By Frank F Islam & Ed Crego, March 3, 2024 (Image credits: Tom de Boor, Adobe, Dreamstime, et al)

In January, the Supreme Court heard arguments in two cases which could result in a decision that would severely reduce the scope and regulatory authority of federal government agencies.

Such a decision would imperil the effectiveness of the federal government. That effectiveness is already imperiled by actions taken during the Trump presidency as well as the changing attitudes of the general public regarding the federal government.

If Donald Trump is successful in his re-election bid, the federal government would be thrust into an even more perilous state. Federal government imperilment is not good for this nation or its future.

The Contributions of the Federal Government

This is so because, through the centuries, the federal government has played an inextricable role in forging this democracy and country.

In his masterful book, The Laws that Shaped America: 15 Acts of Congress and Their Lasting Impact, Dennis Johnson, professor emeritus at George Washington University, states:

What guided me in selecting these fifteen laws was the answer to this simple question, “Where would we be without this law?” How would America’s elderly fare without the security of health care and social insurance? How congested and dangerous would our surface transportation system be without the backbone of the interstate highway system?

We would add to Professor Johnson’s questions how would any of this been possible without the federal government agencies that developed the policies and programs essential for implementing those laws effectively and efficiently?

We would also add the items from the list of 50 Ways Government Works for Us put together for Public Service Recognition Week. They include:

• Social Security payments help 51 million Americans.
• College loan programs help millions who might otherwise not be able to afford higher education.
• Medicare provides government health care for seniors.

(Click here to see the entire list and to gain insights into the significant differences that government work and government workers make for America and Americans today.)

Add all of this up and the contributions of the federal government to America and Americans become almost incalculable. In spite of this, the federal government in 2024 is more imperiled than it may have ever been in history.

In the following sections of this blog, we examine the federal government’s imperilment situation beginning with the Supreme Court’s pending decision regarding government’s regulatory powers.

The Potential Supreme Court Imperilment

A Supreme Court decision to reduce or restrict the regulatory authority of federal government agencies, would reverse a Supreme Court decision made in 1984, which established the Chevron Deference Doctrine.

According to Cornell Law School,

“The Chevron deference is referring to the doctrine of judicial deference given to administrative actions…The scope of the Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency.”

The Chevron deference has empowered federal administrative agencies to write the policies, procedures, and regulations implementing congressional legislation for the past forty years with limited involvement or interference from the judicial system. Now, as it did with abortion and affirmative action, the Supreme Court could modify the rules of the game to give courts the upper hand.

Whether the Supreme Court will do that is still to be determined. In an opinion essay for the New York Times, Jody Freeman and Andrew Morgan, lawyers at Harvard, suggest that “at least four members seem prepared to do so.”

They make it clear in their piece that they are not in favor of “overturning the well-established Chevron framework,” explaining that this “would invite litigation over virtually every decision, big and small, that agencies must make in their day-to-day work, decisions that are in part legal but also call for expert policy justice.” Freeman and Morgan urge the Court not to overturn Chevron “out of respect for precedent and judicial humility.”

Devon Ombres, Jeevna Sheth, and Sydney Bryant of the Center for American Progress do a good job of detailing the consequences if the Supreme Court decides to ignore precedent and displays no humility. In an article, they furnish links to fact sheets which “provide just a small sample of the benefits and protections, across various sectors and areas of life, that agencies provide the American people through regulations.”

The “small sample” outlines the extensive negative impact of reducing or restricting federal agency involvement in developing and enforcing regulations. It indicates the damage to the American people that could be done by Supreme Court decisions that add insult to the injury done by the Trump administration during Trump’s tenure as President.

The Trump Administration Imperilment

Donald Trump came into the office of the President vowing to reduce the size of the federal administrative state (or the “deep state” as he called it.) During his tenure as President, the size of the federal government civilian work force actually grew by 4%.

This was the case because while there were substantial reductions in the number of employees in several agencies during the Trump administration, a few agencies increased significantly in the number of employees.

In an article published on February 1, 2021, shortly after Joe Biden assumed the presidency, Emily Badger, Quoctrung Bui and Alicia Parlapiano of the New York Times documented Trump’s impact upon federal agencies.

In their article, they reported that the agencies which gained employees were: Treasury, Defense, Homeland Security, and Veterans Affairs.

