On Second Thought . . .
The worst parts of Section 1 of Project 2025’s Mandate for Leadership
The previous post addresses the forward to The Heritage Foundation Project 2025’s Mandate for Leadership, a blueprint for the next Trump Administration. This post analyzes the first section of the report, “Taking the Reins of Government.” That section explains Project 2025’s plan to assert presidential control over federal departments and agencies, including the federal civil service. It includes chapters on the White House, the Executive Office of the President, and the Office of Personnel Management. The next post will cover Project 2025’s plans for the Department of Defense, the Department of Justice, the Department of Homeland Security, and the Intelligence Community. Abuse of the powers of those departments and agencies would pose the greatest threat to democratic norms and to vulnerable communities, including immigrants.
Chapter One: the Office of the White House
Chapter One describes the Office of the White House. It is authored by former Trump deputy chief of staff Rick Dearborn, a lobbyist and visiting fellow at The Heritage Foundation. It says little. It provides an overview of the functions and operations of the White House and key personnel. The chapter addresses the roles of the chief of staff and senior advisors. It describes White House offices including White House Counsel, staff secretary, communications, legislative affairs, political affairs, cabinet affairs, and the Office of Presidential Personnel (PPO), among others. The chapter also gives an overview of White House policy councils including the NSC, NEC and DPC. And it discusses the Office of the Vice President.
The anodyne content illustrates an observation in the previous post: many chapters read as if they were drafted without regard to overall project.
But one assertion does raise concerns. The description of the Office of White House Counsel suggests in a passing sentence that the next administration should “reexamine” the Department of Justice’s White House contacts policy. Recent administrations have all limited contacts between the Department of Justice and the White House about criminal matters. That is reflected in a written policy. Sharing information about such matters requires approval by the Office of the Attorney General or the Office of the Deputy Attorney General and the contacts are run through the White House Counsel’s office. The policy avoids actual or perceived political interference in criminal cases while accommodating legitimate reasons to share information about investigations that affect national security and foreign affairs. The policy also regulates participation by Department of Justice offices, including the FBI, in White House policy processes.
The report states that the contacts policy should be reexamined to “determine whether it might be more efficient or more appropriate for communication to occur through additional channels.” It is unclear why that would be appropriate. Such contacts pose risks to the actual or perceived independence of the Department of Justice. The “additional channels” other than the office of White House Counsel can only mean political staff at the White House. Authorizing sharing information directly with political staff about criminal matters would violate well-established norms across Republican and Democratic administrations.
The next paragraph illustrates the concern. It says that “[w]hen a new President takes office, he will need to decide expeditiously how to handle any major ongoing litigation or other pending legal matters that might present a challenge to his agenda.” Evaluating administration positions in significant civil matters happens in every transition. But the observation in the report goes beyond that norm. A Trump administration would involve significant White House political oversight of the Department of Justice in criminal cases. This likely would result in the dismissal of any cases against Trump himself, dismissals or pardons in cases related to the assault on the Capitol, dismissals or pardons in cases implicating Trump associates, and ongoing political interference in sensitive criminal matters. Loosening the contacts policy to authorize sharing information about criminal cases with White House political staff serves those interests.
Chapter Two: Executive Office of the President of the United States
Chapter Two is the heart of the report. It outlines the plan to rein in federal agencies and the federal workforce. It is authored by Russ Vought, the director of OMB during the Trump Administration.
Using the “Enormous Power” of the Presidency
The chapter begins with a full-throated unitary executive view of presidential power. That constitutional theory has been widely adopted on the right. It maintains, as the chapter asserts, that “Article II of the U.S. Constitution makes it abundantly clear that ‘[t]he executive power shall be vested in a President of the United States of America.’” And “[t]hat enormous power is not vested in departments or agencies, in staff or administrative bodies, in nongovernmental organizations, or other equities and interests close to the government. The President must set and enforce a plan for the executive branch.” Under this view, laws that have diluted presidential authority over the executive branch, including laws that insulate agency decisions from political control and laws that create independent agencies, are unconstitutional.
The chapter asserts that the president must “limit, control, and direct” the executive branch. But this task is complicated by Congress’s decades-long tendency to pass laws that delegate significant policy discretion to administrative agencies, the “pervasive notion of expert ‘independence’,” and the “presumed inability to hold career civil servants accountable for their performance.”
The plan calls for increasing the power of the president to reduce the power of the federal bureaucracy: “The great challenge confronting a conservative President is the existential need for aggressive use of the vast powers of the executive branch to return power—including power currently held by the executive branch—to the American people.”
