In this episode, I speak with Philip Howard, the chairman of Common Good, a nonprofit that seeks to improve the lives of people across the country. He has been an attorney at Covington Burling, among other illustrious parts of his background, and is a regular contributor to the New York Times, CNN, and NPR. He is also the founder and chairman of the Common Good Foundation, a group that focuses on public policy, education, and economic growth. He is a frequent contributor to The Huffington Post, and has been featured in the New Yorker, the Wall Street Journal, and the New Republic, among many other publications. In this conversation, we discuss the role of the executive branch of government, and why it is the single greatest threat to the American Republic as it exists today, and what we can do about it, in the mundane reality of how that plays out in real life. I hope you enjoy this episode and share it with your friends, family, and loved ones. Tweet me if you liked it! and let me know what you thought of it in the comments section below! Timestamps: 1:00:00 - What is the biggest threat to our republic? 2:30 - What's the biggest problem facing us today? 3:20 - Why government needs to deliver? 4:00 5:40 - How can we fix our education system? 6:10 - Why is government a problem? 7:15 - What s the real threat to us? 8:30 9:00 | Why government is a bad idea? 11:30 | What are we need to do? 13: What s going to fix it? 14:15 | What s our responsibility? 15:00 // 16:00 Is government a good thing? 16: Is it a real threat? 17:40 | What is our country s role in the future? 18:00 How do we have any authority to solve problems? 19:10 | What can we do to fix things? 21:00 Do we have a better government? 22:00 What s a good government? | What do we need? ? 15 | Why does government need to be better? 20: What does government do it better than a better education, or a better country? 25:00 Does it need a better infrastructure? 26:40
Transcript
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00:00:02.000So the biggest myth in America today is that the people who we elect to run the government are the ones who actually run the government.
00:00:32.000It is a cancerous federal bureaucracy in the federal government that actually runs the show today that increasingly Views even people like me, even if I'm successfully elected as US president, view me as a polite little inconvenience that comes and goes every few years, but that it really is the permanent bureaucracy that actually runs the show.
00:00:52.000And part of the reason they view it that way is that's exactly the way the country is actually governed.
00:01:00.000We're taught growing up that there's three branches of government, the executive, the legislative and the judicial, that we have a system of checks and balances.
00:01:08.000Where each one of those branches checks the other.
00:01:12.000That becomes a farce when a fourth branch of government, the administrative state, actually operates outside of that system of checks and balances.
00:01:21.000The dirtiest part of how it was created is that that wasn't just an accident of history.
00:01:29.000I think it's the single greatest threat to not only capitalism, though that does create a regulatory state that impedes economic progress in America, It's also the single greatest threat to our constitutional republic and it's not gonna be something that happens in the future.
00:01:45.000It's a threat as it exists today in the mundane reality of how that plays out in real life.
00:01:51.000And today, I'm joined by somebody who knows about the details of how that plays out in real life.
00:01:57.000He's the chairman of a nonprofit called Common Good, but he's also been an attorney at Covington Burling, among other illustrious parts of his background that we'll perhaps hear about in this conversation.
00:02:07.000Philip, I'd like to welcome you to the podcast.
00:02:09.000I've been looking forward to this conversation.
00:02:40.000And if it doesn't deliver, if election cycle after election cycle, candidates promise, change we can believe in, and then nothing changes, people become increasingly cynical.
00:02:53.000And if government wastes money, tax dollars that ought to be used for many public goods get diverted into feather bedding or waste or programs that don't work.
00:03:05.000And what's happened at all levels of government In our society is that government is unmanageable and squanders money, you know, and doesn't deliver.
00:03:20.000I mean, you can't get a permit for high-speed transmission lines to go from the wind farms to the city.
00:03:41.000So give me an example, I mean, to make that real from your experience of where you see that falling at the feet of the administrative state in particular, rather than the executive or legislative branch of government.
00:03:56.000Well, I mean, starting at a local level, if you have a school that has not one student proficient in math or English, and there are 33 of those in Chicago, the only way you can fix it is change the personnel and change the way it's managed.
00:04:13.000But the governor, the mayor of the city doesn't have the authority to do that.
00:04:18.000And so the failure of these schools goes on and on.
00:04:21.000If you have an agency that supposedly is in charge of overseeing environmental reviews in the federal government, and no one will take responsibility to make a decision because they're afraid of the Offending someone, whatever.
