and expectations while also striving for efficiency and good management.

Harvard Law Review noted in 2011: “The presidential control model of the administrative state, perhaps most definitively expounded by now-Justice Elena Kagan, suggests that top-down accountability affords agencies a measure of democratic accountability and assures effective administration."[25] In other words, citizens can hold the president or other elected executive accountable at the ballot box.

The Harvard authors go on to question whether indirect accountability is enough to offset the “agencies' natural hunger for power from overriding their mandate to act in the best interests of the people.” They write that the presidential control model is “premised upon a fundamentally untenable conception of the consent of the governed” and that evidence challenges “the assertions that presidential judgments are truly representative of majoritarian preferences and that presidential incentives are necessarily aligned with dynamic, effective administration.” Regarding the “broad delegations of power” to executive agencies, the authors observed:

• “Much rests on the implementation, however. As a sympathetic skeptic has observed, civic republican proposals either have a utopian quality, or have a general reformist cast that raises doubt about whether the brew is potent enough to address the deeper, thoroughgoing problems of governance.’ The model offers no satisfactory explanation of how members of a diffuse, national public come together to deliberate over regulatory means and ends; nor does it provide any ‘reason to believe that deliberation alone is sufficient to generate desirable regulatory outcomes.’ Regardless of how robust the democratic accountability of the administrative state envisioned in the civic republican model might be, the model has tended to falter before competing demands for administrative effectiveness.”

Kagan’s claim that the administrative state is a democratically accountable institution would have potentially greater credibility in a true “spoils system” in which all administrators are appointed by elected officials after each election. That is demonstrably not the case, however, as shown by government agencies’ record of impunity and unaccountability.[26] Kagan’s advocacy likely reflects the strong and growing bias of government bureaucracy towards her personal politics more than any true democratic governance and accountability.

Executive Overreach

The political opposition has complained of executive overreach during both Democratic[27] and Republican administrations, framing concerns as protecting democracy and reasserting constitutional processes and safeguards.[28] Congress has held hearings on executive overreach in health care and immigration,[29] IRS abuse, welfare reform,[30] and other issues.

As the Harvard Law review noted, presidential rule reflects a fundamentally untenable model of consent of the governed. In other words, claims of popular consent for executive order, and other acts of presidential fiat are dubious. The administration of even a lawfully elected president is subject to numerous undemocratic influences, which can often supplant the will of the people.

Both political parties have abundantly alleged authoritarian and anti-democratic elements of rule by presidential decree when perpetrated by political opponents, only to engage in such conduct extensively themselves with no such moral scruples when their own party controls the presidency. In this way, executive orders have been used to usurp legislative power and perform an end run around the peoples elected representatives. This conduct promotes bad faith and the breakdown of democracy. Why should parties dialogue in good faith or compromise when they can ignore constitutionally established processes and impose their agenda by executive fiat?

Research has demonstrated that the legislative branches of government, including the Senate and House of Representatives, are far more democratic than the executive branch. The lack of timely remedies and insufficient sufficiently severe punishment for those who engage in such conduct creates perverse incentives for executives to engage in unlawful overreach and punishes those who play by the rules.

When executive orders are issued, the executive relies primarily on federal agencies for implementation and often also for underline guidance. Because these agencies exercise wide-ranging powers and are not directly accountable to the public, concerns regarding executive overreach and infringement on civil liberties both domestically and internationally have been raised by groups on the political left[31] and right.[32]

Noting that “The Bureaucracy’s Democrat Majority Made America a One-Party Government, Greenfield wrote:

• “Civil servants are not ‘stewards of the public good.’ The American people are. Monarchies and tyrannies have stewards of the public good. The only true constitutional and democratic virtue of a civil service is that it is easy to fire. A bureaucracy that can't be gotten rid of isn't serving the people, it's mastering them, and that is what the administrative state has long since become.

• “The only reason Democrats are panicking over permanent patronage reform is because the ranks and especially the senior management of the federal bureaucracy are full of their people. There's nothing democratic or merit-based about letting a corrupt partisan faction control the administrative state and the lives of hundreds of millions of people with no recourse.”

Response to Defenders of Partisan Bureaucracy

Partisan propagandists have attacked calls for reform of the government bureaucracy. A common tactic is to create a false dichotomy between a fringe view and their own extreme views while evading key facts and centrist objections. Another tactic is to falsely label anti-corruption and anti-bias critics as “anti-government,” as if calling for reform and government integrity were attacks on the institution of government itself.

An example is Russell Berman’s piece “The Open Plot to Dismantle the Federal Government” in the Atlantic.[33] Berman attacks charged rhetoric by certain figures demanding government reform. We do not agree with derogatory rhetoric against federal employees, nor do we agree with the dismantlement of constitutional and properly functioning institutions.

