Mark Schiefelbein/AP Photo
Demonstrators rally in support of federal workers outside of the Department of Health and Human Services, February 14, 2025, in Washington.
One of the most defining and distinctive arguments of the Republican Party—and not just its MAGAnuts—is that the administrative state, the departments and agencies that implement policies and make rules to enforce those policies, is out of control and has to be “drowned in a bathtub,” as anti-government activist Grover Norquist has been saying for the past 40 years. More recently, this line of attack has been sharpened into the case for a unitary executive. Its adherents argue that the president should control all the agencies and bureaus that previous Congresses and presidents established to provide bipartisan oversight and a regulatory eye over markets, public health, worker rights, and so on, in furtherance of the laws that broadly structure their work.
No executive has ever sought to be as unitary as our current president, who has already sacked any number of directors, board members, and field workers at such agencies as the National Labor Relations Board, and has sought to abolish outright the Consumer Financial Protection Bureau. If there’s rulemaking to be done, or regulations to be lifted, that’s entirely up to Donald Trump. If the affected parties—American workers, American bank depositors, Americans who breathe the air—can no longer count on agencies established to defend their interests, well, they can just go to court. And indeed, the Republican-appointed justices on the Supreme Court said as much last year when they ruled in Loper that courts should no longer defer to agency rulemaking, no matter how granular the rule or how specialized the expertise required to even make such a rule. To hell with the agencies, the Court said; leave it to us. And as Trump merrily neuters one agency after another, the Republican consensus is: “If you don’t like it, you can take it to the courts.”
Except, apparently, when that undercuts the above-mentioned Trump.
Last Thursday, a federal judge issued a temporary restraining order blocking the president’s Office of Personnel Management from ordering the mass firing of probationary employees all across the federal government. Should that restraining order become permanent, it could block the ongoing Trump-Musk decimation of every governmental service.
That said, the case was also important because it exposed what was hitherto an exception to the Republicans’ war on the administrative state. In opposing the lawsuit, which had been brought by federal employees’ unions, the Justice Department and OPM argued that the case didn’t belong in court at all, that the unions should have taken their case to one of two administrative state agencies: either the Federal Labor Relations Authority or the Merit Systems Protection Board.
So much for Loper.
Did this signal a retreat from the Republican war on the administrative state? Only, apparently, if Trump has already destroyed the agencies in question. In his first month in office, he fired the head of the Federal Labor Relations Authority, which left the agency controlled by just two members, one a Democrat and the other a Republican. That ensures that the agency can’t really rule on anything. A similar firing he ordered at the NLRB means that agency lacks a quorum to rule on anything. Such actions leave the courts as the only place to which aggrieved Americans can turn when they’re wronged by employers or other powerful entities.
And what was the administration’s response to this form of recourse? Never mind Loper when a court may actually rule against us; we prefer the administrative state so long as it can’t muster a quorum to do anything.
You’ve heard of situational ethics? This is a situational system of government, empowering or disempowering any branch of government on the sole criterion of whether it does Donald Trump’s bidding. That’s not what the Founders had in mind—but, hey, they’re dead.
POSTSCRIPT: An old friend—a onetime Marine who fought in some of the most deadly battles of the Vietnam War (and later was one of the founders of Vietnam Vets Against the War)—now has Parkinson’s, and yesterday was expecting a visit from a Veterans Health Administration inspector who was coming by to help him select the kind of shower bath modification he now needs. The guy never showed up. Over the weekend, he was one of the thousands of VA employees who were fired.
