Authored by Jeffrey Tucker via The Brownstone Institute,
In 1883, when the Pendleton Act was passed, creating the US civil service, it must have seemed like no big deal. The forgotten Chester A. Arthur was the president. The fear of being assassinated like his predecessor James Garfield convinced him to back the legislation. The case for passage: government needs professionals with institutional knowledge. Technicians were changing the world, so why not government too?
Science and engineering were the rage – electricity, steel bridges, telegraphic communications, internal combustion, photography – so surely public affairs needed the same level of expertise. Who could deny that civil service could do a better job than the cousins and business partners of professional politicians?
That’s how it started. What was once called government of, by, and for the people was derided as the hopelessly corrupt “spoils system,” a phrase that reflected genius marketing. So it was overthrown in favor of “merit-based” hiring in the executive, a staff not yet permanent or huge, but the proverbial camel now had its nose under the tent.
Through two world wars and the Great Depression, and then the Cold War, what landed on the other side was something the Constitution’s Framers never imagined. We had huge governing systems in giant bureaucracies staffed by employees who could not be fired. It was left to them to implement, but really create the operational framework for the whole of civil society.
It was a state within a state, one with many layers, including that which was and is classified.
Industry and media long ago caught on that the civil service was a more reliable source of information and institutional continuity than the elected or appointed branches of government. Serving in government became a mark of credibility in industry, and so the revolving door was in constant operation. Media and the deep state, including its military and intelligence sectors, developed a mutually beneficial relationship that allowed for the manipulation of the public mind.
The best thing about the new system was that hardly anyone in public life really understood it. The schoolkids were still taught that there are three branches of government with checks and balances between them. Public life has been long dominated by elections with fierce ideological battles that eventually became more like window dressing, the results of which did not matter much for the practical affairs of state. It was the illusion of democracy.
Once the machinery was revealed, and some critical attention was applied to its legitimacy, the unraveling was inevitable. The reason is rather obvious. The entire thing is inconsistent with the idea of a people’s government. The Founders fought a war to overthrow bureaucracy, not establish one.
The Declaration of Independence plainly said: it is the right of a people to overthrow any government and establish a new one.
That idea is the most embedded postulate in the whole of American civic life. It has far more legitimacy in the public mind than the claims of the civil service or the demands that its plots and machinations must remain secret from the people.
Strangely, throughout the whole period of administrative state gains, the Supreme Court was never called upon to render a clear judgment on its legitimacy. There were small decisions along the way that shored up its functioning, but nothing that plainly said: this is or is not consistent with the law governing a free people.
This year, and mostly because the Trump administration decided to challenge the entire model, the machinery has begun to malfunction and melt away. There is a very long way to go, but we finally have the answer to the question of this fourth branch’s legitimacy. Plainly, it is not legitimate. It never has been.
The opening salvo was arguably Phillip Hamburger’s Is the Administrative State Unlawful? (2014), which gradually set off a huge literary debate for and against, plus a growing army of podcasters who figured it out in the course of the events that followed. It was a classic case of raised consciousness: once you see it, you cannot unsee it.
The active confrontation began in Trump’s first term. He arrived in Washington, D.C., expecting to be the boss of the executive branch, probably because that’s what the Constitution says in Article 2, Section 1. He quickly found out otherwise. Everything he wanted to change was declared to be off-limits. So far as he could tell, the whole of the city agreed that the job was entirely ceremonial.
That did not sit well with him. The tradition in the deep state of ignoring the president unless he annoyed them rubbed him wrong. He finally got fed up with the plots, schemes, and attempts to undermine presidential authority – which he saw as like unto a CEO, but no one else agreed – that he decided to run a test. He fired James Comey as head of the FBI. Washington freaked out.
The man to whom the job of firing fell was Justice Department attorney Rod Rosenstein, whose sister worked at the CDC. She was Nancy Messionier, who called the first press conference on the matter of a new virus from China that she said would necessitate dramatic changes in American life. Her role was first revealed by the New York Times reporter, who later said he was tricked.
No one at the CDC bothered to check with Trump. By the time he was asked to sign off on lockdowns, a month following the initial CDC announcement, the deed was pretty well done. He chose to get out ahead of the issue rather than be eaten alive by a media prepared to blame him for every death. He spent the next eight months issuing edicts via social media – initially bad but increasingly better – but he was almost entirely ignored by the administrative state he had unleashed.
Just before leaving office in 2020, Trump issued an executive order that would have reclassified a portion of the civil service as holding jobs subject to termination. Every venue that covered federal affairs had a meltdown of panic about what this would mean for the future of the 100-year racket they had been running.
The order was quickly repealed by the new president upon taking the oath of office – an action that set up the great battle of the future: permanent Washington vs. the public.
