In the closing days of the Trump administration, the White House issued Executive Order 13957 creating a “Schedule F” category of federal employees. Schedule F workers could be fired at will, and federal agencies were ordered to move large numbers of employees into this category.
The Biden Administration immediately rescinded Schedule F upon taking office. But James Sherk, one of the Trump officials responsible for Schedule F, has been hard at work at the Heritage Foundation defending the initiative, and laying plans for re-introducing it should the Republicans reclaim the White House in 2024. He has published a number of pieces defending at-will removals, arguing that procedural protections for bureaucrats are far too strong, allowing them to act with impunity. One of his recent blog posts details cases in which career bureaucrats defied the wishes of Trump administration bosses to protect their own favored policies. Sherk and other conservatives believe that the federal bureaucracy has a distinct liberal bias that seeks to stymie conservative policies.
___STEADY_PAYWALL___Getting bureaucrats to implement decisions by political principals is an age-old problem. China, the civilization that invented bureaucracy, gave political authority to the emperor, but countless emperors found themselves stymied by powerful bureaucrats. They resorted to reliance on a household corps of eunuchs to control the bureaucrats, but then the eunuchs themselves began acting independently, which required the creation of a “eunuch rectification bureau.” We see modern versions of bureaucratic resistance in the behavior of Humphrey, the senior British bureaucrat in the classic BBC series “Yes Minister,” who has his minister wrapped around his little finger. There is a huge cumulative record of bureaucrats slow-walking, failing to inform superiors of ongoing initiatives, and at times forthrightly defying political mandates. Sherk’s examples are for the most part pretty trivial, like staff lawyers at an agency failing to write timely briefs and—horrors—forcing their new bosses to do the work themselves.
In conventional democratic theory, there is a clear hierarchical authority relationship between elected politicians and bureaucrats. The former, reflecting the will of the people, act as principals who issue mandates, and the bureaucrats are their agents whose duty is to carry those mandates out. Normative theory says that bureaucrats should not impose their own wishes in place of those of their political bosses, and should be accountable for bad behavior.
In the real world, however, things have never been that simple. Authority often travels in the opposite direction, from the agents to the principals. Sometimes this happens for bad reasons, with bureaucrats trying to protect themselves at the expense of the public interest, and in some cases covering up incompetence, corruption, or criminal behavior. But in other situations bureaucratic resistance is more justified and, in extraordinary circumstances, necessary for the survival of the political community.
One important reason why political bosses often need to defer to bureaucrats is that the latter simply know more than they do. Political appointees regularly come into office with high hopes of effecting big policy changes without understanding the complexities of implementation, political constraints, or unintended consequences flowing from their policies. At times, they may not recognize that what they want to do is illegal, as when the Trump administration early on sought to ban immigration from Muslim-majority countries.
Bureaucracies are notoriously self-protective, but sometimes that self-protection serves an important purpose in preserving state capacity. An example of this took place during the Trump administration, when the President appointed Michael Pack to be the CEO of the U.S. Agency for Global Media (USAGM). USAGM oversees media groups like Radio Free Asia and Radio Free Europe/Radio Liberty. Pack immediately fired all of the directors of USAGM’s media networks, replacing them with political loyalists whose mission favored promoting the Trump agenda internationally.
The experienced journalists at USAGM understood that their effectiveness depended on their credibility with non-American audiences, and not with how their messages played in Texas or Tennessee. That credibility, in turn, rested on their not seeming like the propaganda arm of a particular U.S. administration. This institutional independence from politics was, after all, what made the BBC a widely trusted source of information. In one fell swoop, Pack was threatening to destroy the credibility that these journalists had built up over the decades. It is safe to say that many staff members, often emigrés in exile from the countries they were covering, were not eager to promote the Trump message. Many quit as a result.
So yes, there was a lot of resistance to Trump administration policies on the part of federal agencies. The destruction of USAGM’s credibility was, in the end, a relatively small matter compared to other acts of resistance. Take the behavior of General Mark Milley, who recently retired as chairman of the Joint Chiefs of Staff. As detailed by Jeffery Goldberg in The Atlantic recently, Milley clashed with Trump on numerous occasions, especially after Trump tried to enlist his support for a violent crackdown on Black Lives Matter protesters in Lafayette Square. He tried to dissuade Trump from pardoning Eddie Gallagher, the former U.S. Navy Seal convicted of war crimes, but discovered that the former President did not believe in the possibility of a war crime.
Milley became very particularly worried in the period after the January 6 insurrection that President Trump would do something crazy involving the U.S. military in his quest to stay in office. He conferred with Mark Esper, the Secretary of Defense, and other senior officials, and made two calls to his Chinese counterpart to reassure him that the United States would not be initiating hostilities toward China. After Trump fired Esper and tried to insert his loyalist Kash Patel into the Defense Department, Milley warned his new nominal boss that he would see the world “from behind bars” if he tried to interfere with the peaceful transfer of power.
For this revelation, President Trump asserted on Truth Social that Milley had committed an act of treason, “an act so egregious that, in times gone by, the punishment would have been DEATH.”
This case illustrates the limits of the conventional framework within which we think about bureaucratic subordination. Principal-agent theory breaks down in the case of a Mad King. As Milley himself explained, he took an oath to uphold the Constitution, and not an oath of personal fealty to Donald Trump. After January 6, it was the legitimately elected chief executive who had become the chief threat to that constitutional order.
The extraordinary events that unfolded from January 6 onwards required extraordinary responses. Subordinates can never be required to commit criminal acts; the U.S. military teaches its officers and enlisted men that they are not obligated to blindly follow orders from their commanders. But short of criminal acts, what others kinds of orders can be legitimately resisted? If a political leader acting out of pure ignorance states that a drug with dangerous side effects is an effective remedy, or incorrectly asserts that a hurricane is about to strike a particular region, are bureaucrats required to salute and support their boss? Do public officials have to cooperate in the undermining of their own agencies?
The existing rules regarding bureaucratic authority were meant to cover routine situations. Clearly, government would not function if subordinates typically took it on themselves to defy orders from legitimate superiors. And yet, there is a general case to be made for the virtues of bureaucratic conservatism that make agencies resistant to dramatic change. That conservatism makes rules and regulations stable and predictable. It is also what protects expertise and state capacity.
This is not to say that bureaucrats should be protected across the board. Greater flexibility in removals à la Schedule F could actually be useful in disciplining poorly performing officials when used by a leader who genuinely wanted to make the government more effective. I find it utterly horrifying that there is a real prospect of re-electing a king who has proven himself utterly mad and unfit to rule, and would use his power instead to destroy the very government he led.
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