December 7, 2017

DEEP STATE UPDATE: #Resistance and the Crisis of Authority in American Politics.

When Leandra English, former chief of staff to the former director of the Consumer Financial Protection Bureau, asked a federal judge to block President Trump’s appointment of Mick Mulvaney to replace her departing boss Richard Cordray, and to install her as the CFPB’s rightful leader, Judge Timothy J. Kelly of the Federal District Court in Washington, D.C., denied her request. Yet English’s legal team, rejecting the idea that President Trump held the directorship in his hands pursuant to the Federal Vacancies Reform Act of 1988 and Article II of the Constitution, has since vowed to continue its resistance to the President’s action.

Regardless of what happens next in the CFPB matter, this episode illuminated a crisis of authority pervasive in American politics today. The dysfunction it laid bare tells us that we have forgotten what authority means and are thus no longer capable of identifying where it resides in our political system. The result is a post-political order that delegitimizes conflict and undermines the institutions on which we depend to resolve disagreement and forge compromise in a pluralistic society.

Related:

Administrative employees are nominally subject to the control of those appointed by politicians who have won elections, but Democrats embedded in the federal bureaucracy have proclaimed themselves part of the “resistance” to President Trump, and are using their positions to undermine his administration. Bureaucrats thus frustrate the will of the voters. President Trump has been in office for nearly a year, and has yet to take control over the federal bureaucracy that nominally reports to him.

I agree with Professor Barnett that this is a constitutional crisis. The most powerful branch of today’s government is the Fourth: the permanent federal bureaucracy that is nowhere mentioned in the Constitution. The Trump administration can best be viewed, perhaps, as a struggle to the death between American voters and the federal employees who are paid to serve them.

This is a much more dangerous situation that most people appreciate, I think.