The Deep State and the Rule of Law

Despite the nefarious character attributed to the deep state, especially by the current administration, a closer examination of the concept reveals that, for good and sufficient reasons, there is a positive aspect to it. P45 entered the governing scheme of the nation as something of an iconoclast (or at least a political outsider) and brought with him personnel such as Steve Bannon, with a reputation for deconstructing government organization.

In June 2018, Civics Nation observed:

There is mounting evidence that the White House is running a so-called chaos strategy: using “conflict to create a constant state of destabilized perception, in order to manage and control.” Anyone who observed not only the Trump campaign but the Trump presidency can see this at work. The president’s tweets can destabilize and steal headlines, not only in the U.S. but in countries around the world. As Vanity Fair put it, “[President Trump] is the Distracter in Chief, a decoy in the bully pulpit whose self-perpetuating charade provides the perfect cover while shadier actors systematically transmogrify the democracy concealed in his prodigious shadow.” And who is the architect of President Trump’s chaos strategy? None other than Steve Bannon, chief executive of the Trump campaign and former White House Chief Strategist.

Pursuit of a chaos strategy requires, among other things, ignoring and flouting political convention, even law.

Pursuit of a chaos strategy requires, among other things, ignoring and flouting political convention, even law. The orderly processes of government and the conduct of its business demand continuity which, in turn, is often entrusted to the bureaucracy or civil service, as well as the good will of elected leadership. One such legislative effort in this vein is the Federal Vacancies Reform Act of 1998. The act provides rules for the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation. Under the act, an acting officer may serve in a vacant position for no longer than 210 days, with adjustments to be made if the President submits a nomination to fill the position.

The Federal Vacancies Reform Act of 1998 . . . provides rules for the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation. Under the act, an acting officer may serve in a vacant position for no longer than 210 days. . . . The Constitutional Accountability Center has identified 15 temporary executive appointments that exceed the 210-day provision.

The Constitutional Accountability Center has identified 15 temporary executive appointments that exceed the 210-day provision. Two of the more visible individuals continuing to serve are Chad Wolf (Secretary of Homeland Security) and Kenneth Cuccinelli (head of the US Citizenship and Immigration Service). In March of this year, a federal judge for the US District Court in Washington, DC, declared Cuccinelli’s service unlawful. In August, the Government Accountability Office (GAO) found Mr. Wolf to be serving unlawfully.

There are reasons that, despite P45’s success with Mitch McConnell and federal judgeship appointments, obtaining the advice and consent of the Senate for executive positions is another matter. Cuccinelli once led a super PAC that backed candidates challenging Republican incumbents, including McConnell. On its face, the purpose of the Reform Act is evident: to establish an orderly process of staffing federal agencies with policymakers who have support of the Congress. A second purpose is to ensure the orderly transition of duties and responsibilities to be executed by such personnel.

Alexander Hamilton wrote in the Federalist Papers that the requirement of Senate confirmation would be “an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”

If only it were so. Serving unlawfully in contravention of the Reform Act establishes a basis to challenge and overturn policies, orders, and directions that are produced by the temporary executives. It’s not difficult to appreciate that this situation is the very essence of chaos, especially for other staff within an agency.  The constituent publics served by those agencies are victims of questionable decisions by these unlawfully serving officials.

Ignoring the law and court decisions is yet another attack on the rule of law. There is nothing nefarious about the Vacancies Reform Act. It is one thread in the national fabric of government that, at worst, may run into conflict with presidential policies. It appears that the Act represents in the minds of some so significant an impediment as to create a rationale to contravene it.

Analogous to currently expressed concern about the peaceful transition of power following the November 3 election, the deep state requires a willingness to comply with the law and national values. The authors of the Constitution did not envision a deliberate intent to deform a more perfect union, ensure domestic chaos, or destroy the general welfare. They never met Donald Trump. Unfortunately, there is evidence that these goals are possible.

Analogous to currently expressed concern about the peaceful transition of power following the November 3 election, the deep state requires a willingness to comply with the law and national values. The authors of the Constitution did not envision a deliberate intent to deform a more perfect union, ensure domestic chaos, or destroy the general welfare. They never met Donald Trump. Unfortunately, there is evidence that these goals are possible.

Another disturbing consideration is the potential for these unlawful appointments to endure past the election of a new President until the January 2021 inauguration.  What mischief of agency functions may occur in their lame duck capacities?



Categories: elections, Issues, Local, National, RULE OF LAW

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