William & Mary Bill of Rights Journal


David Fontana


This Article—written for a symposium hosted by the William & Mary Bill of Rights Journal—focuses on the efforts by the Trump administration to relocate federal officials outside of Washington to reduce the capacity of the federal government. Federalism and the separation of powers are usually the twin pillars of structural constitutional law. Locating federal officials outside of Washington— federal decentralization—has been an additional tool of diffusing power that has started to gain some scholarly attention. These debates largely focus on structural constitutional law as constructive—as improving the capacity and operation of the federal and state governments. The power to diffuse becomes the power to democratize because more types of officials subject to more types of forces are empowered. There is another means of viewing these principles: as destructive rather than constructive. The power to diffuse becomes the power to destroy.

The Trump administration used federal decentralization in this destructive way. It attempted to reduce the number of officials who know how the federal government operates, with only minimal benefits in return. In the shorter term, these destructive efforts will be costly to reverse, thereby disabling important federal offices. In the longer term, it means that federal decentralization will not be associated with the Federal Reserve Bank or the lower federal courts, but with “drain the swamp.”