The origins of the term Deep State arose in modern times from the secretive Turkish network known as derin devlet. This group was founded in 1923 by Mustafa Kemal Atatürk with the purpose of undertaking clandestine acts to preserve the current governmental structure. Deep State has since come to mean any unelected “shadow government” operating behind the scenes of a democracy.
The P45 administration has altered the popular meaning of the term, similar to its appropriation of the term fake news—a term that originally referred to unsourced clickbait news from unverified outlets—as any news printed by legitimate press outlets that reflects badly upon the President or his administration. While prior arguments about a US deep state were related to Bush-era policies, the P45 administration claims that their goals are being held back by a cabal composed of former Obama-era allies who are supposedly trying to sabotage the new administration.
Contrary to these utterances, history instructs that the deep state is not blue, nor Obama-like. Recently, P45 mewled on Twitter: “Do you get the impression that the Supreme Court doesn’t like me?” This infantile question followed two SCOTUS decisions that stalled efforts by the administration with respect to annulling the Deferred Action for Childhood Arrivals (DACA) program and another seeking to limit workplace discrimination.
DACA was created by President Obama in 2012 by executive order as a policy of the federal government. As noted by legal advocates, the authority lies in the Constitution, Article II, Sec. 3, providing the President “shall take care that the laws be faithfully executed.” Under prosecutorial discretion, the application of immigration laws involves determining who should be targeted for deportation and who may be allowed to remain in the United States.
Despite the best efforts of a number of states, courts repeatedly upheld [DACA]. Lower federal courts had issued a number of conflicting decisions, with those favoring DACA finding that legal assaults on the program failed because they violated procedures for rescinding government regulations, citing the Administrative Procedures Act of 1946 (APA)…. The APA threshold must be met before a court can rule upon the merits or substance of the policy or program sought to be modified.
During the 2016 campaign, P45 declared that he would eliminate DACA on “day one” in office. Despite the best efforts of a number of states, courts repeatedly upheld the program. Lower federal courts had issued a number of conflicting decisions, with those favoring DACA finding that legal assaults on the program failed because they violated procedures for rescinding government regulations, citing the Administrative Procedures Act of 1946 (APA).
The act was conceived by President Franklin D. Roosevelt as a measure to provide a procedural framework for the functioning of the powerful agencies created under his New Deal. At the same time, the APA was welcomed by Congress as a means also to restrain executive authority exercised from the White House and within agencies subject to the President. Some have characterized the APA as the constitution of administrative law defining protective guard rails within the central government. Among other things, it functions to ensure a consistency of agency process in the execution and exercise of stated missions, goals, and legislative authorizations.
Four main principles underlay the creation of the APA:
- to require agencies to keep the public informed of their organization, procedures, and rules;
- to provide for public participation in the rulemaking process, for instance through public commenting;
- to establish uniform standards for the conduct of formal rulemaking and adjudication; and
- to define the scope of judicial review.
Congress also included a provision for judicial review by the courts to ensure that the conduct of federal agencies was consistent with these principles in the formation, revision, or rescission of agency rules and regulations. Over time, the judicial criteria to evaluate agency actions developed, requiring that agency actions not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Thus, presidential initiatives based upon political campaign promises or commitments often face the hurdles of the APA.
The APA threshold must be met before a court can rule upon the merits or substance of the policy or program sought to be modified. In the recent DACA decision, Chief Justice John Roberts was joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. The minority Justices generally agreed with the administration’s brief.
“We conclude that the acting secretary [of the Department of Homeland Security] did violate the [Administrative Procedure Act],” and that the decision to rescind DACA “must be vacated,” Roberts wrote. In his decision, Roberts called the Trump administration’s “total rescission” of DACA “arbitrary and capricious.”
SCOTUS does not appear to be susceptible to a color scheme nor to accusations of “politically charged” rulings. While “shotgun blasts” are metaphorically unrestrained images, the Court’s ruling in this case seems very traditional, even conservative and restrained. Taking the decision personally, as P45 has, may be music to the ears of supporters but flops when examined in reality. In Roberts’ words, the decision was literally black and white.
Like many of his rants, P45 is mistaken as to the nature of the deep state and its color. The administration’s frustration with SCOTUS and its recent decision to affirm lower court decisions preserving DACA is a prime example of the President’s conflating of rationale with emotional and political satisfaction.
P45 has railed on dozens of occasions against the deep state, essentially casting it as blue and Democratic. Like many of his rants, P45 is mistaken as to the nature of the deep state and its color. The administration’s frustration with SCOTUS and its recent decision to affirm lower court decisions preserving DACA is a prime example of the President’s conflating of rationale with emotional and political satisfaction. Expressing his displeasure, P45 tweeted:
These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.
VoxFairfax has not created a truthometer feature to gauge or rate political statements. Notwithstanding, in this case the conclusion is that the claims of P45 are in error. Validating the opinion that the deep state is other than blue, Newt Gingrich tweeted on July 3rd of reports that a substantial number of “deep state Republicans” were committing to cast votes for Biden. Never Trumper Republicans are increasing in numbers while others are actively launching well-funded and organized campaigns against the incumbent. Once called RINOs, those within the inner circle now characterize these outliers as Vichy Republicans.
More than a year ago, VoxFairfax cruised the protean underworld of the deep state (Voyage to the Deep State; 03/03/2019; https://wp.me/p9wDCF-nl), returning to the Novahood without incident or injury.