By contrast, by 2020, there were 300 fewer employees at the Department of Labor; 1,800 fewer at the Department of Labor, and 4,900 fewer at the Department of Interior than when Trump came into office.

Badger, Quoctrung, and Parlapiano report that “in sheer numbers, particularly for domestic-focused agencies like the departments of Education and Housing and Urban Development, Mr. Trump didn’t drive as much attrition as across-the-board budget caps known as sequestration did.”

They go on to observe,

But researchers, union officials and federal workers say President Trump’s politicization of normally neutral positions and frequent criticism of his own bureaucracy hurt the public’s faith in government, the morale of employees who remain, and the prospects that a new generation will enter public service.

As we noted in a blog posted in 2021, one of the contributing factors to the drop in morale were dramatic changes in agency policies, practices, and positions on issues made by the Trump appointees chosen to head those agencies. Another contributing factor to the drop in morale during the Trump presidency was turnover of his Cabinet heads.

The Public Perception Imperilment

The federal government has never been the favorite or most favorably rated form of government. Historically, state and local governments have always ranked higher.

In a 2022 study of Americans’ attitudes regarding government, the Pew Research Center found that 32% of those surveyed had a favorable opinion of the federal government, compared to 54% for their state government and 66% for their local government.

That study also found that in this politically polarized nation, the feelings regarding the federal government depended on who was in office as President. When Trump was President in 2019, 41% of Republicans/Lean Republican had a favorable opinion of the federal government versus 26% of Democrats/Lean Democrat. With Biden as President in 2022, 49% of Democrats/Lean Democrat had a favorable opinion versus only 13% of Republicans/Lean Republican.

Regardless of who was in office, in 2022, the Pew survey respondents had a low level of trust (20% total: 29% Democrat/Lean Democrat versus 9% Republican/Lean Republican) in the federal government to do the “right thing just about always/most of the time.”

Majorities of those surveyed said the federal government should play a major role in a number of areas. At the top of that list were:

• Keeping country safe from terrorism
• Managing the U.S. Immigration system
• Ensuring safe food and medicine
• Responding to natural disasters

But there were numerous differences by party orientation in terms of whether the government “should play a major role” versus “should play no role” in many other areas. The widest “partisan gaps” were on “poverty, health care, and the environment.”

These differences by party orientation also showed up in “large gaps between the public’s views of the government’s roles and whether it was “doing a good job” in performing those roles.”

This polarized and divided partisan nature of the American citizenry is not of recent origin. It can be traced back nationally to the emergence of the Tea Party movement in 2009, and in other locations across the country before then.

The Pew Research Center begins a report on polarization and partisanship issued in June 2014 by stating: “The overall share of Americans who express consistently conservative or consistently liberal opinions has doubled over the past two decades from 10% to 21%.”

The majority of that doubling occured after 2004, particularly during Barack Obama’s years in office. Trump’s presidency intensified the polarization and widened the divide, and his ongoing perpetuation of the Big Lie, in conjunction with the noise of right-wing conspiracy theorists, continues to contaminate the public perception of the federal government.

The Potential Trump Re-election Imperilment

Which brings us to 2024, a year in which the re-election of Donald Trump would imperil the future of our American democracy and the world order.

The Authoritarian Playbook for 2025, a report prepared by Protect Democracy, a nonpartisan anti-authoritarianism group, identifies and provides an extensive analysis of the following six major threats that Trump would bring in a full-out assault on the federal government if he returned to office:

• Issuing pardons to those who have broken the law
• Using the Department of Justice to investigate opponents or critics
• Politicizing federal regulatory agencies
• Using the Department of Homeland Security as a domestic police force
• Deploying the U.S. military domestically
• Refusing to leave office when his term is up

An attack on civil service employees would be at the heart of the imperilment of federal government agencies.

In his December 12, 2023 commentary for the Brookings Institution, Donald Moynihan, McCourt Chair of Public Policy at Georgetown University, observes that Trump has made implementing Schedule F “a central feature of his re-election campaign as part of his effort to take control of ‘the deep state.’” Schedule F would convert career civil service positions to jobs for political appointees of the President. Trump first advanced the Schedule F concept in an Executive Order on October 21, just two weeks before the 2020 election.

