By Andrea Widburg | Sept 7, 2024
Image by AI.
The Constitution established three branches of government: Executive, Legislative, and Judicial. While each branch clearly requires employees to carry out the branch’s function, the Founders manifestly did not intend for these employees to call the shots. However, things have changed. Wilson planted the seeds of a vast bureaucracy, FDR grew those seeds, and the modern Democrat party, from JFK to Biden, turned the bureaucracy into an uncontrolled monster. Now, as a preemptive strike against a possible Trump presidency, the Harris-Biden team is trying to make it impossible for Trump to dislodge the bureaucrats or their regulations.
To lock in pro-Democrat federal employees, the Harris-Biden administration is operating outside of the usual parameters controlling federal hiring. Just the News reports:
An independent watchdog group is warning that the Biden administration is busy working to blunt the impact that a Trump presidency might have on the Department of Justice using special authority to appoint without competition select career civil servants to key roles.
[snip]
“So what they’re doing is they’re using a hiring authority that’s outside of the normal competitive process for hiring career officials,” Protect the Public’s Trust Director Michael Chamberlain told the “Just the News, No Noise” TV show Tuesday.
“Normally to be hired into a career civil service job it takes a listing in usajobs.gov and they’ll have several candidates, and they’ll go through a competitive process to choose these. But, the DOJ is using a process outside of that, the non competitive process, to hire hundreds of attorneys into areas that are going to be vital to protecting the Biden Harris administration’s policies from a Trump administration or another future administration,” he continued.
The same article explains that the people being hired under “Schedule A” rules have some special career civil service protections:
“Around this, the Schedule A hiring that they’re using to bring in these attorneys and judges, a part of that it can be used to hire people with disabilities, but it can also be used to to hire individuals who are in specialties like judges and attorneys, and also in in certain…for scientists and certain hard-to-find places, critical areas,” he said. “But, there is, in the Schedule A, there’s a term for two years in which they’re kind of at will employees, but after that, they serve that two years, then they become career civil servants, and they have the same Civil Service protection that other career employees would have.”
This kind of “you can’t fire them” hiring is taking place in purely leftist areas of the federal government: immigration judges, environmental trial attorneys, and antitrust (e.g., “preventing price gouging”) attorneys.
In addition to this kind of specialty hiring, the Harris-Biden administration is trying to cement regulations that will go into effect if Congress doesn’t act to rescind them within 60 days—and, again, these are all leftwing wish-list items:
Some of the rules advanced cover key priority areas for the Biden administration, including climate change, abortion, credit card “junk fees,” and providing healthcare to illegal immigrants, Politico reported. In nearly all of these policy areas, a future President Trump would hold opposing positions.
For example, the U.S. Securities and Exchange Commission promulgated a new rule in March requiring publicly traded companies to divulge data on their climate impact for investors, including greenhouse gas emissions.
In April, the Biden administration’s Department of Health and Human Services issued a new rule strengthening medical privacy regulations on “reproductive healthcare.” The rule permits the federal government to use the health privacy law, commonly known as “HIPPA,” to protect access to abortion, Politico reported.
The Just the News article notes that Trump can reverse these rules, but it’s a very slow process, especially if Democrats (or, I guess, RINOS) control Congress.
There are two levels of questionably constitutional or actively unconstitutional conduct here.
Regarding the new hires, the statutes and regulations hamstringing a president’s ability to hire and fire people are almost certainly unconstitutional. Under the Constitution, the president is the big boss of the administrative state. Congress cannot undercut that power by enacting statutes to limit this authority, and the administrative state, which has no constitutional imprimatur at all, most certainly cannot create regulations to protect its members from the big boss’s decisions.
I’d also argue that most of the regulatory code is unconstitutional, all 200,000 or so pages of it. The Constitution does not recognize a self-propelled bureaucracy. Instead, legislative functions are vested solely in Congress.
Moreover, the Constitution impliedly mandates that the people’s representatives take an active role in carrying out this authority. It’s highly unlikely that the Founders intended that the people’s elected representatives, merely by ignoring what government agencies are doing, effectively rubber-stamp substantive rules that the unelected, unaccountable bureaucrats created.
Incidentally, I would (and have) made the same argument regardless of who is in office, whether Democrat or Republican. It is unconscionable that faceless people whose only loyalty is to their power and their paychecks control the vast engine of our federal government—and that they have the unlimited power of the intelligence agencies, law enforcement, and the military at their fingertips—all without being answerable to the actual constitutional branches of government.
My recommendation to Donald Trump, when he takes office, is that he fire every one of these Harris-Biden agents people and then tell the courts where they can go if they try to put their stamp on this manifestly unconstitutional power grab. In other words, until the Supreme Court speaks, he should ignore any lower court rulings telling him he cannot use his constitutional executive authority.
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