00:04:36.000And the president has no authority to override them.
00:04:39.000Then you have this governing system that's like a hamster on a wheel.
00:04:46.000It just goes round and round and round.
00:04:48.000Lots of people work at it, and it doesn't do anything.
00:04:51.000So you're a lawyer, and I never practiced but trained as a lawyer as well.
00:04:57.000I guess I disagree with the characterization that at the presidential level, the president can't actually do something about it.
00:05:04.000I know that's been the conventional view.
00:05:06.000It's part of how we got to where we are.
00:05:09.000But the way I read Article 2 of the Constitution is it says that the duly elected President of the United States runs the executive branch of the government.
00:05:15.000And the way I understand that is if somebody works for you and you can't fire them, that means they don't work for you.
00:05:21.000It actually means you work for them because you're responsible for what they do without having any authority to change it.
00:05:26.000I'm looking at governing in a way that actually reads back into that plain understanding of what Article 2 says.
00:05:32.000But maybe we should get into the legal mechanics of that, given your background as a lawyer.
00:05:37.000Well, I just wrote a book arguing that you're correct.
00:05:40.000So I have a new book out called Not Accountable that argues that Congress lacked their constitutional authority in the Civil Service Reform Act of 1978 to put in these procedures that prevent the president from firing anybody and that the president therefore has the authority, which you just stated, to basically disavow Those procedures to disavow the requirement of collective bargaining.
00:06:41.000I mean, how can democracy work if you elect a president who Congress says you don't have the authority to manage the executive branch?
00:06:50.000Well, as you point out, Congress doesn't have that power.
00:06:52.000Do you make the case in the book that the civil service protections are themselves unconstitutional?
00:06:58.000Civil service as such is not unconstitutional.
00:07:02.000It's the controls that prevent accountability and that prevent manageability.
00:07:08.000For example, if you move an office in the federal government under most of those agreements, you have to collectively bargain who sits at what desk.
00:07:20.000If there's a new version, it's incredibly petty.
00:07:25.000The inefficiency of it, pick a number, 50%, two-thirds, you can't manage it.
00:07:32.000And so I argue in the book that the president should disavow the provisions that take away key management tools, such as accountability and basic resource allocation.
00:07:45.000You can have a civil service system That has neutral hiring.
00:07:50.000You can do, as the Lloyd Lafollette Act of 1912 provided, you can have a speed bump to guard against partisan firings.
00:08:03.000It's just an independent commission that looks and says if you're making decisions for the wrong reasons.
00:08:09.000But it's absolutely explicit in the Constitution, and James Madison could hardly have been clearer about this, that the executive power is vested in the president and the lowest levels, the middle grade, and the highest level report and are accountable as they must to the president.
00:08:35.000Let's say you're coaching me as the next president, right?
00:08:38.000How do you decide which provisions of those civil service protections to basically ignore, the civil service statutes to basically ignore that get in the realm of preventing a president from exercising reasonable executive authority as the framers envisioned from the parts that You would say are constitutional or a good law in ways that you have to actually respect.
00:09:03.000There's a tension in the Constitution between legislative power and executive power always.
00:09:10.000And so, you know, Congress sets budgets, all that kind of stuff.
00:09:13.000There are many things that Congress does that constrain the president, but the Supreme Court in scores of decisions has interpreted what executive power means.
00:09:28.000And it means you have effective day-to-day control over how agencies work.
00:09:35.000And so there's another way civil service works, which were all these elaborate procedures that take six to nine months to hire somebody.
00:09:44.000So that means you drive all the good people away, because nobody wants to wait nine months to see if they got a job offer or not.
00:09:51.000I mean, it's particularly bad in IT. Jen Palka has a book coming out about this, who founded Code for America.
00:10:00.000And so you just look at the provisions that prevent Affected management and you disavow them.
00:10:08.000Other provisions, such as the idea of, in general, of having neutral merit-based hiring, it's probably fine because it leaves a lot of discretion in the president still to decide who he wants to hire.
00:10:22.000So your basic coaching would be, but disavow, you basically mean, and this is, I think, reasonable to me, is the executive branch As the US president who leads the executive branch will pledge an oath to the constitution, to uphold the constitution, to basically just disregard, ignore that six to nine month process and just say, you're somebody good.
00:10:53.000You get sued by somebody, it goes to the Supreme Court, and the Supreme Court will uphold you.
