Bureaucratic Assistance

by Chris Walker — Saturday, Nov. 3, 2018@chris_j_walker

We just wrapped up the American Bar Association’s annual Administrative Law Conference, which was a terrific event and broke records with more than 700 adlaw geeks in attendance. I had the privilege of moderating the final panel of the conference, focused on the future of the federal civil service. We had a terrific panel and a very lively discussion (to perhaps put it mildly).

First, Rebecca Ingber discussed her article Bureaucratic Resistance and the National Security State, which is forthcoming in the Iowa Law Review. In this article and in her remarks, Ingber explored the differences between the “deep state” and “benevolent constraints” approaches to bureaucratic behavior. She also argued that the propriety of the various tools for bureaucratic resistance varies depending on the legal or policy nature of the acts subject to resistance.

Second, Jennifer Nou discussed her posts on this blog concerning bureaucratic resistance — the only blogs posts I’m aware of that have ever been reviewed by Jotwell — and discussed her current project of analogizing some types of bureaucratic resistance to civil disobedience. I’m very excited to read a draft of this paper once it is publicly available.

Third, Philip Howard made the argument for sweeping reform to the federal civil service, based in part on his essay in American Interest entitled Civil Service Reform: Reassert the President’s Constitutional Authority. Go check out his essay to get a better sense of this approach to civil service reform.

Finally, Francine Kerner provided her real-world, agency-level perspective on the federal civil service based on more than forty years of federal government service, including in her current role as Chief Counsel at the Transportation Security Administration.

There is so much food for thought from this panel with respect to bureaucratic resistance and the degree of political control of the federal civil service. But I wanted to note in this short post one point concerning what I’ll call “bureaucratic assistance.”

During her opening marks, Kerner discussed how career agency officials often play an important, oft-overlooked role in helping advance the political leadership’s policy agenda. They do so by providing political cover for changes in agency policy. Sometimes that involves taking blame; other times it involves articulating strongly what is, and is not, allowed under existing statutory and regulatory authority. This bureaucratic assistance is different from the civil service’s more conventional role of helping the agency fulfill its statutory mandate because the career officials are specifically leveraging their civil-service, non-partisan status to help the political leadership effectuate change.

Such bureaucratic assistance no doubt strengthens the relationship between the political and career folks within an agency. One could also imagine this introducing some additional dangers into bureaucratic behavior. I’m not aware of scholarship on this phenomenon; if others are, drop me a line, and I will update this post accordingly. Bureaucratic assistance may be a fascinating scholarly project as a complement to the burgeoning literature on bureaucratic resistance.

 

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and as Vice-Chair of the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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