COMMENTARY

Trump waged war on the "Deep State." Can Biden's "good government" approach work now?

After years of Trump flexing his executive power, Biden's "good government" approach will have to get results

By John A. Dearborn - Stephen Skowronek - Desmond King

Published February 15, 2021 7:00AM (EST)

Joe Biden and Donald Trump (Photo illustration by Salon/Getty Images)
Joe Biden and Donald Trump (Photo illustration by Salon/Getty Images)

For four years, Donald Trump waged war on the executive branch. Convinced that administrators were out to sabotage his presidency, Trump turned the "Deep State" into a catch-all villain, responsible for everything that went wrong and all that he failed to achieve. 

Joe Biden has a different approach. His administration promises a new era of comity between the chief executive and those he is charged to oversee. But that may be wishful thinking. Trump was not an anomaly. Presidents have been eyeing government bureaucrats as an impediment to their leadership for half a century, and they have been bearing down on them with ever-increasing force. Republican presidents promoted a theory of the "unitary executive," claiming a constitutional right to direct, hierarchical control over the executive branch and mocking the idea that administrators have authority of their own to voice the public interest. Democratic presidents have protested these overblown invocations of presidential prerogative, but in office they have embraced "presidential administration" and promoted new forms of bureaucratic subordination.

Trump's "Deep State" charge was, then, more than a convenient scapegoat for his failings. It amplified already-familiar arguments for stiffening White House direction of the executive branch and making the bureaucracy a strong arm of the president's political priorities. Caricatures of "rogue" bureaucrats supported radical assertions on behalf of a "unitary executive." Trump's spin on that idea — "I have an Article II, where I have the right to do whatever I want as president" — wrapped his personal control of the bureaucracy in constitutional authority and stigmatized any resistance from within as an affront to the people who had elected him. 

Trump's assertions of a unitary executive made his Deep State conspiracy something of a self-fulfilling prophecy. At all levels of the executive branch, administrators responded to Trump's strong-arm tactics by doubling down on their own resources. Drawing upon their statutory powers, cultural authority and political allies, they sought to expose the president's impositions as a threat to the public — as opposed to the president's — interest.

Biden is not Trump. The spectacle of constant clashes between the president and administrators that characterized the last four years will recede. But it will take more than a change of presidents to resolve these issues.

Biden vows to practice self-denial, to pull back on potential uses of presidential power and to respect the authority of others. To restore the government's integrity, he pledges deference to norms of independence at the Department of Justice, to the authority of scientists at the Environmental Protection Agency, and to the advice of public health professionals in responding to Covid-19.

But we should not leave good government to the discretion of presidents. If the Trump administration taught us anything, it is that we cannot rely on a president's good intentions to protect the authority of science and prosecutorial independence.

Even as Biden pledges to restore norms, to respect science, and to surround himself with experts, he is beset by demands to go bold, to move faster, and to insist that the executive branch implement his preferences. Alluring campaign promises to take decisive action on "Day 1" across a range of political priorities committed the administration to a record-breaking round of executive unilateralism. The extensive use of White House policy "czars" promises to keep the executive branch in a more or less constant state of agitation.

Biden's dilemma has been compounded by Trump's legacy. It will be hard for him to reinvigorate the executive branch without upending norms and protections for administrative independence on his own.

On some fronts, Biden has already decided that such aggressive action is required. Confronting a cadre of Trump loyalists now protected with civil servant status, Biden's administration has dealt with its own Deep State by consigning employees to administrative leave or even firing them outright. After the Supreme Court's ruling in Seila Law v. CFPB, Biden fired the Consumer Financial Protection Bureau director years before her term expired, selecting his own replacement for that once-independent office. And Biden broke with a longstanding norm by removing the National Labor Relation Board's general counsel 10 months prior to the expiration of his term.

Other hard choices loom large. If the president replaces two of Trump's controversial inspectors general on grounds of bias, he will further undermine the norms of IG independence that Trump crushed. At DOJ, Biden inherits a department with career officials responsible for defending some of the Trump administration's worst policies, but moving against seems an affront to cause of restoring the department's integrity. Pausing migrant deportations means breaking the resistance of ICE agents given autonomy to act by Trump.

A single election will not magically restore the distinction between presidential supervision and one-man rule. This is a systemic problem. If the goal is to restore administrative integrity, we cannot not rely on presidents.

To break out of this predicament, Americans will have to decide what kind of state we want.

Do we want a strong state, hierarchically controlled by a president who acts alone in the name of those who elected him? Trump has shown us what that looks like.

Or do we want a state where administrators have a role of their own to play in the articulation of the public interest? If nothing else, resistance to Trump from the "Deep State" has reminded us of important values threatened by unitary command and control.

Americans have become so inured to the idea of a unitary executive that they have forgotten a long, prior history of hammering out partnership agreements, forging institutional collaborations, and fostering power-sharing arrangements. We cannot count on presidents, even well-meaning presidents, to do that.

We must look instead to the institutions that surround the presidency — to Congress, the Court, the parties, and the agencies. Only they can forge the working relationships required to ensure that the presidency serves interests beyond itself. If we don't find a more systemic solution, we will soon find ourselves trapped again by presidents free to determine the scope of their executive power on their own.

John A. Dearborn (Yale), Stephen Skowronek (Yale), and Desmond King (Oxford) are the authors of "Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive," published by Oxford University Press


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Commentary Deep State Donald Trump Executive Powers Joe Biden