Berman writes about government employees who “have made it their mission to promote and protect the nonpartisan civil service. They proudly endorse the idea that the government should be composed largely of experienced, nonpolitical employees.” He quotes former administrator Paul Dans: “We’re at the 100-year mark with the notion of a technocratic state of dispassionate experts.”

Berman’s readers are left with the false notion that government administration actually consists of “nonpolitical employees” and “dispassionate experts,” and that objections are baseless. Nowhere does he acknowledge well-documented findings of the heavy partisan skew of government employees. He similarly evades addressing numerous allegations of bias, unequal treatment, and abuse of power by partisan bureaucrats. He ignores numerous examples of ideological purges of conservative and centrist government employees by leftist officeholders.

Berman asserts the ostensibly universal “nonpolitical” nature of government bureaucrats axiomatically without evidence. As Dr. Thomas Sowell pointed out, government officials have their own incentives which often do not align with those of the electorate. Berman presents a false dichotomy between mass firings on political whim (which in fact has characterized the Biden administration) and apparent impunity of government officials to charges of bias or misconduct (at least, when such charges are made by conservatives). He is silent on the ideological purges of government officials which have actually been conducted by leftist leaders, yet paints even the possibility of similar conduct from the right as a dire threat to public interest. Berman offers no common-sense measures to ensure that government bureaucrats are in fact nonpolitical and are responsive to the peoples’ elected representatives instead of pursuing their own agendas. The result is a propaganda piece which devolves into gaslighting.

Surely, government can be reformed without being “dismantled.” It seems impossible that Berman is ignorant of evidence of partisan bias in government agencies. It appears far more likely that he provides cover for them because he agrees with their brand of partisanship.

Dismantling, no. Reform, absolutely.

References

[1] Hitlin, Paul and Nadzeya Shutava. "Trust in Government." Partnership for Public Service and Freedman Consulting, 2022. https://ourpublicservice.org/publications/trust-in-government/

[2] "Public Trust in Government: 1958-2022." Pew Research Center, June 6, 2022. https://www.pewresearch.org/politics/2022/06/06/public-trust-in-government-1958-2022/

[3] "American Federation of Government Employees." OpenSecrets.org. https://www.opensecrets.org/orgs/american-federation-of-government-employees/totals?id=D000000304. Accessed December 6, 2022.

[4] Katz, Eric. "Poll: Biden Leads Trump Among Federal Workforce by 28%." Government Executive, September 18, 2020. https://www.govexec.com/workforce/2020/09/poll-biden-leads-trump-among-federal-workforce-28/168581/

[5] "Study finds the cost of partisanship among federal workers." University of California, Berkley Hass School of Business, April 21, 2021. https://www.newswise.com/articles/study-finds-the-cost-of-partisanship-among-federal-workers

[6] Spenkuch, Jorg L., Edoardo Teso, Guo Xu. "Ideology and Performance in Public Organizations." National Bureau of Economic Research, Working Paper 28673, April 2021. http://www.nber.org/papers/w28673

[7] Greenfield, Daniel. "The Bureaucracy's Democrat Majority Made America a One-Party Government." Front Page Mag, August 5, 2022. https://www.frontpagemag.com/bureaucracys-democrat-majority-made-america-one-daniel-greenfield/

[8] Flavelle, Christopher and Benjamin Bain. "Washington Bureaucrats Are Quietly Working to Undermine Trump’s Agenda." Bloomberg, December 17, 2017. https://www.bloomberg.com/news/features/2017-12-18/washington-bureaucrats-are-chipping-away-at-trump-s-agenda

[9] Hickey, Christopher, Curt Merrill, Richard J. Chang, Kate Sullivan, Janie Boschma and Sean O'Key. "Here are the executive actions Biden signed in his first 100 days." CNN, April 30, 2021. https://www.cnn.com/interactive/2021/politics/biden-executive-orders/

[10] Agresti, James D. "Congressional Records Prove Biden’s Student Loan Cancellations Are Illegal." Just Facts Daily, September 15, 2022. https://www.justfactsdaily.com/congressional-records-prove-bidens-student-loan-cancellations-are-illegal

[11] “Current Federal Civilian Employment by State and Congressional District.” Congressional Research Service, September 22, 2023.

https://crsreports.congress.gov/product/pdf/R/R47716

[12] Jeffrey, Terrence P. “These Congressional Districts All Elected Democrats — Call It The ‘10% Rule.’” MSN, September 28, 2023. https://dailycaller.com/2023/09/28/opinion-these-congressional-districts-all-elected-democrats-call-it-the-10-rule-terence-p-jeffrey/

[13] Mucha, Sarah. "White House tells Trump complainers: get over it." Axios, May 27, 2021. https://www.axios.com/2021/05/27/whi