00:10:57.000Because it's clearly correct under the, you know, again, scores of Supreme Court rulings.
00:11:05.000You know, what's interesting is, that's actually one of the ways of driving lasting change, is you codify that understanding in the Constitution, says that even if I'm governing that way and cleaning up the administrative state, The next guy who occupies the office isn't going to be encumbered by those same shackles.
00:11:22.000And that doesn't require Congress to act.
00:11:24.000It just requires codifying in judicial precedent the unconstitutionality of certain congressional overreach from the past, which is part of what motivates me so much more to run for U.S. president than for U.S. senator or anything else, is we can actually get this job done.
00:11:39.000And, you know, democracy has consequences, or it's supposed to.
00:11:46.000And it really hasn't had in recent years.
00:11:49.000As long as you've been alive, we've been electing people who couldn't make a difference.
00:11:53.000And a lot of it's because of the combination of all these controls that the legislatures have given to Will have imposed and even more insidiously given to their political supporters, the public unions.
00:12:10.000We'll get to public unions in just a second.
00:12:13.000But before I get there, actually, I want to talk about executive authority.
00:12:17.000One of the things I've said I intend to do is to shut down certain government agencies that should have never existed in the first place, like, say, the US Department of Education.
00:12:30.000I have my views on how I would go about doing it, but say you're advising me just on the mechanics, the plumbing of it.
00:12:38.000What would be the steps to shut down a government agency that represents the use of what the executive determines to be waste, fraud, abuse?
00:12:52.000I think that what you need before you do that, or before you, you know, say, fire half the people or whatever, is you need a new governing framework that then you can restaff to allocate those responsibilities somewhere.
00:13:09.000For example, I just did a paper for Forum in Columbia on the architecture of daily freedom.
00:13:20.000If we move back to a principles-based form of regulation, you don't need two-thirds of the people.
00:13:28.000Because we're just talking about administrators administering administrators, you know, where you have thousand-page rule books and procedures that go on for years.
00:13:39.000Go back to a system of human agency, responsibility, accountability, and all of a sudden, You know, 1,000 people in an agency can be done better by 100 people who are focused on public goals.
00:13:53.000So if you remake an agency that's goals-oriented and principles-oriented, then all of a sudden you don't need all those people.
00:14:36.000I mean, it's not that different than turning around a flailing business.
00:14:39.000I think that The Department of Education, in certain senses, is a different topic because that's an agency that I think should not exist in the sense that its mission should have never been performed by the federal government in the first place.
00:15:05.000Is fundamentally at odds with the function that it was supposed to perform in a way that's become ossified in that agency.
00:15:13.000It's fundamentally anti-nuclear at its core.
00:15:16.000It operates according to a cultural norm that doesn't really regulate nuclear safety.
00:15:21.000It's really just about ensuring that there are no nuclear power plants built in the United States and making this the gatekeeper that ensures it is so.
00:15:30.000According to your framework, you would say, let's actually bring in a new governing framework for the Nuclear Regulatory Commission, state it as such, and then figure out who is or isn't needed.
00:15:41.000A lot of the existing people need to leave, a lot of new people need to come in.
00:15:46.000This is like a management question, an execution question, but to me, that seems less likely to succeed when you have an agency with the same building, the same culture, the same norms, human beings, the same bureaucracy in the org chart.
00:16:00.000To know how you can pluck out and change that human behavior across tens of thousands of employees versus taking the alternative approach of shutting it down and then recreating and building from scratch something that's actually new and mission aligned to take its place.
00:16:14.000Both from a management perspective and a legal perspective, what's your reaction to that?
00:16:17.000Because I'm much more inclined to the latter in certain of these cases.
00:16:20.000Well, you know, if you're trying to change directions, so FDR created new institutions.
00:16:27.000He didn't do what he did through the existing institutions.
00:16:30.000He created the PWA, the WPA, the CCC, you know, all those different things.
00:16:38.000They were all new, run by people who were very close to him.
00:16:41.000And so if you're changing the mission of something, I agree with you entirely.
00:16:57.000You may want to remake a new agency based not on stopping it, but on focusing on...
00:17:06.000You know, reassurances that there are safe principles, and then going forward, so it doesn't take 20 years to build a nuclear power plant, which, in my view, we desperately need in this country.
