THE AMERICAN DEEP STATE.

• Author: Michaels, Jon D.
• Position: Symposium: Administrative Lawmaking in the Twenty-First Century

INTRODUCTION 1653 I. WASHING ONTO AMERICA'S SHORES 1655 II. THE DEMOTIC DEEP STATE 1657 A. Not Elitist 1658 B. Not Shadowy 1659 C. Not Monolithic 1660 D. A Bulwark, Not a Battering Ram 1663 E. Not an Extraconstitutional Force 1664 III. A KINDER, GENTLER DEEP STATE 1666 IV. A DEEPER DEEP STATE 1667 A. Insource Privatized Responsibilities 1668 B. Safeguard the Civil Service 1669 INTRODUCTION

Whether cast as insidious or cast aside as fictitious, the American "deep state" is an increasingly compelling concept in the Age of Trump. In a year's time, a label that had practically no domestic resonance has been elevated to the status of public enemy number one. Indeed, when things have gone badly for the Trump administration--as they often have--the President, his allies, and White House surrogates have been quick to blame the deep state. Such a deep state, characterized by Team Trump as disloyal and undemocratic forces within and around government, (1) has served as an all-purpose scapegoat, diverting attention from the mounting evidence of White House corruption and incompetence, demonizing and delegitimizing critics of the administration, and jeopardizing the long-term health and vitality of the federal bureaucracy and myriad pillars of civil society.

New to the United States, (2) the concept of a deep state has considerable transnational purchase. Usually any mention of a deep state conjures up images of shadowy and powerful antidemocratic cabals that threaten popular rule. For good reason, one may look at some precariously (or simply nominally) democratic countries' militaries, key ministries, and state-owned industries with trepidation. Close observers of places like Egypt, Turkey, Pakistan, and Iran have witnessed enough crackdowns on free speech and assembly, electoral subversions, and rollbacks of good governance reforms to know how that movie ends. (3)

This Article, written for the Notre Dame Law Review Symposium on Administrative Lawmaking in the Twenty-First Century, considers the notion of bureaucratic depth and what it means in the American context. In what follows, I argue that the American deep state has very little in common with those regimes usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial incentives or caste proclivities to subvert popular will; that demotic bureaucratic depth of the American variety should be celebrated, not feared; and that, going forward, we need greater, not lesser, depth insofar as the American bureaucracy serves an important, salutary, and quite possibly necessary role in safeguarding our constitutional commitments and enriching our public policies.

1. WASHING ONTO AMERICA'S SHORES

   In response to the recent barrage of claims of a nefarious American deep state, most mainstream media outlets have treated such assertions--and the corresponding transnational comparisons--with the usual mixture of bemusement and outrage that marks professional reporting of the Trump presidency. To be sure, some commentators have gone further, strenuously shooting down cross-national comparisons to moneyed and mighty cliques as misleading and dangerously inflammatory. (4) Others, however, have gotten caught up in the frenzy, seemingly conflating bureaucratic depth with plutocratic government and any number of other grievances and fears, real or imagined. (5)

   Given the mood of the nation, there is good reason to reject the very premise of an American deep state. This is especially true so long as the concept serves primarily as fodder for conspiracy mongering and as fuel for the domestic culture wars. (6) Yet such wholesale rejections come at the expense of accuracy, nuance, and opportunity. In truth, we do have--and have long enjoyed--bureaucratic depth. And Donald Trump, more than any other President, has brought into relief its legal and political raisons d'etre.

   Broadly speaking, prior to 2017 our deep state has simply been referred to as our state. At its center--and at the center of the instant political maelstrom--is the vast expanse of federal administrative agencies. These entities are responsible for making and enforcing regulations, designing and running welfare programs, combating crime and corruption, and providing for the national defense. (7) our deep state also includes the personnel entrusted with the day-to-day operations of those agencies. (8) Principal among them are federal employees (9)--though we ought not forget the legions of private government contractors, (10) state and local officials, (11) and members of civil society who play any number of key, supporting, and contrarian roles when it comes to matters of administrative design, implementation, and oversight. (12) Drawing on their own sources of legal authority, professional credibility, and, occasionally, populist bona fides, and regularly functioning at some distance from the elected leaders in the White House and Congress, federal bureaucrats are a force to be reckoned with. (13) This is particularly true in a modern, complex political economy such as ours, which is seemingly far more dependent on the hundreds of thousands of expert administrators and field agents than on a few hundred lay legislators and a single chief executive.

