Episode Overview

Episode Title: Fishy Deep State
Podcast: What Trump Can Teach Us About Con Law
Host: Roman Mars
Guest/Expert: Professor Elizabeth Joh
Release Date: August 27, 2024

In this episode, Roman Mars and Professor Elizabeth Joh explore the concept of the "deep state" in the American political lexicon, its evolution from a conspiratorial buzzword to a legal and political catch-all, and how this narrative ties directly into very real and impactful Supreme Court decisions about federal government authority—notably, the recent overturning of the Chevron doctrine in Loper Bright v. Raimondo. The episode also examines Trump's proposed "Schedule F" and its implications for the future of the federal bureaucracy.

Key Discussion Points & Insights

1. The "Deep State": From Conspiracy to Legal Doctrine

[03:34–04:49]

• Initial Meaning:
  • In political science, "deep state" originally referred to undemocratic, clandestine influence—typically military/security officials in authoritarian countries (e.g., Turkey, Egypt).
  • In the U.S., "no serious person thinks" there’s a secret American government in this sense—yet, the term became mainstream through Trump's rhetoric.
    • Elizabeth Joh: "But Trump began to tweet and talk about the deep state when he became president..." [04:46]
• Political Rebranding:
  • Trump expanded the term to attack any investigations into him, generalizing "deep state" to refer broadly to government bureaucracy, especially federal agencies (the administrative state).
  • This framing—vague and sinister—became a powerful tool for conservative activists and corporate interests to rally against regulation.

2. What is the Administrative State?

[04:51–08:07]

• Definition & Function:
  • The administrative state refers to federal agencies (e.g., EPA, FDA, FAA) that regulate safety, health, the environment, and distribute benefits (Social Security, Medicare).
  • These agencies have regulatory power, employ career experts, and maintain continuity across administrations.
• Political Opposition:
  • Business interests and conservatives criticize agency power as overreach, spending "millions fighting new regulations in court."
  • Conservative legal strategy: Appoint judges critical of agency power.

3. Chevron Deference: The Legal Foundation Under Attack

[08:07–12:41]

• Chevron v. NRDC (1984):
  • Established that if Congress's intent in a law is ambiguous, courts should defer to the reasonable interpretation of the relevant agency ("Chevron deference").
  • Initially seen as a win for conservatives (Reagan EPA deregulating), but as agencies regulated more, it became a target for the right, who saw it as enabling unchecked bureaucracy.
    • Roman Mars: "…the Chevron case at the time…is actually a win for conservatives." [11:04]
    • Elizabeth Joh: "But politics changed...over time, because of the Chevron case, corporations found that it was really hard to challenge federal regulations in court." [11:21]

4. "Deconstructing The Administrative State": Politics and Rhetoric

[12:41–13:31]

• Steve Bannon’s agenda: Called for "the deconstruction of the administrative state," a theme picked up by Trump under the more palatable banner of fighting the "deep state."
• Bureaucratic Expertise as Political Fodder:
  • Example: Conservatives attacking Dr. Anthony Fauci as a "deep state" official during COVID-19.
    • Elizabeth Joh: "They called Fauci an agent of the deep state. Remember?" [13:30]
• Trump's Judicial Legacy:
  • 226 federal judges and 3 Supreme Court justices appointed, shifting the judiciary’s attitude toward Chevron.

5. The Case of the Silvery Fish: Loper Bright v. Raimondo

[13:31–18:08]

• Background:
  • 1976 Magnuson-Stevens Act empowered the National Marine Fisheries Service to regulate fisheries.
  • In 2020, NMFS required Atlantic herring fishermen to not only have federal monitors aboard but also to pay for them.
  • Lawsuit filed—not grassroots, but backed by conservative activist lawyers and Koch funding.
• Legal Issue:
  • Under Chevron, if Congress’s statute is ambiguous, the agency wins if its interpretation is reasonable.
  • The Supreme Court, in Loper Bright (June 28, 2024), ruled for the fisheries and "overruled Chevron."
    • Elizabeth Joh: "Chief Justice Roberts concluded for the majority, Chevron is overruled." [16:52]

6. End of Chevron Deference: What Changes?

[18:26–21:40]

• Practical Impact:
  • Now, federal regulatory ambiguity will be resolved by courts—judges, not experts.
  • Opens the door to increased litigation and regulatory instability.
    • Roman Mars: "So what does it mean to have the end of Chevron deference?" [18:26]
    • Elizabeth Joh: "…the final say should go to courts, not agency staff, people who might be trained in scientific data analysis…In fact, it should be judges instead of them." [19:22]
• Why it’s significant:
  • Groups supporting the overturning spanned gun rights, home builders, food industry, tobacco—industries seeking less regulation.
  • Justice Kagan’s dissent: "Expertise is good…we don't necessarily have as courts the ability to figure out how to make these determinations." [19:56]
  • DOJ lawyer Elizabeth Preligar: Overturning Chevron would be a "convulsive shock to the legal system." [20:59]
  • Trump lawyer Jay Sekulow’s celebratory response, "massive blow to the deep state’s unchecked power." [21:22]

7. Schedule F: Trump’s Plan to Politicize the Bureaucracy

[21:40–25:59]

