Game Over for the Bureaucratic Swamp: Trump’s Plan to Wipe Out the Administrative State

This isn’t 2017. The nascent Trump Administration isn’t unprepared on both a policy and personnel basis to fight back against the onslaught of lawfare that has been unleashed as was the case 8 years ago.

There has always been a plan this time around.

The Executive Orders (EOs) that are the source of the lawfare now being waged by the Democrats’ Marxist/Progressive allies were carefully written — unlike in 2017 when the new Trump Administration was largely unprepared for the surprising upset of Hillary Clinton.

The EOs that led the way in 2017 — the Travel Ban, Expediting Environmental Review for Critical Infrastructure Projects, etc., — were scattershot, written on the fly, and without having a clear understanding how they would be challenged in courts across the country.

Then in March 2017 came the announcement by Jim Comey to Congress that Pres. Trump and his campaign were under investigation with regard to the Russia Collusion Hoax. Any momentum the Pres. Trump might have ever had in the first 60 days of his first term were lost at that point.

In 2025, the Trump Transition Team had a plan. Dozens of EOs were carefully drafted with a coherent theme — directly attacking the Administrative bureaucracy — the “Resistance” — that strangled his first term in its cradle. There was never any question that the Democrats and the Administrative bureaucracy would rerun the same playbook — charge into federal courts where they knew they would find politically sympathetic judges (GOP did the same to Biden in Texas in 2021) and seek TROs and Injunctions to grind all the new reform efforts to a halt.

But I don’t think the Democrats/Progressives anticipated Elon Musk and his engineer boy-geniuses, nor did they expect that the first target that would take multiple incoming torpedos from DOGE would be the federal programs that have funneled huge sums of money to the left-wing NGOs through a variety of slush funds.

While legal battles are being fought on numerous fronts over the scope of the Executive’s power to manage the employees and operations of the Executive Branch, one key battle involves the authority of a President to fire officials in positions created by Congress. More specifically, the power of the President to ignore language written into the statutes creating those positions that supposedly limits a President’s ability to fire the occupants of those offices.

The origins of this problem are in various “independent” commissions and agencies created by Congress outside the structure of the traditional “Departments” of the Executive Branch. Obvious examples are the “Federal Trade Commission,” International Commerçe Commission, and the “Securities and Exchange Commission.” All are “independent” of any Department and do not fall under the authority of a Cabinet Secretary. The Commissioners named to each are appointed by the President and confirmed by the Senate, with a specified term in office.

The Commissions have whatever powers Congress chose to give them in the statute that created them, as well as whatever other authorities have been given in later legislation. Some create rules and regulations over certain sectors of the economy, and have independent or co-extensive enforcement powers with the Executive branch departments in terms of conducting hearings or bringing legal cases in federal court to seek enforcement of its rules and regulations.

The Trump Administration has triggered two flashpoints of conflict by acting to fire several of these statutory creations that, in effect, do business in the name of the Executive Branch while having little or no accountability to the President who sits atop the Executive Branch. On January 25, 2025, President Trump terminated more than a dozen “Inspectors General” in various Departments of the Executive Branch. These offices are all created of statute, with the general purpose of investigating the internal operations of their Departments for issues involving fraud or waste. In some instances, but not all, Congress has given an Inspector General’s Office authority to conduct criminal investigations due to the subject matter expertise that oftentimes exceeds that of federal law enforcement agencies such as the FBI.

More significantly for Congress, these Inspectors General conduct investigations that are delivered to Congress in aid of its oversight responsibilities. For all practical purposes they are a congressionally created “watch dog” over the Executive branch’s operations. You also might call them a congressionally created “spy” in the Executive Branch, over whom the Executive has limited authority, and whose function is mainly to be of assistance to the Legislative branch.

A second flashpoint on the issue of Presidential authority over an “independent” office created by statute came on February 7 when President Trump terminated Hampton Dellinger, the head of the “Office of Special Counsel.” This is NOT a “special counsel” like Jack Smith or Robert Mueller. This “Office of Special Counsel” was created by Congress to investigate possible violations of the Hatch Act — the law that prohibits certain kinds of partisan political activities by persons working in the Executive Branch. The Office has no enforcement powers, it simply write reports/complaints of possible violations that are sent to the Merit Service Protection Board for further adjudication and punishment as determined by that agency.

The Office of Special Counsel also has a role in protecting the interests of Executive Branch whistleblowers.

So — why all the controversy? Why does the Trump Administration want to fire these officials, and what are the interests that seem so dedicated to keeping them in place as holdovers from one administration to the next?

This goes back to the theory of the “Unitary Executive.” Article II, Section 1, Clause 1 of the Constitution states:

• The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years…

Article II speaks to a single person, “a President” — not a “Presidency” as a collective. All “Power” is vested in that single person. Anyone acting on behalf of the President, i.e., anyone in the Executive Branch, derives their authority to do so from the President. The Unitary Executive holds that because the power to act originates from the President alone, that power can be terminated by the President alone — i.e., the actor possessing that power can be terminated from the position.

The controversy arises from Congress, via statute, limiting a President’s authority to terminate Executive Branch officers by assuring them a specific term of office, and/or specifying limited grounds upon which such an officer can be removed early from the position.

This is where Mr. Humphrey and his Executor become key players in Supreme Court jurisprudence.

William Humphrey was nominated to the Federal Trade Commission by President Hoover, and was confirmed to that post by the Senate in December 1931, with a term in office to end in 1938. In October 1933 President Roosevelt acted to remove Humphrey from the Commission. Humprhey died four months later, in February 1934.

The statute stated that “any commissioner may be removed by the President for inefficiency, neglect of duly, or malfeasance in office….’ President Roosevelt’s letter terminating Humphrey did not mention any such finding as grounds for his termination.

The lawsuit leading to a hugely consequential Supreme Court decision involved the mundane matter of the Executor of Humphrey’s Estate suing for payment of his salary from October 1933 to February 1934 based on the claim that President Roosevelt lacked the authority to remove Humphrey as Commissioner under the language of the statute, and the Estate was therefore owed his salary as a Commissioner for five months between his purported removal and his death.

In deciding the case in favor of Humphreys, and upholding the statute’s limits placed on the President’s removal power, the Supreme Court stated:

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute…. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control…. [I]n filling in and administering the details embodied by that general standard — the commission acts in part quasi-legislatively and in part quasi-judicially. In making investigations and reports thereon for the information of Congress under 6, in aid of the legislative power, it acts as a legislative agency. Under § 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function — as distinguished from executive power in the constitutional sense — it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government.

This is the language that has come in for a great deal of criticism in the 90 years since the case was decided. According to Humphrey’s Executor, there are some components of the federal government which are neither “fish nor fowl”. They exist separate and apart from any of the three branches of government created by the Constitution. They are not part of the Legislative nor Judicial branches notwithstanding the fact that they act in a fashion nearly indistinguishable from those branches.

And, most importantly here, they act independent of oversight from the Executive branch notwithstanding the fact that they exercise “executive function” according to Humphrey’s Executor, but the President has no authority to direct their operations.

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