In Agenda47: Liberating America from Biden’s Regulatory Onslaught, Donald Trump committed to “require every federal employee to pass a new Civil Service test demonstrating an understanding of our Constitutional limited government…”
When candidate Trump raised this issue in a June 2023 speech (video linked), he got the biggest applause out of all the policy issues he raised, which included the landmark SCOTUS ruling overturning Roe v. Wade, a commitment to free speech, and restoring pride in American history and confidence in our future. While all of these issues are major priorities for Trump supporters, clearly the constitutional test garnered the most enthusiasm and should be pursued.
Unfortunately, if the intent of such testing is to restore constitutional boundaries to the federal government, the test as described by Donald Trump cannot succeed. Consider:
- Federal law passed in 2004 already requires constitutional training, which includes knowledge testing, for new federal employees. The law also requires agencies to make the training materials available to all employees annually; announcements telling all federal staff that the material is available for review are made on or before September 17 each year.
- As a former federal employee, I can attest and demonstrate that current federal constitutional training satisfies the legal requirement but makes a mockery of the purpose of the law (i.e. ensuring constitutional governance).
- The underlying assumption with knowledge tests is that that test takers who acquire knowledge of the test material will subsequently change their behavior in ways that are consistent with that newly acquired knowledge. Behavioral psychologists refer to this as the knowledge (or information) deficit model of behavior change. But the model fails if social or organizational perceived norms are at odds with the information provided in training.
- I estimate that ~90% of federal agencies and programs are unconstitutional; their missions have no clear connection to any enumerated power. It is perfectly normal for the Deep State not to care about its constitutional illegitimacy. Most people working for the Deep State will pass the knowledge test, but it will have zero impact on their day-to-day behavior because there is no current way to force constitutional behavior among those who don’t care about constitutional legitimacy.
- Candidate Trump’s plan for a constitutional knowledge test will not succeed because similar mandatory testing already exists, and over two decades it has demonstrably failed to bring the federal bureaucracy in line with the Constitution. In fact, it is clear that the overtly partisan Deep State has flourished and become increasingly bold over the two decades that federal constitutional training has been mandatory.
A Better Approach
Instead of making illegitimate government programs more efficient, as Elon Musk has suggested, President Trump should put a constitutional wrecking ball through the entire illegitimate civilian Deep State.
By Executive Order on Inauguration Day, issue a decree outlining concerns that the federal government is no longer constrained by the U.S. Constitution, as ratified and amended by the various states. To uphold the solemn oaths taken by all federal employees, including the president, the EO would require the following steps to root out constitutionally illegitimate agencies, offices, programs, and positions:
- Establish a DOJ taskforce assigned to prosecute oath-breaking Executive Branch staff for perjury if they continue to work in offices and/or hold positions that have no constitutional legitimacy;
- Require all federal staff, within a reasonable amount of time (e.g. 30 days) to:
2a. Affirm under oath via signed affidavits that he or she took the oath of office as a pre-requisite of federal employment, promising to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter…”;
2b. Affirm in Constitutional Legitimacy Statements contained in said affidavits the specifically enumerated constitutional power in Article 1 Section 8 under which his or her agency, program, AND his or her specific job exists (see example below) ;
2c. Ideal Constitutional Legitimacy Statements would consist of a couple of short paragraphs, and the signed affidavits containing them would be sent using the official email address of each employee to his or her supervisor;
2d. Paragraphs should be concisely written in plain English so the connection between agencies, programs, and specific job duties and their corresponding constitutionally enumerated federal powers would be obvious to reasonably literate American citizens.
2d1. Job duties must reflect all duties listed in each employee’s annual performance agreement that is in effect on the date the EO is issued and any additional work performed at least weekly.
2e. The EO should encourage federal employees who realize their offices and/or positions have no constitutional legitimacy to resign immediately to avoid referral to the DOJ taskforce for having committed perjury when taking the oath of office. - Require federal supervisors to affirm under oath that the program and specific job descriptions provided in Constitutional Legitimacy Statements submitted by direct-report staff accurately reflect the official program and job duties of each individual (i.e. supervisors shall only affirm program/position description accuracy, not constitutional legitimacy);
3a. Sequentially higher federal managers shall randomly audit Constitutional Legitimacy Statements they receive from lower-level supervisors who report to them, ensuring program/position description accuracy;
3b. Political appointees are the apex managers through whom all constitutional legitimacy statements must be submitted;
3c. Managers whose audits reveal misleading or substantially false program/position descriptions from their direct reports shall notify their apex political appointees, who shall refer said descriptions and the employees who wrote them to the DOJ taskforce for consideration of perjury charges. - Establish jury-like (We the People) panels of American citizens in every county of every state (but no territories, since they have no ratification power) to adjudicate the Constitutional Legitimacy Statements;
4a. juries will be trained on the Constitution, focusing on Article 1 Section 8 and related historical documents, then given no more than 715 of the Constitutional Legitimacy Statements to review (2.25 million federal employees / 3,143 counties);
4b. Over the course of ~ten business days, the juries would grade each Constitutional Legitimacy Statement by vote. My plan has a scale from Unanimously Reject/Concur to Simple-majority Reject/Concur, with each category having specific actions that would be taken depending on the result.
*For example, unanimous concurrence on the constitutional legitimacy of both program and position would result in a jury recommendation that the employee continue working for the benefit of the American People.
*Unanimous rejection on both program and position would result in a jury recommendation for immediate termination and referral to the DOJ task force for prosecution of the individual under 18 U.S. Code § 1621 - Perjury generally.
This proposal is very different than the general constitutional knowledge test President Trump announced as part of his current campaign. My test would require each individual to identify the specifically enumerated constitutional power in Article 1 Section 8 under which his or her agency AND his or her specific job exists. Employees would also have to provide a short paragraph that would make those connections between their agencies, their jobs, and specifically enumerated powers clear to Americans who are reasonably constitutionally literate, including having knowledge of the relevant Federalist Papers etc, so their knowledge would be comparable to politically interested Americans when the Constitution was ratified.
Example Constitutional Legitimacy Statement
I work in the EPA’s Office of Pesticide Programs, which regulates pesticides consistent with the Federal Insecticide, Fungicide, and Rodenticide Act. FIFRA was created under the constitutional authority of the Interstate Commerce clause (Article 1, Section 8, Clause 3). My office ensures that pesticides registered at the federal level can be used according to the label instructions with reasonable certainty that they won’t cause harm to people or the environment, regardless of the American state or territory in which the products are manufactured, distributed, sold, or used.
In my job, my primary function is to respond to inquiries from members of Congress, stakeholders, and the public about the EPA’s pesticide regulatory approach and registration decisions. Needless to say, pesticides can be a controversial topic. My job is a “necessary and proper” function (Article 1, Section 8, Clause 18), since the First Amendment guarantees the right of the people to “petition the Government for a redress of grievances.” When Americans write to express concerns about EPA’s pesticide regulatory decisions, the government is obligated to respond. That’s what I do every day.