Taming the Shallow State, by Jennifer Nou

by Jennifer Nou — Tuesday, Feb. 28, 2017@Jennifer_Nou

The gloves have now come off in the battle between President Trump and an increasingly alarmed federal bureaucracy. EPA employees are in the streets. The National Park Service is sending out insubordinate tweets. Intelligence agencies are not just leaking, they’re gushing. Bureaucratic resistance is, of course, not new. But what does seem unprecedented is the degree of open defiance, no doubt prompted by Trump’s own naked hostility. Much has been made of this presidency’s corrosive effect on political norms. Count as another casualty the civil service’s professional ethos and respect for democratically-elected superiors.

Public resistance of this sort has its merits, among them transparency and the opportunity for dialogue. But it also has consequences, some unintended. One is the inevitable crackdown from above. As David Hume observed, “where a disposition to rebellion appears among any people, it is one chief cause of tyranny in the rulers, and forces them into many violent measures which they never would have embraced.” In other words, overt uprisings can stoke even stronger authoritarian impulses — irresistible to a man already predisposed to them. So while some are warning of the dangers of a “deep state,” a shadowy bureaucratic underground, equally worrisome are the perils of a shallow one: a resistance marching boldly in the light.

The question now is not whether the hammer will fall, but how hard. Indeed, one of Trump’s top advisors has recently called for the “deconstruction of the administrative state.” What could this mean — what measures have presidents historically taken to beat back their perceived foes? Perhaps the most obvious method for taming the bureaucracy has been to try and weaken their job protections. After 9/11, for example, George W. Bush unsuccessfully tried to get rid of Department of Homeland Security personnel safeguards. Civil servants are currently removable “only for such cause as will promote the efficiency of the service.” Unlike most private employees, that means they can’t be fired at-will. Various current bills in Congress would reverse that. Whether they succeed will depend on how much political capital legislators and Trump want to spend pursuing this radical change.

Short of that, one of Trumps’ favorite catchphrases was “you’re fired” — and he won’t be shy about using it now. But under current law, getting rid of a tenure-protected civil servant is no mean feat. Career staff are entitled to due process before they can be deprived of their jobs; moreover, they must be granted in person-hearings by statute. The resulting decisions are appealable to the Merit Systems Protection Board. This Board currently has only one Obama-appointee and thus lacks a two-member quorum. So it’s basically defunct until Trump appoints another member, and who knows when that’s going to happen?

But there is another way that Trump can get rid of career employees: by using “reductions in force” (RIFs). RIFs are basically federal government layoffs that agencies can undertake by citing reorganizations, a lack of work, or a shortage of funds. Agency budget-cutting is on the horizon, thus setting the stage. President Reagan reportedly used RIFs to slash 15,000 federal workers in his first year in office. Look out for this strategy especially at the Environmental Protection Agency (EPA), the most likely site of all-out internecine warfare. Revealingly, incoming EPA Administrator Scott Pruitt shuttered his own office’s Environmental Protection Unit as Oklahoma Attorney General. That all said, RIFs are subject to cumbersome regulations that limit the swiftness with which they can be undertaken.

If blunt hammers are difficult to wield, then Trump has more targeted tools at his disposal too. He has already threatened, for instance, to prosecute leakers. But the legal and political dynamics of leak prosecutions are fraught. They implicate sensitive interagency relationships, must navigate numerous legal hurdles, and can ultimately chill speech the White House finds useful. So, for now, Trump may be happier just tweeting threats, rather than following through with them.

If so, Trump could also try to find a willing lackey in the House to deploy the recently revived Holman Rule. The rule allows single House members to propose appropriation bill amendments to effectively zero out the salary of a civil servant. The amendment would still need House and Senate majorities to become effective, blunting its ultimate power. But by allowing members to bypass traditional congressional procedures, the rule could set up the spectacle of a legislator currying favor with Trump by amplifying his tough talk — through the naming and shaming of particular federal workers.

Finally, perhaps the most effective way for Trump to subvert the bureaucracy is simply to sideline them. Agency decisions are often made through intra-agency clearance procedures that can be routed — or not — through career appointees. All the EPA’s Scott Pruitt would need to do is to cut civil servants out; stop consulting them. Even if they are consulted, Trump could also impose internal structures to ensure that his underlings are there to overrule them. Indeed, this strategy is already on display in Trump’s most recent regulatory reform executive order. The order, among other things, requires agency heads to designate a Regulatory Reform Officer. That officer, along with the agency head, is going to be on the hook for carrying out the White House’s priorities.

Surveying the foregoing, many will celebrate this inevitable presidential backlash. They view an uncowed bureaucracy as undemocratic, even unconstitutional — and, in many scenarios, they will be right. Think, for example, of the career appointee that goes rogue in bad-faith to pursue a personal agenda. But, in other scenarios, they will be wrong. One need not invoke the Holocaust to identify these: executive directives to flout final court orders, for instance, immediately come to mind. Indeed, Congress itself has protected federal employees who refuse to obey orders “that would require the individual to violate a law.”

Those who believe there is a legitimate role for pushback, then, will be heartened that civil servants have a lot of artillery with which to lead yet another round of counter-attack. Reflecting on this state of affairs, however, one can’t help but think that what may ultimately be the loser here is the administrative state itself. The potential for mutually respectful progress will instead be squandered for mutually assured destruction. Destruction is what Trump wants, but the institution of the presidency also stands to be weakened in the long term. Policies that the president favors will not be as informed nor as effectively executed as they otherwise could have been. It’s not too late for either side to come down from the ledge. But doing so will require a fair measure of humility — something neither camp currently seems eager to display.

 

Jennifer Nou is the Neubauer Family Assistant Professor of Law at the University of Chicago Law School.

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About Jennifer Nou

Jennifer Nou is Neubauer Family Assistant Professor at the University of Chicago Law School. Her research and teaching interests are primarily in administrative law, legislation, and the separation-of-powers. Prior to joining the faculty, she was a Public Law Fellow at the Law School and also worked as a policy analyst and special assistant at the Office of Information and Regulatory Affairs. Jennifer is a graduate of Yale College and Yale Law School, and received an M. Phil in Politics from Oxford University as a Marshall Scholar. After law school, she was a law clerk to Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and then to Justice Stephen Breyer of the U.S. Supreme Court.

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