The Korea Herald


[Justin Fox] The bureaucrats’ legitimacy crisis

By Korea Herald

Published : Feb. 12, 2017 - 17:44

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These are interesting times to be a federal bureaucrat. You know, in the “may you live in interesting times” sense.

President Donald Trump’s executive order on immigration unleashed a wave of dissent in the State Department -- and a warning from White House press secretary Sean Spicer that dissenters should “either get with the program or they can go.” US Rep. Patrick McHenry, a member of the House Republican leadership, sent a letter to Federal Reserve Chair Janet Yellen last week demanding that the Fed stop negotiating agreements with foreign bank regulators “until President Trump has had an opportunity to nominate and appoint officials that prioritize America’s best interests.” Other House Republicans want to resurrect an 1876 rule that allows them to dock the pay of individual federal employees to $1.

You might think this is all due to the “unpresidented” rise of Trump. That’s definitely a factor, but the bureaucracy was undergoing a legitimacy crisis well before he got elected.

I know this because, last April, the Brookings Institution published a paper called “The Administrative State’s Legitimacy Crisis” by senior fellow Philip Wallach. I read it back when it came out, and I reread it last week; it’s a fascinating account of the long-running debate over who career federal employees should answer to. The debate has sharpened in recent years, Wallach writes, because:

“The ideal of self-government is threatened by government illegibility and incoherence. Only specialist elites seem to possess any ability to guide policy development, and trust in them has been diminished both by their increasing segregation and their evident failures.

“In theory, these specialist elites usually answer to the president and are subject to oversight by Congress. But some agencies, such as the Fed and the Consumer Financial Protection Bureau, are explicitly insulated -- presidents appoint their leaders but can’t remove them. And even in departments where the chain of command is clearer, the White House’s authority is circumscribed by the reality that most expertise and day-to-day control is in the hands of the career staff. For the overscheduled generalists in Congress, meanwhile, keeping a close eye on the regulatory state is pretty much impossible.”

Most examinations of this issue in recent years have focused on the relative powers of presidents versus the US Congress and the courts. Wallach references a recent debate between Columbia Law School professor Philip Hamburger, who argues the entire US framework of administrative law (the regulations and rulings handed down by federal agencies) is unconstitutional, and Harvard Law School’s Adrian Vermeule, who says Hamburger’s thinking is stuck in 17th-century England and suggests with tongue only partly in cheek that maybe we ought to just get rid of Congress.

More realistically, there’s a nascent movement to give the US Congress more capacity (that is, staff and resources) to oversee the executive branch. Wallach and Kevin Kosar of the R Street Institute floated the idea last fall of a congressional regulation office that would “serve as a Madisonian structural response to the profound power imbalance between the first and second branches.” Republican Sen. Mike Lee of Utah has been pushing similar ideas as part of what he’s dubbed the “Article One Project.”

With the arrival in Washington of Donald Trump, though, the lines of conflict have shifted, at least temporarily. As a populist with big ambitions, Trump needs a powerful administrative state to accomplish the things he wants to accomplish, and with Republican majorities in both the Senate and the House, he should be able count on more acquiescence from Congress than President Barack Obama got over the past six years. But after campaigning largely on resentment of the political and bureaucratic elite, he arrived in Washington at war with his own government -- and has seemingly only sharpened the conflict since taking office.

It’s an approach that has Wallach scratching his head. There’s always some tension with “the natives” when a new administration comes to Washington, particularly if it’s Republican, he said when I talked to him last week, “but previous administrations didn’t have quite the same tendency to view the government that they are head of as this hostile, alien force.”

They also didn’t have quite this much trouble filling positions below the cabinet level. “He’s been historically slow in making appointments,” Wallach said. “I don’t know if there are a few thousand people who are suitable in these jobs and have the Trumpian mindset of just how distrusted the government should be. The kind of people who are willing to do the work of governing are almost certain to have some pretty major disagreements with the kind of attitude that the Trump White House has so far cultivated.”

If the Trump agenda were just about shrinking government, this might not be such a big problem. But, as Wallach put it, “there’s a curious kind of relationship between populism and technocracy.” Trump wants to build a giant wall with Mexico. He wants to restrict immigration and trade. He can’t do those things by his lonesome. “The populists create demands and then have to find the people with the means to deliver on those demands,” he said. “You can’t just constantly be at war with these armies of people that you need to do the work competently.”

So the current White House approach doesn’t seem exactly ... sustainable. Then again -- given the legitimacy issues discussed above -- going to war with both the president and Congress doesn’t really seem sustainable for the federal bureaucracy, either. Something has to give.

By Justin Fox

Justin Fox is a Bloomberg View columnist.--Ed.