Quick quiz: Which of the following do we live in?
- Constitutional republic. We have elections where the voters periodically choose a new President. The new guy gets to come in and run things differently -- that's what elections are for. Government employees have a constitutional duty to take their orders from the duly-elected President.
- Progressive bureaucratic utopia. The government is really run by a permanent cadre of omniscient, apolitical experts who can use the government's power as they see fit and as guided by their expertise. If a newly elected President disagrees with their expert judgment, the bureaucrats can tell him to get lost.
If this simple test were administered today to the federal civil service, I really wonder if any significant percentage would get the answer correct. The consensus view of the bureaucrats today is that it is perfectly appropriate for them to resist the directions of President Trump and his political appointees -- and, more incredibly, they think that in doing so they somehow occupy the moral high ground. The truth is that they are systematically violating their oaths of office.
A notable example of this phenomenon occurred immediately after the inauguration back in January, when holdover Acting Attorney General Sally Yates took it upon herself to order the attorneys in the Justice Department not to defend the new President's Executive Order on immigration, thus directly countermanding presidential instructions. I covered that action on February 1 in a post titled "The Bureaucrats Think That They Don't Answer To The President." Yates did not even attempt to contend that the President's Executive Order was contrary to law, but instead justified her action on the ground that Justice's Office of Legal Counsel had not addressed whether "any policy choice embodied in [the] executive order is wise or just. . . ." Yates was promptly (and appropriately) fired.
Since January things have only gotten worse.
Before getting to a recent extreme example, let's first go over the basic legal principles that govern this situation. In terms of the formalities, it would certainly seem that we have the constitutional republic. To start with, we have the Constitution, and in Article 2, Section 1 the Constitution grants all of the executive authority of the United States to the President: "The executive Power shall be vested in a President of the United States of America." It's hard to think of something more explicit that they could have said to make it clear that everybody in the executive agencies works for the President. The President then does have the duty to follow the law (Article 2, Section 3: "[H]e shall take care that the laws be faithfully executed. . . ."), but notice that that duty is the President's duty, not somebody else's. And then there is the oath of office taken by every federal civil servant (from 5 U.S.C. Section 3331):
I . . . do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same. . . .
As I read it -- and I don't think there's any other way to read it -- for an executive branch employee that oath says first and foremost that you agree that you work for the President. Far and away the most important part of "supporting the Constitution" for a federal executive branch employee is to recognize that you ultimately answer to the President and only to the President. To attempt to read the oath differently to allow for the bureaucrats to have power other than that coming from the President would be to eviscerate the elections and render the Constitutional structure meaningless.
With that context, consider this op-ed in the Washington Post on Wednesday, headline "I'm a scientist. I'm blowing the whistle on the Trump administration." The piece is by a guy named Joel Clement, one of the top career bureaucrats at the Interior Department, and a "scientist" whose portfolio at Interior has included "climate change." A month or so ago, as part of a departmental reorganization, Clement was reassigned to a job in accounting, collecting royalty checks from oil companies. Clement:
I am not a member of the deep state. I am not big government. I am a scientist, a policy expert, a civil servant and a worried citizen. Reluctantly, as of today, I am also a whistleblower on an administration that chooses silence over science. Nearly seven years ago, I came to work for the Interior Department, where, among other things, I’ve helped endangered communities in Alaska prepare for and adapt to a changing climate. But on June 15, I was one of about 50 senior department employees who received letters informing us of involuntary reassignments.
I love that part where he starts the piece by saying "I am not a member of the deep state." What do you think the term "deep state" refers to, pal? You are precisely a guy who has a fundamental policy disagreement with the President over the agenda of your department, and you are asserting the "right" to keep doing it your way and ignore the orders of the President as given to you through his deputy, here the Secretary of the Interior. So Clement has decided to become a "whistleblower":
On Wednesday, I filed two forms — a complaint and a disclosure of information — with the U.S. Office of Special Counsel. . . . Removing a civil servant from his area of expertise and putting him in a job where he’s not needed and his experience is not relevant is a colossal waste of taxpayer dollars. Much more distressing, though, is what this charade means for American livelihoods.
Or to put it another way, I'm right and Trump and Zinke are wrong on a policy issue, and therefore I'm going to force the President to keep me in my previous job where I can work to undermine the policies that the new administration wants to implement. I also like the use of the term "whistleblower." Previously I had thought the term referred to bringing to light things like criminal activity, corruption, theft of government funds, or the like. Not any more. Now the term seems to have a new meaning: "I'm going to tell the world that the administration is trying to implement the policies that got it elected by moving aside obstructionist bureaucrats such as myself!" OK Mr. Clement, what exactly is wrong with the President trying to implement the policies that got him elected?
You probably think that across the government people who understand the Constitution are pointing out to Clement that Trump and Zinke have every right to do what they are doing and his choices are to go along with it or quit. Actually, the opposite. From GovExec.com, July 20:
Clement said he has received a “groundswell of support” from federal employees across the government since he published the op-ed on Wednesday.
And then GovExec quotes someone named Deborah D'Agostino, a lawyer whose practice includes representing federal employees in "whistleblower" claims. She comments on the prospective Trump administration response to Clement's claim:
“I can’t fathom the agency is going to be able to put something up other than, ‘Well, we have the right,’ ” she said. “It’s not something that makes sense to any reasonable person.”
So according to Deborah we have reached the point where "no reasonable person" could possibly think that the President has the right to exercise his constitutional authority in order to implement the policies that got him elected. Whew!
Of dozens of articles out there about this guy, I can't seem to find a single one that makes the obvious points that a President has the right to implement the agenda that got him elected by issuing orders to his subordinates, and the employees have the obligation to follow the orders from the boss. As just one more example of the "deep state" view of the situation, consider Inside Climate News from July 20, "Whistleblower Case Shows How Trump Tries to Silence Science":
[A] senior agency official has invoked the protections of the whistleblower law to publicly object to what he calls an illegal attempt to intimidate him. The official, Joel Clement, had been the director of the Office of Policy Analysis at the Interior Department before he says he was arbitrarily reassigned to an obscure accounting post to punish him for speaking up about protections for native Americans in Alaska.
The voters elect a new guy with a specific agenda to change the policies of the previous administration. The new guy comes in and proceeds to move aside -- even fire! -- the holdovers standing in the way of implementing the new policies. Is this an "illegal attempt to intimidate" the bureaucrats? It looks to me like they are systematically violating their oaths of office. Civil servants violating their oath of office can and should be fired, and the sooner the better.