The last few days have seen several prominent articles about “the Deep State”: by David Remnick in the New Yorker, Marc Ambinder in The Washington Post, Julie Hirschfeld Davis in the New York Times, and Kevin Williamson in The National Review, among others. I’d been thinking of writing myself, and I think we need some definitions:

• The Civil Service: a body of government employees who are protected against political patronage and dismissal without cause in return for embracing norms of nonpartisanship, public service, and professionalism.
• The Administrative State: government agencies that make and enforce rules and regulations (in contrast to statutes enacted by legislatures) and/or directly manage public resources, such as land.
• The National Security Apparatus: military and spy agencies as well as police agencies concerned with terrorism, foreign espionage, and subversion.
• Bureaucracy: any large organization divided into specialized offices, each requiring appropriate training and having defined roles and responsibilities, the whole being organized hierarchically and aimed at achieving some predefined or externally defined end or purpose.
• The Deep State: a group of people within any or all of the above who collude secretly to pursue their own shared agenda, which may reflect their self-interest or an ideological interest contrary to the goals of elected leaders.

Some observations based on those definitions:

Most of the above definitely exist. Whether the (or a) Deep State exists is a matter of conjecture. One reason that the answer is not obvious is that the National Security Apparatus is cloaked in considerable secrecy. But secrecy is necessary for the existence of such an apparatus at all, and is not indefensible. There are many things we would like our government to know yet not publicly disclose. State secrecy is a problem for a democracy but not necessarily an avoidable one.

If there is a Deep State, it would form within one or more bureaucracies yet would subvert them. That is because bureaucracies constrain their employees to carry out defined tasks, but people who collude for their own agendas are evading such constraints.

The Deep State could exist within the National Security Apparatus, the domestic civic service, or both. Americans in a large swath of the center-left and left tend to be critical of US foreign policy but supportive of regulation and the welfare state. Some of them have feared secret agendas in the National Security Apparatus while viewing officials in the domestic welfare and regulatory agencies as dedicated civil servants. Americans in a large swath of the right have been more supportive of foreign policy than of domestic policy, so they have been prone to see soldiers, police officers, and spies as public servants, and other federal employees as uncontrollable bureaucrats. However, the hard right has also been critical of foreign policy, so there have been Deep State narratives on the right at least since the McCarthy Era. Some on the hard left see the domestic policy apparatus as basically a Deep State devoted to disciplining the poor, but I hear less of that than I used to 20 years ago.

To the extent that we have a genuine civil service, it is designed to push back against elected officials and political appointees. That is not sign of a conspiracy but evidence that popular sovereignty conflicts with such values as scientific rigor and legal consistency. The civil service has a checks-and-balances relationship with elected politicians.

Finally, we do have a problem with the Administrative State, but it is not a conspiracy or anything wrong with the people who work in it. Theodore Lowi was a very fine political scientist whose death on Feb. 17 didn’t get enough attention. Lowi argued that liberals built the regulatory and administrative agencies to enact demanding values for which they had received popular support. But the agencies that liberals created do not have legitimacy to make value-judgments themselves. In lieu of making explicit value-judgments, they claim to make their decisions based on science, efficiency, precedent, or stakeholder negotiation. But they actually make value judgments every day. This creates a crisis of legitimacy that threatens the liberal project.

Another way to make Lowi’s argument is to note that the Administrative State is not envisioned in our Constitution (nor is a permanent National Security Apparatus). Agencies are widely understood as parts of the executive branch or as arms of Congress. (They even employ their own judges, which makes them resemble the judicial branch.) I think a better interpretation is that they represent a fourth branch altogether, which has developed since 1900. It should embody certain norms, such as impartiality, rigor, and predictability, and it should be designed to push and pull with the branches that reflect popular will (Congress and the presidency), deliberation (Congress), discretion and flexibility (the presidency), and law (the judiciary). We should expect tension between the president and the administrative agencies and improve our means of resolving those tensions.

As long as we do not regard the Administrative State as a branch with its own norms and standing, we should expect constant crises of legitimacy, because the existence of this branch has never been recognized by the American people. This is not to defend or rationalize Stephen K. Bannon’s attack on the administrative state. But there is a deeper and longer-term problem that will require attention sooner or later.

See also:  the Citizens United decision and the inadequate sociology of the US Constitution; the public interest and why it matters;  problems with “stakeholders”; and on government versus governance, or the rule of law versus pragmatism.