00:17:22.000But if you take something like environmental review, which is the permitting of things like power lines, There's nothing wrong with the concept of environmental review, it's the execution of it.
00:17:36.000And so you need to put people in place who are willing to make the judgments about the trade-offs.
00:17:42.000You know, do we like sight lines or do we like, you know, the clean energy from the wind farms or whatever?
00:17:49.000You make the judgments, people who will make the judgments about You know, when you're doing this, I only need 50 pages on these three issues because those are the important environmental issues.
00:17:59.000That's the kind of judgments that aren't being made now.
00:19:44.000Their two-, three-, four-hundred-page collective bargaining agreements are designed to impose rigidities in management For no good purpose, the origin story of public unions, which only came into power in the 1960s, they were swept in almost as an afterthought of the rights revolution, has nothing to do with the origin story of trade unions when children were being mangled in factories in 1900 or whatever.
00:20:54.000This came into existence under JFK, right?
00:20:57.000Didn't he pass some sort of Well, in the federal government, there was an executive order under JFK, Executive Order 10-988, that allowed collective bargaining in the public sector except on wages, you know, in compensation.
00:21:15.000And then in the states and localities, it came in in the late 60s.
00:21:23.000And then it was codified in federal government in 1978. Where they imposed all these requirements.
00:21:34.000If you wanted to put a negative comment in the file of a civil servant, they can and will grieve it.
00:21:43.000The union will hire a lawyer to represent you, and you will have a legal hearing over whether you were justified in saying He doesn't work hard.
00:22:54.000And if you look at the statutes, there are all these elaborate procedures where you have to do performance improvement plans for somebody who clearly isn't trying.
00:23:04.000Then you have to wait months, and then you come back, and you go through the process again, and then they can appeal it, and it goes to arbitrators who are approved by the union.
00:23:38.000I wrote a book called The Rule of Nobody a few years ago, which is how we lost the human basis for governing.
00:23:45.000And so nobody, you know, we have this This culture, this system, we try to create a system of law and a system of government that's better than people.
00:24:06.000I'm looking forward to actually reading your book.
00:24:07.000It sounds like I said, like sort of a how-to manual or part of a how-to manual for my objective, which is to shut down that unconstitutional fourth branch of government.
00:24:16.000In parting, as we wrap this up, we're a great conversation.
00:24:20.000I'm kind of excited to potentially, if you'll be around at some point, join us on the campaign trail in places like New Hampshire, Iowa, et cetera, where we're going.
00:24:30.000Let's say it's at the top of my domestic policy agenda, because it is, to shut down the fourth branch.
00:24:38.000What would be your number one piece of advice to me on how I can actually get this done in a way that takes it beyond just an electoral talking point?
00:24:48.000Yeah, I think it's really important...
00:24:52.000For the public to understand that while all legacy systems take a life of their own, you know, and don't work anymore, the pharaohs are surrounded by eunuchs and the turkey by the janissaries and whatever, you know, and now we've got the fourth branch of government here that's completely independent of anyone, that we need to restore human control.
00:25:16.000And that means Abandoning this Rube Goldberg machine, this giant accumulated legal tangle.
00:25:26.000And so I would give people a vision of a framework for how government can meet legitimate public goals.
00:25:37.000And the way we're going to do it is going back to the way government used to work, where people are put in charge and they're accountable to the president for whether they're doing a good job or not.
00:25:47.000So I would start with the framework and the goals and then say, this is how we do it.
00:25:54.000And by the way, this means That we don't need, you know, half or two-thirds of the people working here.
00:26:10.000I'm grateful for this because there's one thing I care to get done domestically.
00:26:14.000I mean, on the international stage is declaring independence from China, domestic top priority, dismantle the administrative state.
00:26:20.000And that means having a framework, as you said, I mean, to perform the functions that need to be performed, but under a framework that actually gets the thing done rather than, you know, ossifying.
00:26:32.000The Democrats cannot be the party of good government because they're in the pocket of the unions.
00:26:40.000I think the new age Republicans should be the party of government that's needed, not all that we have, but whatever we have should be good government.
00:26:54.000Well, look, I think that you approach it from an efficiency and even an economic perspective.
00:26:58.000I start with the principles of restoring a constitutional republic, but I think that those bring us hovering right over the same flame of the managerial bureaucracy that exists today.
00:27:07.000And for that, I'm grateful for you sharing your thoughts.