Firing the Deep State
Irate over plummeting stock prices in recent weeks, the media reported that President Trump wanted to fire his appointed Fed Chairman Jerome Powell. But can he really fire him? It turns out that the law is murky in this area. Trump can fire Powell, but only “for cause.” And that only means if Powell committed a crime, conducted himself unethically, or mismanaged the Fed. Trump can’t necessarily fire him for policy differences – at least it’s never been tried.
The fact is President Trump can’t say “You’re fired!” to thousands of government officials who in theory work for him, but in practice are a fourth branch of government. These unelected bureaucrats are appointed by the President and confirmed by the Senate, but they and their staffs are accountable to neither branch, and therefore not to the people. The Founders must be rolling in their graves.
When Nancy Pelosi famously said that we need to pass Obamacare so that we can find out what’s in it. Joseph Postell of the Heritage Foundation pointed out that she “wasn’t referring to the length of the bill. Rather, she was referring to the fact that most of the laws — such as the infamous Health and Human Services (HHS) requirement that all insurance providers cover contraception — would be made by HHS, and not found in the statute that Congress was passing.” It was the Little Sisters of the Poor and others who fought it all the way to the U.S. Supreme Court.
Closer to home, there’s the case of Napa Valley Unified School District. The bureaucrats at the U.S. Fish and Wildlife Service have sole discretion to decide which species are “endangered” or “threatened”, and jurisdiction over their “critical habitats.” Napa Valley Unified wanted to build a high school and later a middle school, but the schools got in the way of the California red-legged frog. In “negotiations” with the Fish and Wildlife Service, the school district was forced to purchase more than 300 acres of land at a cost of $4.6 million to secure the project’s approval. Truly — it’s bureaucrats gone wild.
How did unelected, un-fire-able bureaucrats become so powerful? It’s largely Congress’ fault. Over the last 100 years, Congress has slowly given away its lawmaking responsibility by passing broad laws with vague aspirational aims, leaving the bureaucrats to fill in the details. The same goes in California, most famously with the unelected bureaucrats at the state Air Resources Board have been given nearly-unchecked powers to enforce the state’s new global warming laws.
And as we all know, the devil is in the details. Congress uses the bureaucrats to give them cover from the voters’ wrath, leaving voters confused as to who is to blame. State lawmakers do the same thing as the Air Resources Board uses their AB 32 powers to increase energy poverty for many Californians.
Reversing the damage to our Constitution will take years if not decades of case by case court challenges. Thankfully, we have great lawyers fighting this cause, including our colleagues at the Pacific Legal Foundation (PLF). Last year, PRI recorded a podcast interview with Todd Gaziano of PLF on the “administrative state.”
Whether it’s on policy differences or personality clashes, a President (or a Governor) ought to be able to fire anyone in the executive branch. It’s what the U.S. Constitution and the Founders intended. And it’s the only way that government can be fully accountable to the people.
Rowena Itchon is senior vice president of the Pacific Research Institute