[14] Dinan, Stephen. "Union calls for DOJ to review its firing of Trump immigration judges." Washington Times, June 27, 2022. https://www.washingtontimes.com/news/2022/jun/27/union-calls-doj-review-its-firing-trump-immigratio/

[15] "‘Unprecedented’ upheaval in immigration courts from Biden’s bid to reshape the agency." Washington Times, June 20, 2022. https://www.washingtontimes.com/news/2022/jun/20/doj-engaged-court-packing-steroids-immigration-jud/

[16] Arthur, Andrew R. "Is There an Ideological Purge Going on in the Immigration Courts?" Center for Immigration Studies, June 22, 2022. https://cis.org/Arthur/There-Ideological-Purge-Going-Immigration-Courts

[17] "The Democrats' Plan to Pack the Supreme Court." Senate Republican Policy Committee, April 22, 2021. https://www.rpc.senate.gov/policy-papers/the-democrats-plan-to-pack-the-supreme-court

[18] Tankersley, Jim. "Biden Fires Trump Appointee as Head of Social Security Administration." New York Times, July 9, 2021. https://www.nytimes.com/2021/07/09/business/biden-social-security-administration.html

[19] "Pentagon chief purges defense boards of Trump appointees." PBS, February 2, 2021. https://www.pbs.org/newshour/politics/pentagon-chief-purges-defense-boards-of-trump-appointees

[20] Toropin, Konstantin. “Biden Orders 18 Trump Appointees Off Service Academy Boards.” Military.com, September 8, 2021. https://www.military.com/daily-news/2021/09/08/biden-orders-18-trump-appointees-off-service-academy-boards.html

[21] Howell, Mike. “Biden’s Unity Purge of Military Advisory Boards.” Heritage Foundation, September 13, 2021. https://www.heritage.org/defense/commentary/bidens-unity-purge-military-advisory-boards

[22] Cameron, Chris. “White House Forces Out Trump Appointees From Boards of Military Academies.” New York Times, Sept. 8, 2021. https://www.nytimes.com/2021/09/08/us/politics/trump-appointees-military-academy-boards.htm

[23] McCormick, Grayce. "Biden boots all Trump-appointed military academy advisory board members." NBC Montana, September 9, 2021. https://nbcmontana.com/news/nation-world/all-trump-appointed-military-academy-advisory-board-members-booted

[24] "Executive Agencies." Justia.com, May 2022. https://www.justia.com/administrative-law/executive-agencies/

[25] "Deweyan Democracy and the Administrative State." Harvard Law Review 125 (December 11, 2011): 580-601. https://harvardlawreview.org/wp-content/uploads/pdfs/vol125_deweyan_democracy.pdf

[26] "Unleashed and Unaccountable: The FBI's Unchecked Abuse of Authority." American Civil Liberties Union, September 2013. https://www.aclu.org/sites/default/files/assets/unleashed-and-unaccountable-fbi-report.pdf

[27] "Leader Rodgers Warns Biden Administration Officials Against Executive Overreach." Energy & Commerce Committee, House of Representatives, September 28, 2021. https://republicans-energycommerce.house.gov/news/leader-rodgers-warns-biden-administration-officials-against-executive-overreach/

[28] "Protecting Our Democracy: Reasserting Congress' Power of the Purse." US House of Representatives Committee on the Budget, April 29, 2021. https://www.govinfo.gov/content/pkg/CHRG-117hhrg44771/html/CHRG-117hhrg44771.htm

[29] "Executive Overreach in Domestic Affairs (Part I) - Health Care and Immigration." House of Representatives Executive Overreach Task Force, Committee on the Judiciary, March 15, 2016. https://www.congress.gov/114/chrg/CHRG-114hhrg99453/CHRG-114hhrg99453.pdf

[30] "Executive Overreach in Domestic Affairs (Part II) - IRS Abuse, Welfare Reform, and Other Issues." House of Representatives Executive Overreach Task Force, Committee on the Judiciary, April 19, 2016. https://www.govinfo.gov/content/pkg/CHRG-114hhrg99839/pdf/CHRG-114hhrg99839.pdf

[31] Feingold, Russ. "It’s Time to Tear Up the Executive Branch’s Blank Check." Brennan Center, July 22, 2021. https://www.brennancenter.org/our-work/analysis-opinion/its-time-tear-executive-branchs-blank-check

[32] Grossman, Andrew. "Executive Overreach in Domestic Affairs Part II — IRS Abuse, Welfare Reform, and Other Issues." Cato Institute, April 19, 2016. https://www.cato.org/testimony/executive-overreach-domestic-affairs-part-ii-irs-abuse-welfare-reform-other-issues

[33] Berman, Russell. “The Open Plot to Dismantle the Federal Government.” The Atlantic, September 23, 2023. https://www.theatlantic.com/politics/archive/2023/09/trump-desantis-republicans-dismantle-deep-state/675378/