What the Hell is the Deep State Anyway?
For quite a few years now, I have been hearing frequent references to the “deep state”. As a former federal civil servant, it has always been a puzzling concept. The term is being largely being used by the ultra-conservative MAGA movement with former President Trump as it’s figurehead. Indeed, Mr. Trump’s promises to “demolish the deep state”. Some writers even capitalize the term into a proper noun.
Why Do We Keep Hearing About the Deep State?
It sounds like the title or plot of a book, movie, or yet another television series. Shadowy forces led by a grotesque bitter megalomaniac are trying to control the world and the heroes, through incredible violence graphically portrayed, foil their nefarious plot and save the world, country, neighborhood or themselves (most likely).
Gee, maybe instead of writing about science policy I should try scriptwriting. But I am not in the union…..
Obviously, these stories appeal to a wide audience, or the entertainment studios wouldn’t keep making them. I get that. Heroes and villains are not exactly new to storylines. I like a good plot of evil conspiracy foiled myself. And for several decades at least, the portrayal of government in almost every show is negative. It is the greedy, lazy, or evil people in some government-like entity that must be stopped by heroic individuals who just want to be left alone…..makes good television.
Unfortunately, it is easy and compelling to turn the fictional plot of thousands of stories into a (fictional) political message. “We, like the heroes you so admire, will fight for freedom from the secret and nefarious forces that loom over you and your family.” But is that really what government does? Not in my experience. But as Mr. Twain said, “the difference between fiction and non-fiction is that fiction has to be credible.” And it seems that to a significant fraction of the US population, the fiction of the “deep state’ is credible, but the reality of government is not.
Does the Civil Service Operate as a Deep State?
Not in my experience with the civilian agencies in government, (NB I don’t have experience with the National Security agencies) or policy advocacy or reading in history and current affairs. I worked as a scientist in NOAA, as a frontline regulatory official, and as policy analyst.
For scientists that may not do their work in direct connection to the policy process, it may not be obvious that the mission agencies like NOAA, EPA, Department of Interior, Transportation, Energy and many others strictly make regulatory decisions based on their legal mandates from Congress. That is, unless regulatory authority is delegated by statute then an agency can’t proceed. Why? Well, that is what their mission is. And, because if they did try, the chances of a regulatory policy surviving legal challenges, that are inevitably filed opposing every regulation, would be miniscule.
That’s called separation of powers and checks and balances—the core of the Constitution. It is supposed to work and usually does, regardless of who the favored political leaders are at any given moment.
Cases in point. During the Trump Administration, in agencies like the EPA and Department of Interior, political appointees tried to push forward with major deregulatory efforts that conservative groups had been calling for. And they failed most of the time. Because, unusually for most federal lawsuits against agency action, the government often didn’t prevail in court. That wasn’t the agency “deep state” it is because the statutory mandates weren’t being followed.
A Good Story is Often Still Fiction
As a civil servant, I was responsible for working for the agency's mission and implementing the statutory mandates set by Congress. Agencies hate to lose lawsuits, and government lawyers, almost invariably in my experience, advise caution in advancing regulations to adhere as closely as possible to the statutory mandate. That’s their job and was mine. Did we get it wrong sometimes? Sure. It is a judgment call about how to best achieve the mandate, and no one, including judges, constituents, businesses, interest groups, or agency personnel, is “right” because there is no perfect demonstrable answer. Of course, all of those people and the general public often think their view is the only possible one – and I am as guilty of that as the rest!
So, to answer the question, no, the civil service operates as the implementing arm of government – ALL THREE BRANCHES. It has to and is continuously challenged in doing so. It is the nature of the job of regulation that everyone is sure they could do it better. It is the nature of being in a regulatory policy position that you are yelled at by members of Congress, political appointees in the Department, federal judges, constituents, sometimes your own agency scientists, and so on. If you can’t withstand negative feedback, it’s not the job for you….
But if you care about getting something done, it is exactly the job. After all, Congress doesn’t implement policy, they just tell you what your mandate is to do something. And the judges don’t implement policy, they just tell you if what you did conforms to the statute and the constitution. And the interest groups and industry don’t implement policy either, they just try to tell you to be tougher or less tough or explain to you what Congress meant. Even the scientists don’t implement policy. They tell you whether they think it will work or not. And so on.
How can anyone seriously think there is a “deep state” in that setting? I couldn’t even take lunch or a bathroom break without a calendar entry, and I was supposedly sneaking off to secret evil meetings?
I know! When I was NOAA’s Regional Administrator for Fisheries, I used to walk my dog Woody at noon every day he came to the office. Maybe Woody was really running the show…. Twitching his right ear meant I should target certain fishermen or his left ear a different gear group. Scratching his ear meant, “damned if I know”.
If Demolishing the Deep State is the Goal and it Doesn’t Exist, What’s Going On?
If I am right and there isn’t a deep state in the civilian agencies, why has this become such a central focus of conservative politicians led by Mr. Trump? Well, it is a good story and punchline. I can’t deny that. But is there something deeper? Is it like other punchlines, such as evil criminals flooding the border? Or a conspiracy by malevolent environmentalists to overwhelm the poor downtrodden oil and gas industry who only have our best interests at heart and barely have the money to keep going.
In my view, much of this is theatre. But not all of it. There is a long-term effort, arguably dating back to the Powell memo of 1971, to hamper regulatory agencies from restricting big business. Congress designed and mandated regulatory agencies to protect the public interest, including public health and trust resources. But public protections mean that industry must pay at least some of the costs of mitigating or compensating for the impacts of their profit-making activities. So, instead of dumping toxins into the air, they must remove at least some of the toxins. Instead of cheaply dumping waste into rivers or other areas held in the public trust, they must make their disposal practices safer and less impactful. And instead of the public bearing all the costs and losses due to private and government activities, the private corporations and companies and government agencies should find a way to cover or at least reduce those costs.
The memo from future SC Justice Powell urged industry, big industry, to “take back control” of government. And that strategy has been core to lobbying by industry for more than fifty years. That lobbying is called by “the real deep state” in the Atlantic (paywall).
But, Surprise!, I don’t think the lobbying industry is evil either. They are playing their part in a Constitutional Democracy. I think they might be too influential. I often disagree with their advocacy. I think more politicians should stand up to them and remember the public interest. But that’s just my opinion. I still think their role is important on all sides of many issues.
So next time you hear about the deep state, with cheering crowds and hateful rhetoric, take a deep breath. Remember that many of those civil servants are doing vital work for the public and do it patriotically, well, and with tremendous expertise that was years in the making. Those are some of the toughest jobs you can imagine. It’s not a movie; it’s real life.
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