"A Rather Curious Distortion of Our Constitutional Structure": The Powerless Imperial President, Monarch and Eunuch

If you’ve brushed up against any news or social media in the last week, you’ve heard that we’re living through a constitutional crisis. But let’s go looking for the details.

Via Laura Powell, the ACLU warned in a recent letter to the leaders of the congressional oversight committees that President Donald Trump is violating American political norms by threatening to lay off federal employees. Here’s the substance of their complaint: “Not only would such mass layoffs violate federal law, but this action would undermine the important and historic check that the career civil service has had on curbing abuses by the executive branch.”

The civil service, the ACLU argues, restrains the power of the President of the United States. In our system of checks and balances, government employees serve as a check on the president. They’re like his boss, keeping him inside the guardrails and controlling his behavior. Meanwhile, at the risk of repeating myself, here’s how Article II begins: “The executive Power shall be vested in a President of the United States of America.”

The ACLU keeps doing this. Here’s their letter demanding that Congress “conduct oversight on DOGE,” a reasonable expectation framed in ludicrous terms. Here, let’s use a screenshot:

Again, American political norms supposedly limit presidential authority over the operation of the executive branch, placing “career civil servants” in the highest and final positions of authority. Government is to be run by agencies; the president is to watch from a respectful but impotent distance, as the agencies make sure he carries out the laws. The role of bureaucrats and bureaucratic protocols is to “ensure” the president’s course of action. They drive; he rides.

This is not the American system of government. It’s not the Constitution. It inverts our political system, placing the top at the bottom. “The executive Power shall be vested in a President of the United States of America.” That’s what they’re arguing against.

Americans have argued for years — for decades — that we’re developing an imperial presidency, and I agree with the premise. But the lol wut part of that story is that the imperial president who we now often describe as the person who “runs the country” also doesn’t really run the executive branch. Our political norms have become severed from our Constitution.

Also via Laura Powell, who you should follow if you have an account at I-still-call-it-Twitter, here’s what the 5th Circuit said about the strange decline of presidential authority after part-time figurehead President Joe Biden casually issued a mandate for all federal employees and contractors to receive mRNA injections, a move that the people calling Trump a dictator didn’t mind at all. (It didn’t work.) Apologies for dropping a massive block quote on you, but I think it rings every bell that currently needs to be rung, and you’ll find a solid half-dozen phrases in here that make you nod at how familiar this all turns out to be:

In reality, however, the President actually controls surprisingly little of the Executive Branch….

Federal civil service laws make it virtually impossible for a President to implement his vision without the active consent and cooperation of an army of unaccountable federal employees. And that presents a rather curious distortion of our constitutional structure. The Constitution requires the President, the Vice President, and every member of Congress to stand for re-election if they wish to continue holding federal office and exercising federal power. Meanwhile, countless Executive Branch employees have the ability to influence or implement federal policy in their capacity as subordinates of the President—yet they enjoy a de facto form of life tenure, akin to that of Article III judges….

It's a phenomenon that legal scholars have identified (and decried) for decades. "The critical fact of civil service today is that covered employees are rarely discharged from government for inadequately doing their jobs. The civil service system has provided the equivalent of life tenure (at least until retirement) once a brief probation period is passed, absent what the government considers a serious act of misconduct."

….Not surprisingly, these "tenure-like protections for the civil service have sharply reduced the president's ability to change the direction of the permanent bureaucracy." John Yoo, Unitary, Executive, or Both?, 76 U. CHI. L. REV. 1935, 1956 (2009).

What's more, federal employees know it—and they take full-throated advantage of it. As anyone who has ever held a senior position in the Executive Branch can attest, federal employees often regard themselves, not as subordinates duty-bound to carry out the President's vision whether they personally agree with it or not, but as a free-standing interest group entitled to make demands on their superiors. See, e.g., Philip K. Howard, Civil Service Reform: Reassert the President's Constitutional Authority, THE AMERICAN INTEREST, Jan. 28, 2017 ("The slow dissipation of presidential power is a story rich with irony—designed to avoid interest group capture, the civil service became its own special interest.")….

Indeed, one scholar has pointedly noted that the single "biggest obstacle" for any President "is not the separation of powers" designed by our Founders, "but the millions of federal employees who are supposed to work for him."

Nailed it, yes? “Federal employees often regard themselves, not as subordinates duty-bound to carry out the President's vision whether they personally agree with it or not, but as a free-standing interest group entitled to make demands on their superiors.” We’re seeing that all day, every day, everywhere, in the constitutional crisis of the President of the United States trying to run the executive branch.

The imperial presidency is malign, a phenomenon that arguably started with Woodrow Wilson (and metastasized in this century), and the balance of our political system is poor. Congress is functioning as about 20% of a branch of government, and the resulting vacuum is a problem. We should debate all of that, and we should address it. But the administrative state — the deep state, the free-standing interest group that thinks it’s entitled to run the country without interference — is Frankenstein’s monster, and Trump (and Musk) are trying to turn it back into a subordinate part of the branch it belongs to. The moment is complex and historically rooted, and Donald Trump’s actions are both much more layered and much more consequential than the garbage news media coverage would suggest.

The hysterical idiots bleating crisis language at your amygdala are a screen that prevents us from seeing the whole show. And they’re demanding more hysteria. What we need is more analysis, more insight, and more historical context. These events are too important to be distorted by the fools who are covering them.