   Much has been made of contemporary bureaucratic resistance, which some frame as subversive. Yet federal bureaucrats generally can be counted on to support and advance the President's programmatic goals. They do so out of deference, not docility, with the practical effect that Presidents enjoy considerable but not unbounded leeway. in those rare instances when Presidents (and their hand-chosen agency heads) go beyond the proverbial pale, those in the civil service are particularly well positioned to challenge, and even resist, directives lacking a scientific, legal, or commonsense foundation. (14)

   For instance, the career workforce in regulatory agencies can continue--defiantly, but lawfully--to enforce civil rights laws and health and safety regulations, leak information, drag their feet on the implementation of new but tendentious or insupportable orders, and produce reports useful to any number of audiences, including Congress, judges, the media, and civil society. (15) Likewise, career diplomats and military and intelligence officials can point to longstanding treaties, bilateral agreements, international law, the laws of war, foreign aid appropriations, and extant, long-term projects to justify ongoing cooperation and to provide assurances of continuing support and engagement even during times of jarring political transition and programmatic upheaval at home. (16) Lastly, any number of agency officials may use the authorities granted to them as whistleblowers, inspectors general, and the like to investigate, document, and publicize instances of high-level government malfeasance, suggestive of either venality or run-of-the-mill incompetence.

   To be clear, these bureaucratic officials are emboldened to speak truth to power because most of them are civil servants, insulated by law and custom from politics and owed what in effect amounts to job tenure. (17) They are further emboldened to speak truth to power because that is what's expected of them, both as professionals--lawyers, economists, scientists, and the like-and as loyal and faithful stewards of the laws, regulations, and conventions of the United States. (18)

2. THE DEMOTIC DEEP STATE

   Conceding the existence of an American deep state does not commit us to accepting its toxic transnational connotations. That is surely the intention of the current President, his surrogates, and some especially strident critics of the American administrative state. (19) But just as national governments come in many stripes of varying degrees of legal and political legitimacy at home and abroad, so too do their respective bureaucracies and ministries. As such, comparing the American bureaucracy to that of Egypt or Turkey or Pakistan may be just as unilluminating as comparing the respective constitutional systems: in both contexts, the cross-national gap couldn't be wider.

   Specifically, unlike the deep states of popular lore, the American version is:

   1. Not Elitist

      U.S. domestic and national security bureaucracies are hardly bastions of privilege. American bureaucrats are, after all, drawn from a far greater set of schools and family backgrounds than is generally the case in Western Europe, where Oxbridge and Ecole Nationale d'Administration graduates have historically predominated (20)--let alone in Asia or the Middle East, with its clannish, cliquish ministries and state-owned enterprises, control of which may be a family affair and a remunerative one at that. (21) instead, American bureaucrats, even those serving in such prestigious redoubts as the State Department, are decidedly middle or upper-middle class, lacking the cultural or caste proclivities or financial incentives to deviate particularly far from median voter sentiments or statutory obligations. (22)

      One can push this claim further: the American bureaucracy is arguably even more demotic--and more in tune with median voters--than are our elected legislatures, which are increasingly populated by economic, educational, and dynastic elites. There were, in recent years, approximately 228 millionaires in the House--that's more than half of all representatives to the People's chamber; and there were seventy-two millionaires in the Senate. (23) Around this time, no fewer than twenty senators were graduates of Harvard or Yale. (24)

      By contrast, federal civil servants earn on average around $80,000 a year, and only about half are graduates of any four-year college. (25) What's more, federal bureaucrats tend to serve their entire careers in government, meaning they have not had the opportunity, occasion, or intent to amass wealth...