On Trump's "deep state" attack plans and where they would lead in a second term

The conservative legal movement has long sought to rein in the administrative state. Trump's attack plans build on that — but also would eventually conflict with it.

In The New York Times on Monday, Georgetown professor Don Moynihan has an important opinion piece pulling together the discussion — in the Times and elsewhere — about the many ways in which Donald Trump and allies are planning to force government to bend to his will should he find his way into the presidency again.

As he begins, “I study government bureaucracies. This is not normally a key political issue. Right now, it is, and everyone should be paying attention.”

It’s a good, quick summary of what people should be thinking about — and, notably, it highlights how, in at least some of his plans, Trump is not alone.

Moynihan discusses Trump’s appointments plans — and how Trump is at least aiming to avoid his first-term “failure” of accidentally appointing a few people with a backbone or the ability to exhibit some independent judgment. He goes through “Schedule F,” the plan to convert tens of thousands of career civil service positions into political appointments. (Moynihan noted that Florida Gov. Ron DeSantis has similar plans.) Finally, he addresses Trump’s plan to just bulldoze through legal constraints within the executive branch.

This is an important discussion about Trump’s authoritarian aims.

At the same time, it’s also important to read Moynihan’s piece and think about how Trump’s plans build on and, in some important ways, would almost certainly eventually conflict with the conservative legal movement’s own efforts to take on their slightly-less-conspiratorial version of the “deep state” — the “administrative state.”

From the expanded use of the “major questions doctrine” over recent Supreme Court terms to the trio of administrative state issues being considered this term — the October arguments over the funding structure of the Consumer Financial Protection Bureau, Wednesday’s arguments over the Securities and Exchange Commission’s administrative law judges, and January’s forthcoming arguments over the future of the Chevron test for reviewing agency actions — the Supreme Court and its business-interests allies outside of the court are hearing and pushing, respectively, cases aimed at restricting the sprawling federal government from taking action.

In essence, most of these efforts are seeking to make it more difficult for the executive branch to take big swings through new programs and regulations — and even for the legislative branch to let the executive branch do so.

As the country and government has expanded, as the world has gotten more complex, it has made sense for Congress to delegate to agencies on the adoption of specific regulations that would come out of their expertise. The “major questions doctrine” cases and some of this term’s cases are an attempt to rein that in. While the “major questions doctrine” is focused on whether Congress sufficiently authorized the action in question, some of this term’s cases go a step further — asking whether Congress can even authorize the actions in question under the nondelegation doctrine.

Ultimately, these actions have a two-pronged benefit to the conservative legal movement.

First, the big regulatory swings are often going to be coming from the left, seeking to regulate new fields or existing fields in new ways to reflect changed needs. As such, legal rules like the “major questions doctrine” force progressives not only to win the White House but also to have a functional majority in both chambers of Congress so they can pass laws that will allow expanded regulatory action beyond what the conservative Supreme Court majority decides was already authorized by prior congressional acts.

Second, inaction is generally going to benefit conservative interests — business interests, in particular. The next best thing to deregulation, by this thinking, is calcified agencies that can’t put forward new regulations when deemed necessary.

This is where thinking about Trump’s plans is instructive.

The cumulative effect could be that the Supreme Court continues diminishing federal regulatory authority as a second-term Trump and allies are increasing the politicization of the authority that remains. As Trump’s authoritarian aims would lead him in a second term to try expansively bending the administrative state to his benefit, though, those plans would also eventually lead to instances where those goals conflict with the conservative legal movement’s goals to diminish the power of the administrative state.

Although Trump certainly would continue to support generalized deregulatory efforts, an intended result of these cases — to move the balance of power from the executive and legislative branches to the judicial branch — could result in a situation where Trump officials in a second term are seeking to advance actions that the conservative legal movement is currently seeking to get ruled out of bounds.

Of course, the politics of the Supreme Court — currently including three Trump appointees and three other Republican appointees — could very well lead to different rulings when the cases come up under a subsequent Republican administration, be it Trump, DeSantis, or someone else.

But, to the extent there are long-term goals at play from the conservative legal movement, there is a point at which those goals and the goals of a second-term Trump administration likely diverge. That underlying difference, moreover, could be why we’re seeing growing distance between the Federalist Society and MAGA Trump lawyers.

We’re less than a year from the next presidential election. We need to be thinking about how these varying plans overlap and conflict in the weeks and months ahead — to talk about and understand the plans, but also to prepare to respond, regardless of the election’s results.