• What is Schedule F?
  • Trump-prompted executive order to reclassify up to 50,000 career civil servants as political appointees (from ~4,000). This would allow a president to fire experienced staff and install loyalists.
    • Elizabeth Joh: "…if all of these people now became political appointees, a new president could come in, fire them for any reason… and put in people who are simply loyal to the new president…" [22:46]
  • Order was rescinded by Biden but Trump vows to bring it back on "day one" if elected.
  • J.D. Vance is an outspoken advocate: "…fire every single mid level bureaucrat, every civil servant in the administrative state." [23:54]
• Historical Parallels:
  • Roman Mars links this to an earlier era of corruption by patronage, explaining how civil service reform aimed to eliminate job rewards for political loyalty.
    • Roman Mars: "The whole part of early 20th-century politics is all about undoing patronage..." [24:42]

8. Dangerous Consequences for Governance

[25:59–27:09]

• Expertise vs. Ideology:
  • Dismantling career expertise risks regulatory capture, incompetence, or outright corruption in federal agencies.
    • Elizabeth Joh: "…these are things we would like scientists to make decisions about, not just partisan loyalists for sure." [25:54]
• Legal and Business Uncertainty:
  • Businesses may face difficulty planning long-term, as regulations become more easily challenged and less stable.

9. The Supreme Court and Stare Decisis

[27:09–28:16]

• Court’s Changeability:
  • Roman Mars: "…that sense of uncertainty is what the Court, independent of it being more conservative or more liberal—the court really hates that." [27:09]
  • Elizabeth Joh: "And in fact, a big portion of the back and forth between the majority and the dissenters in Loper Bright is about the idea of stare decisis…" [27:44]
  • Kagan’s dissent points out the majority’s reasoning is little more than dislike of the precedent.

10. The Gorsuch Chevron Connection

[31:04–32:05]

• Justice Neil Gorsuch wrote an extensive concurrence against Chevron, reflecting deep skepticism of administrative power.
• Surprising Connection: His mother, Anne Gorsuch, was the Reagan EPA administrator whose deregulatory bent sparked the original Chevron case.
  • Elizabeth Joh: "Reagan's EPA administrator…Anne Gorsuch, his mother." [31:31]
  • Roman Mars: "Oh, my God, that's so weird. That's so weird and random." [31:40]

Notable Quotes & Memorable Moments

• On What the “Deep State” Really Is:

  • Elizabeth Joh: "No serious person thinks the United States has the same secret government conspiracy, but ... Trump began to tweet and talk about the deep state when he became president." [04:46]

• On the Chevron Precedent:

  • Elizabeth Joh: "If things are unclear, the court should defer or rely on what the agency has done, meaning that the court should leave the agency's interpretation alone, even if the court might disagree." [09:44]

• On Expert Versus Judicial Decision-Making:

  • Elizabeth Joh: "Who decides? The agency or a judge? Well, the Loper Bright case now means that the Supreme Court has decided the final say should go to courts, not agency staff..." [19:22]

• On Schedule F and Politicizing Government:

  • Elizabeth Joh: "For Trump, Schedule F would mean that Trump would take office and fire tens of thousands of people working in federal agencies and replace them with people who are simply politically loyal to him." [23:14]

• On Historical Context:

  • Roman Mars: "All of the 20th century was all trying to sort of get to the point where you had to have some kind of merit based system for getting a job inside of the government. And it's amazing that the big idea is to just undo all that." [24:42]

• On the Loss of Stability and Business Planning:

  • Elizabeth Joh: "But even from a business perspective, you can sort of understand why...it's harder for businesses...you're not sure how long the regulation is going to last." [26:32]

• On Gorsuch’s Personal Connection to Chevron:

  • Elizabeth Joh: "[Anne Gorsuch]…Reagan's EPA administrator, the person who created those new regulations making it easier for polluters to pollute. Anne Gorsuch, his mother." [31:31]

Timestamps for Important Segments

• Defining the Deep State: [03:34–04:49]
• Administrative State Overview: [04:51–08:07]
• Chevron Deference Background: [08:07–12:41]
• Political Attacks on Bureaucracy: [12:41–13:31]
• Loper Bright Supreme Court Decision: [13:31–18:08]
• Impacts of Overruling Chevron: [18:26–21:40]
• Schedule F & Trump’s 2024 Agenda: [21:40–25:59]
• Dangers of Politicizing Expertise: [25:59–27:09]
• Supreme Court and Precedent: [27:09–28:16]
• Neil Gorsuch’s Personal Connection: [31:04–32:05]

Tone and Style

The episode combines the informal enthusiasm of Roman Mars—often incredulous and wry—with the accessible, clear, and slightly amused expertise of Professor Joh. Both are skeptical of the wisdom and motivations behind attacks on federal expertise and express concern about the broader implications for American democracy and governance.

Conclusion

This episode demystifies what the "deep state" really means within American constitutional structure—tying together legal doctrine, political rhetoric, and court decisions with implications for the future of federal regulation, agency expertise, and democratic integrity. Through the lens of a "little silvery fish" and the fate of Chevron deference, Professor Elizabeth Joh shows how political strategy, judicial reasoning, and administrative law intersect with the everyday lives and protections of Americans.