Should that conception of presidential power raise concerns?
Authoritarian leaders and military juntas have repeatedly invoked similar justifications for claiming power. They promise to reestablish democratic institutions after liberating them from socialists. Think Brazil, Argentina, and Chile in the 1970s and 1980s. The demonization of liberals and government “elites” in the forward to the report, together with the suggestion of an “existential need for aggressive use of the vast powers” of the president, sounds too familiar. The proposal also must be viewed in light of Trump’s increasingly bizarre conduct, including his repeated praise of authoritarians.
At the same time, as chief executive, a president should be able to assert meaningful political control over the executive branch, consistent with the law. Defense of the independence and discretion of technical agencies such as the EPA is often in the eye of the beholder. Where an agency is perceived to be out of step with a president, the commentary generally turns on whether the critic favors or opposes the president’s policies. Moreover, civil servants must act consistent with administration policy, and political leadership has a right to objective technical advice.
Accordingly, the problem is not the assertion that a president must be able to establish policy throughout the executive branch. It is legitimate for a president to establish policy priorities. These may even involve establishing general enforcement priorities for the Department of Justice. It would be inappropriate, however, for the White House to dictate how Department of Justice prosecutors evaluate a prosecution under the guidelines and norms that ensure fairness in the exercise of discretion. Similar norms apply at other agencies, even where regulatory or enforcement decisions are subject to more political oversight. The problem is that the chapter provides a theoretical justification for the politicization of technical and scientific processes witnessed in the last Trump administration. And as noted above, they cannot be viewed in the abstract, even if the report purports to address the next “conservative administration,” since Trump will be the nominee.
The chapter goes on to outline how to use White House offices and policy processes to realize this vision. It discusses the Office of Management and Budget (OMB) and the National Security Council (NSC), among others. The discussions of OMB and NSC are most important in assessing how presidential authority may be exercised to undermine established norms.
Office of Management and Budget
The plan proposes enhancing OMB’s role as overseer of the federal bureaucracy. OMB’s role varies from administration to administration but is generally limited to budgeting and coordinating interagency review of regulations. The chapter argues that OMB must, instead, aggressively police the bureaucracy’s development and implementation of White House policy.
The proposal calls for enhancing OMB’s Resource Management Offices (RMOs), which oversee agency budgeting, so that the RMOs can police agency policymaking at a more detailed level. It proposes using OMB management offices to the same end. And it proposes bolstering the role of OIRA, which is charged with conducting cost-benefit review of federal regulations. The chapter observes that OMB’s legal counsel must be “respected yet creative and fearless in his or her ability to challenge legal precedents that serve to protect the status quo.”
The OMB discussion concludes with a strange proposal to use the Congressional Review Act (CRA) to kill proposed regulations developed in the Biden administration but that have not been finalized. Revising or pulling down proposed regulations must comply with the Administrative Procedure Act (APA). The actions must be consistent with the agency’s statutory authorities and responsibilities. Such actions may be subject to challenge in court under the APA. To avoid that, the chapter proposes that the administration could go ahead and issue the regulations based on the understanding that Congress, under the CRA, will reject them. That would abdicate the federal agency’s responsibilities in order to insulate decisions from judicial challenge. Through the CRA veto process, Congress would be passing a new law that would need to be signed by the president whose administration just issued the regulations Congress rejected. In any event, that strange proposal would require Republican control of Congress.
National Security Council
The proposals for the NSC are among the most troubling in the report. The report proposes purging the NSC of career staff and detailees to ensure that the various NSC directorates loyally carry out presidential policy under trusted leadership and staff at all levels.
The directorates cover the waterfront of national security issues, from counterterrorism, to cybersecurity, to arms control, to regions around the world. Aside from leadership positions, NSC staff is comprised largely of detailed career civil servants from the national security agencies. The legal adviser plays a central role in reviewing national security proposals for legality, coordinating with the Department of Justice’s Office of Legal Counsel and senior lawyers at other agencies. The legal adviser’s small staff is comprised of career lawyers detailed from the Department of Justice, DOD, State, and the Intelligence Community. The policy directorates are staffed in a similar way.
