As Republicans hope for victory in November, recent events in Britain remind us how quickly success can turn into ashes. The British Conservative party experienced a historical meltdown in the July 4 election, losing two-thirds of its seats in the biggest defeat in the party’s history. Thanks to the oddities of Britain’s First Past the Post election system, Labour now holds a huge majority despite recording the lowest winning vote share (34%) of any ruling party since the advent of the universal franchise.
Many British conservatives argue that they were thwarted by the “deep state.” Conservatives in the United States have similar fears about their own prospects.
In principle, U.K. politicians have less of an excuse. At its peak in the second half of the twentieth century, the “Westminster system” represented the furthest point of divergence between the British and American constitutions. The courts’ constitutional role was modest, the power of the monarchy a formality, and that of the House of Lords dramatically curtailed. The elected Parliament is sovereign. Governments can deliver their program, subject only to the judgment of the electorate, which can elect a new government that repeals all its predecessor’s work.
As for the civil service, its head said as recently as 1985: “The civil service as such has no constitutional personality or responsibility separate from the duly constituted government of the day.”
In a paper for Policy Exchange, my coauthors and I set out how the Westminster system has been eroded over recent decades, with a growing role for the courts, unwittingly enhanced by ministers’ growing fondness for setting policy objectives into law; we also describe the role of the European Convention on Human Rights, a proliferation of independent agencies, and a civil service beginning to press for its independence. The paper argues, however, that U.K. ministers who wanted to reassert their primacy could do this with straightforward legislative changes. The challenge is having the will and patience to see it through.
There are some U.S. parallels here. The most important is the need for clarity of vision and discipline in an incoming team.
The last U.K. conservative government was hopelessly divided between pro- and anti-Brexit, pro- and anti-lockdown, pro- and anti-woke, and pro- and anti-big government. Officials who didn’t like what their minister was proposing could sit on their hands and await the next reshuffle. Add to this exhaustion and a lack of understanding, even after 14 years, about how the governmental machinery worked, and the July fiasco looks less surprising.
In the U.S., the route to administrative reform has taken some curious detours. During the New Deal era, Republicans supported judicial oversight of the emerging administrative state, while progressives wanted unfettered presidential control. From the 1960s onward, the Left switched to put its faith more in judicial review and extending legal standing to pressure groups, while conservative judges supported judicial deference. More recently, the sides have flipped again, with conservatives promoting judicial review and contesting Congress’s habit of delegating legislation to agencies.
Three recent rulings could give an incoming presidential administration some opportunities. These are Loper Bright v. Raimondo, which overruled the Court’s 1984 Chevron decision and curbs agencies’ powers to develop the law; Seila Law LLC v. Consumer Financial Protection Bureau, which trims the limitations in Humphrey’s Executor (1935) on presidential powers to remove officers; and Trump v. U.S., with its broad statement of presidential competences. Combined, these point toward a coherent regime with agencies under tight presidential control but requiring explicit statutory powers from Congress. Such an approach requires a strong hand over the agencies, whose heads in the U.S. (and the U.K.), often inspired by Mark H. Moore’s book Creating Public Value, believe that they are political players who should work to set off various oversight functions against each other. It also means a greater demand for legislation from Congress, whose output has been declining for years.
In the U.K., these sorts of regulations are almost always enacted by “secondary” legislation. The former Lord Chief Justice complained that these are now essentially “proclamations,” given that the Commons has not voted one down since 1979 and the House of Lords since 2015. The process does, however, retain a clear parliamentary role and a direct line of accountability to the ministers who introduce them.
As for the administrative state, some close to Donald Trump have talked of reinstating the Schedule F order, potentially creating several tens of thousands of political appointees below the Senior Executive Service. Others, linked to Project 25, have envisioned a comprehensive reform of the civil service to make it more merit-based while also recommending major changes in the Departments of Justice and Education.
The more drastic the changes attempted, the more the political capital and senior management attention that will be expended. But sometimes you can get 80% of the outcome with 20% of the effort. You need to use every presidential appointee slot.
As for Schedule F, the question is: Do you have 20,000 to 30,000 administratively capable candidates to choose from? And if you did, would you want to concentrate them all in Washington? Working out how to direct and control the civil service of 2 million will have more impact than seeking to get the work done with a fraction of trusted officers above an unreformed and resentful remainder. I defer to U.S. experts here, but rulings like Trump v. U.S. and Seila seem to suggest broad powers to remove agency heads as well as executive officers. In most cases, shifting people quietly out of priority areas and bringing in more cooperative people should be the aim.
In the U.K., our Policy Exchange paper assumes some legislation will be needed to strengthen ministerial influence over appointments and agencies. In the U.S., some targeted test cases for the courts may achieve similar ends. Depending on who has control of Congress, legislation could also deliver longer-term reforms like the Project 2025 proposals, or amendments to agency statutes where Congress has constrained presidential influence—for example, through term limits or scaling back OMB oversight. This would tidy up the administrative machine directly serving the president.
Many on the U.K. political Right envy the U.S. president’s power to appoint so many senior officials directly. On the whole, however, getting a grip on the “headless fourth branch” looks easier in the U.K. system than in the U.S. That said, prospects for doing so in America look better now than they have for some time.
@stephenfhwebb is a former UK civil servant and head of Government Reform and Home Affairs at the UK think tank Policy Exchange.
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