The President currently has the right to name approximately 4,000 political appointees to serve in the executive branch of government. Schedule F would increase that number to 50,0000. The argument for doing this is that it would make the federal government more accountable and responsible to the President and the people and enhance its performance.

While that argument is persuasive to those from the conservative side of the aisle, there is no evidence to support it. In fact, the opposite is true.

As Donald Moynihan points out in his Brookings piece, research “shows that political appointees tend to be found at ideological extremes on both the right and the left, while career officials tend to be moderate.”

After citing research that revealed diminished accountability and responsiveness in politicized U.S. governmental agencies, Moynihan states, “The research I described occurred under relatively normal presidential administrations. Given the explicit hostility of Trump and senior advisers, and the scale of their proposed politicization, the actual outcomes in terms of performance and accountability are likely to be a good deal worse.”

In summary, there is little doubt that that Trump’s return to office would be debilitating for the federal government. It would not eliminate what he has called the “deep state” or “drain the swamp.” What it would do is make that deep state deeper and murkier and swamp waters impenetrable and unnavigable.

Bolstering the Federal Government

Given the foregoing sources of imperilment, what can be done to strengthen the federal government and enhance its performance?

Before addressing that question, let us say that federal government agencies and those people who work in them as employees are not perfect — far from it. We think those governmental bureaucrats would admit this as well, and be the first to step forward and participate in improving their performance.

That said, there are many actions that could be taken to bolster the capacity of the federal government. At the top of our list are: a citizen initiative, a congressional initiative, and a civil service initiative.

Citizen Initiative

The citizen initiative is the most important action. It is one that absolutely must be taken in order to eliminate the greatest risk to the future of competent federal government agencies. That risk is the former President who, if he is re-elected, has confessed that he will be a dictator on day one.

Although Trump did not state it explicitly when he made this confession, part of his dictatorship would be destroying the independence of federal agencies, making them accountable and responsible to him and him alone. As we stated in our earlier blog, concerned citizens who understand this existential threat must step forward to protect our American democracy by voting and getting civically engaged to ensure Donald Trump is not elected President in 2024.

Congressional Initiative

Those citizens can also help to elect congressional representatives who are willing to legislate and put the country and not their personal interests first. This is important because there is a need for Congress to update the country’s civil service system.

Donald Moynihan advances this recommendation in his Brookings Institution commentary, stating “that the last major revision of the civil service system was in 1978 with the Civil Service Reform Act.” He concludes his piece by declaring “It is past time that Congress offers a moderate and bipartisan modernization to the civil service to reflect the reality of today’s workforce, while limiting the large-scale politicization that proponents of Schedule F are seeking.”

We concur with Professor Moynihan’s assessment and recommendation. There is a major problem, however. It is that the current Congress has been the least productive in the history of the United States. “Moderate and bipartisan” have become dirty words. For thoughtful and meaningful changes to be made in the civil service system, we need changes to some of those sitting in the seats of Congress. We need congresspeople who are willing to listen to each other and to work together to legislate rather than to pontificate.

Civil Servants Initiative

Even though there has been no major civil service reform since 1978, there has been good work done, dating back to the Clinton administration (1993–2001), to improve the performance of the federal government.

Based upon our analysis of that work and the results achieved, we put forward two recommendations that we first proposed in our book Renewing the American Dream: A Citizen’s Guide for Restoring Our Competitive Advantage (Renewing), published in 2010, that are still relevant today.

• Have each federal government agency conduct a zero-based organizational assessment and develop a strategic blueprint to become a high-performing organization.
• Implement a government-wide operational excellence initiative with maximum feasible employee involvement.

These recommendations put the authority and responsibility for improving each agency’s performance into the hands of its civil service executives, managers, and staff. We go into some detail on how to implement these recommendations in the chapter on the government in Renewing, titled “Government is Not the Problem.”

It was not the problem then in terms of the conditions in the United States in 2010. And it is not the problem now in 2024.

Government agencies need to and should improve, but they should not be blamed for issues they cannot and do not control. They should be empowered to be better partners and problem-solvers in their areas of responsibility.

To do the contrary, by subjugating them to the unreasonable control or decisions of the President, the Supreme Court, or Congress sacrifices professionalism for politics. It would also move our progress made as a nation toward a more perfect union backward rather than forward.