This structure provides the White House legitimate policy control but ensures that national security policymaking is highly professionalized and insulated from politicization. It helps moderate and refine problematic proposals that may be driven by political staff in the White House. But in the end, the president is in charge. NSC policy proposals go up to the president through a process involving meetings of key deputy cabinet secretaries, followed by principals. Placing apparatchiks throughout the NSC will ensure that risky and problematic national security proposals are not thoroughly vetted. While an administration has the right to expect staff to develop and review policy proposals in good faith, and to carry out administration policy, manufacturing groupthink is not the way to run a national security process. It runs counter to long-established norms regarding the operation of the NSC. Any plan to significantly increase NSC career staffing would require congressional appropriations, a significant source of control so long as at least one house of Congress opposes the plan.
To ensure that the administration can fill all these positions with political hires, the proposal even suggests altering the security clearance process for NSC officials and staff. It proposes giving NSC itself the authority to grant clearances pursuant to a process that it alone would run. Clearances would no longer follow the rigorous process that applies to the rest of the executive branch.
Chapter 3: Central Personnel Agencies: Managing the Bureaucracy
Chapter 3 is about the federal civil service. It states that since the Heritage Foundation’s first Mandate for Leadership “the ‘personnel is policy’ theme has been the fundamental principle guiding the government’s personnel management. As the U.S. Constitution makes clear, the President’s appointment, direction, and removal authorities are the central elements of his executive power.”
Most of the chapter, however, is devoted to longstanding efforts across Democratic and Republican administrations to ensure a qualified and accountable civil service system. Off message, it credits the Carter and Obama administrations, among others, for steps to balance civil service protections with the need efficiently to hire the best employees and fire poor performers. It even cites the Brookings Institution, a bastion of deep state elitists who, the forward says, are engaged in a decades-long conspiracy against the American people.
The chapter gets back on message discussing the Senior Executive Service (SES) and senior career staff who exercise significant policy responsibility. The chapter tries to make the case for limiting SES positions in favor of additional political appointees and removing civil service protections for senior career staff.
The chapter suggests that political appointees “burrow in” to career SES positions toward the end of administrations, and that this happens more at the end of Democratic administrations. That is offered as a justification for limiting the number of SES positions and instead filling more management positions with political appointees accountable to the current administration. The chapter fails to mention that the Office of Personnel Management has long required agencies to get approval from OPM before offering a career position, including SES, to a political appointee. Reports state that this involves a very small number.
SES positions include senior managers down to chiefs and directors of sections within agencies. SES positions are openly advertised and are not limited to existing civil servants. If an individual is selected for an SES position—like chief of an enforcement section—that individual must separately apply and be selected as a member of the SES by a board of civil servants from different agencies. It is a cumbersome process whereby the applicant must submit lengthy narratives covering a range of management qualifications. The chapter recommends politicizing that process as well, complaining that these SES boards are made up of career civil servants and not the political appointees who should carry out SES-type responsibilities. It says such “[c]areer training [] often underplays the political role in leadership and inculcates career-first policy and value viewpoints.”
The chapter invokes this supposed problem in the SES to support reinstating a Trump administration executive order that would effectively turn a large portion of the senior civil service into political appointees. But the order would increase burrowing by political appointees. It would create a new category of career positions of a “confidential or policy-making character,” a category that under the laws governing the civil service are not subject to civil service hiring requirements or protections. That category is currently limited to a narrow class of political appointees (schedule Cs). They are typically political staff for senate confirmed leaders. They can be appointed and removed at will. The order would vastly expand the positions classified as “confidential or policy-making” to potentially up to a third of the workforce.
This is perhaps the most concerning proposal in the Project 2025 playbook. But it was already done at the end of the last Trump administration, before President Biden revoked the order. It was not implemented. And it would be subject to significant legal challenge. It attempts to use a narrow category under the civil service laws to return the civil service to the kind of politicized patronage system the civil service laws were meant to end. How it would affect existing civil servants in reclassified positions—who enjoy strong civil service protections—is unclear. It would likely produce chaos. If the plan were to install a huge number of political loyalists in these positions, and if existing civil servants currently holding those positions could not be fired, it would ironically cause a significant increase in the size of the federal bureaucracy. So long as at least one house of Congress is controlled by Democrats, Congress would retain the appropriations power to undermine such an effort.
Conclusion
The previous post took the position that reactions to the Project 2025 report, as laying the groundwork for authoritarianism, are overblown. Much of the report rehashes old Trump policies and longstanding conservative positions about the role of the presidency and the need to control the federal bureaucracy. Some of the most radical proposals, such as gutting the civil service system, will be difficult to implement and subject to congressional appropriations control. But the proposals raise significant concerns.