The federal bureaucracy has a mind of its own. Federal employees are often ideologically aligned—not with the majority of the American people –but with one another, posing a profound problem for republican government, a government “of, by, and for” the people. As Donald Devine, Dennis Kirk, and Paul Dans write in Chapter 3, “An autonomous bureaucracy has neither independent constitutional status nor separate moral legitimacy.”

~Project 2025/Page 20

As you know, this is what the MAGAverse has labeled “the deep state.”  Even if you believe this (air quotes) “profound problem,” they propose replacing 50,000 merit-based jobs across the executive branch with (ready for this?) their OWN federal employees who are ideological aligned–not with the majority of the American people–but with one another. And the ideological bent of this new regime is neither of, by, or for the people.  It will promote and implement whatever Donald Trump and his cadre of oligarchs (domestic and foreign) believe is good for Americans.

What those who ask, “How bad could this be?” do not realize, there is a living, breathing example of exactly how this will play out.  The former president and the Federalist Society created the equivalent of a MAGA ideological deep state in the judiciary where the Constitution be damned if it does not serve the needs of Donald J. Trump.  The media have done an adequate job of covering efforts by the Supremes to opine in Trump’s favor when it comes to his criminal activities (inciting insurrection and stealing classified documents), but have paid little attention to how lower court justices have done exactly what Project 2025 proposes for the executive branch.

Exhibit A is the recent ruling by U.S. District Judge James Wesley Hendrix  in State of Texas v. Merrick Garland, et. al.  This ruling is so egregious that this past Friday, Senate Minority Leader Mitch McConnell filed a 35-page amicus brief in favor of the defendants, drafted and certified by (drum roll) former Attorney General William P. Barr.  What could Hendrix have possibly said that motivated McConnell and Barr to side with Garland and other politically appointed officials in seven federal agencies?

The State of Texas claimed that much of the legislation passed during the first two-years of the Biden administration was unconstitutional because, in response to the COVID pandemic, then House Speaker and the Democratic Caucus authorized proxy voting by members of the lower chamber.  The House Parliamentarian affirmed the rule change. Hendrix summarized the case in the first sentence of his opinion.

For over 235 years, Congress understood the Constitution’s Quorum Clause to require a majority of members of the House or Senate to be physically present to constitute the necessary quorum to pass legislation.

Based on his extra-sensory perception of what thousands of dead or retired members of the House of Representatives “understood,” he ruled:

The Court concludes that, by including members who were indisputably absent in the quorum count, the Act at issue passed in violation of the Constitution’s Quorum Clause.

Of course, there is just one problem.  The quorum clause in Article I, Section 5, Clause 1 reads:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business.

Judge Hendrix, who claims to hold an “originalist” theory of the founding documents, or what I call the “Horton the elephant” philosophy best stated when the pachyderm avows “I said what I meant and I meant what I said,” interpreted the word “majority” as equivalent to “physically present.”  If there was any doubt the founding fathers implied such, why did they specify  “two-thirds of the members present” in Article I, Section 2: Powers of Impeachment and leave it out elsewhere.

In their amicus brief, McConnell and Barr correctly point out the controlling language, absent more specific instructions in Clause 1, is actually Clause 2.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Which raises the question, “Why, when the constitutional language is so clear about the authority of both houses of Congress to set their own rules, would a district judge ignore it to rule in favor of the plaintiff?”  Who benefits?  If higher courts agree with Judge Hendrix, several major accomplishments of the Biden/Harris administration, a record on which they proudly run, would be nullified.  Construction projects funded under the Infrastructure Investment and Jobs Act could be halted.  Manufacturing facilities supported under the Chips and Science Act would remain unfinished.  Recently announced reductions in Medicare pharmaceutical costs and conservation projects would disappear.  I can hear it now.  Trump and his MAGA outlets would accuse Biden and Harris of “cheating” in order to achieve their socialist, communist and fascist agenda.

Once again, a 49-year-old Trump appointed judge, who either cannot read English or chose to ignore it, could spend another 20 years on the bench issuing more equally erratic decisions.  My question?  If Judge Hendrix can move McConnell and Barr to submit a 35-page brief, why wouldn’t voters make every effort to ensure federal judicial vacancies are filled by individuals who will not be members of a “deep judiciary” that “are often ideologically aligned—not with the majority of the American people—but with one another?”

For what it’s worth.
Dr. ESP