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Trump versus The Bureaucracy

After President-Elect Trump announced that he would separate himself from his business, the tweeter feed of the Office of Government Ethics (OGE) went berserk. It praised Trump for agreeing to divest himself of the ownership of his companies, a position which he had not announced.   OGE’s multiple twitter comments were often sarcastic, ending with exclamation points obviously intended to mock Trump’s own style.

To say that these comments were inappropriate is an understatement.  OGE lacks jurisdiction over Trump because the President and Vice-President are not covered by the conflict of interest rules on which OGE advises. And OGE helps presidential appointees with conflicts problems confidentially, reserving twitter for announcing new rules. Unless the director of OGE can get control of his agency, he should resign.

But OGE’s actions show what may be in store for the Trump administration from the federal bureaucracy: not only hostility but contempt. There are three problems President Trump faces.  One confronts any Republican President: the bureaucracy leans left.  Indeed, the average bureaucrat is not only more left-wing than the median Republican but also the median Democrat.

But Trump faces two additional problems. First, because Trump has made some incautious statements, bureaucrats can more easily fancy themselves as guardians of the rule of law when they are in disagreement. Of course, government officials should never act illegally, but under Trump they may feel more empowered to act on their own assessment of the law—an assessment that may well be influenced by their own ideology.

Second, unlike a President like Ronald Reagan, Trump’s policy views are not always fixed and considered.  As a result, he may appoint officials who may themselves not agree on basic philosophy. This divergence empowers the bureaucracy.  When political officials clash, bureaucrats gain greater power to shape the outcome, because they are relieved of consistent pressure from the top.  I saw the rise of bureaucratic power first hand when George H.W. Bush replaced Ronald Reagan, because on domestic issues Bush’s appointees often fought among themselves without much direction from the President.

An empowered bureaucracy verging on the insubordinate can wreak havoc on a President’s ambitious agenda.  There are simply not enough political appointees to get the work done without the support of career officials.  And bureaucrats can leak information to the press and otherwise obstruct the legitimate efforts of cabinet and agency heads.

But President Trump has three ways to tame the bureaucracy, all requiring self-discipline. First, he can act with scrupulous attention to the law and avoid making any statements that suggest he may act illegally. Second, he can make sure that his appointees are in broad agreement on policy.  One way of doing this at the agency level is to give his agency heads broad power to staff their own departments so bureaucrats will not face conflicting signals.

Finally, he needs to appoint people are unafraid of illegitimate criticism and who are willing to stand up to the ideologues among the bureaucracy. The best way of doing that is to find people who have been previously tested in government and learn how they performed. Sadly, many untested political appointees are content enjoy the trappings of power and seek to avoid any political heat. Because the bureaucracy makes agencies more contentious places in a Republican administration, this complacent attitude can lead to policy drift, political stagnation, and the political failures of a high order.

Reader Discussion

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on December 05, 2016 at 00:58:22 am

The President does have some potential powers he could invoke.

1) Any employees who the president feels is not properly executing the law, he could potentially terminate under his own duty to see that the law is faithfully executed. Potentially such terminations could not constitutionally be prevented. Even under humphrey's executor, the Courts have not gone so far as to say the President could not do this even to independent agencies.

2) Potentially Congress could amend or abolish the Civil Service Reform Act of 1978 and return all federal executive employees to at-will employment. Post-removal process can still be put in place to prevent discrimination or termination of whistleblowers.

3) Could challenge humphrey's executor or the Civil Service Reform Act of 1978 in the courts as unconstitutionally limiting the executive power of the president over executive officers given that all executive power is vested in the President alone.

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Devin Watkins

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.