After four years in exile, Trump and his team plotted their revenge. It was clear to everyone that this issue was fundamental. He would have to risk it all by putting the question to the Supreme Court. He did this by issuing a record number of executive orders that pertained to the executive branch, all of which would presume that he could act like a president.
Trump’s team had predicted a flurry of lawsuits followed by injunctions, very much like what had happened in 2019-2020. This time, however, they would lawyer up and drive the question to the top. It was a huge gamble but it has turned out well. They knew that the structure of the status quo was completely indefensible from a Constitutional point of view.
The most recent blow to the administrative state gets to the heart of the issue.
In Trump v. American Federation of Government Employees (July 8, 2025), the Supreme Court backed the right of the president to engage in mass firings of federal employees.
There was only one dissenting vote from Justice Ketanji Brown Jackson, the judge who had reversed other Trump orders when she was a DC district judge.
Jackson’s dissent tries to make sense of the 4th branch of government.
“Under our Constitution, Congress has the power to establish administrative agencies and detail their functions,” she wrote. “Thus, over the past century, Presidents who have attempted to reorganize the Federal Government have first obtained authorization from Congress to do so.”
Lacking such authorization, she says, the Court should embrace the “harm-reducing preservation of the status quo.”
After all, she warns, “This executive action promises mass employee terminations, widespread cancellation of federal programs and services, and the dismantling of much of the Federal Government as Congress has created it.” “What one person (or President) might call bureaucratic bloat is a farmer’s prospect for a healthy crop, a coal miner’s chance to breathe free from black lung, or a preschooler’s opportunity to learn in a safe environment.”
There we go: the very core of the central-planning beast is at risk. At least she does understand the stakes.
This latest ruling – with many more likely to follow – comes on the heels of a flurry of similar decisions including: Loper Bright Enterprises v. Raimondo (June 28, 2024), which overturned Chevron deference (1986), reducing agency interpretive authority, shifting power from agencies to other branches (judiciary and executive, respectively); SEC v. Jarkesy (June 27, 2024), which limited agencies’ use of in-house adjudication, enhancing judicial oversight; Corner Post, Inc. v. Federal Reserve (July 1, 2024), which expanded opportunities to challenge old regulations; Ohio v. EPA (June 27, 2024), which enforced strict APA compliance, curbing regulatory overreach; Garland v. Cargill (June 14, 2024), involving restricted agency statutory interpretations; Trump v. CASA (June 27, 2025), which curbed nationwide injunctions, strengthening executive action; and City and County of San Francisco v. EPA (March 4, 2025), which narrowed the EPA’s regulatory scope.
This has all happened with remarkable speed – in the course of one year. The regime of one hundred years has suddenly fundamentally changed to fit more precisely with what the Framers designed. It amounts to a counter-coup against the tyranny of experts and the convoluted systems of compulsion and control they had carefully constructed. Even if we do not yet feel the effects, the ground has shifted beneath our feet.
It’s a myth that courts are merely looking at the law and ruling cases on their merits. They are subject to the pressures of public opinion and have proven deferential to the ethos of the times. That ethos has changed, suddenly and dramatically, and why?
From 2020 to 2023, with continued fallout today, the administrative state that had long ruled out of the public eye reached deep into the private affairs of every American. It closed the schools, churches, and businesses. It issued stay-at-home orders. It kidnapped family members into medical institutions, allowing no contact with family. It then mandated the injection of multitudes with an experimental shot that achieved nothing but left many harmed and others dead.
It is a measure of the arrogance and perceived hegemony of this machine – which extends from agencies to corporations to academia and the nonprofit sector – that so many within its ranks believe they could get away with all these outrages without consequence. Public rage followed, expressing itself in every possible way and demanding change. That change has begun. The conditions are in place for a much more dramatic change, which could happen later or possibly sooner.
The intricate networks of influence, graft, and quid pro quo, and surreptitious pillaging of the people’s resources and power, believed itself to be invulnerable, somewhat like the rulers of the old Soviet empire in the months before it fell apart. Every old regime has believed itself to be secure up to the moments when its leaders seek sanctuary and its minions flee to the hills.
With the Covid response, the administrative state got over its skis, bit off more than it could chew, jumped the shark, pulled out the wrong Jenga block, or whatever other cliche you want to choose. It is the precipitating event, the event that exposed the whole. One is reminded of Mikhail Gorbachev’s war on vodka, which did more than Glasnost or Perestroika to end the regime and undermine the last shred of credibility of the party’s rule.
We’ve wondered for many years what the revolution would look like when it came home. We got a glimpse of this last week, when iPhone cameras recorded thousands of State Department employees carrying their belongings out in bankers’ boxes out the front doors of the palace that had long been their home. Live by administrative edicts; die by them.
