The Bureaucrats Think That They Don't Answer To The President

Look in the Constitution, and you will find this very simple statement about the executive power of the United States (Article 2, Section 1):

The executive Power shall be vested in a President of the United States of America.

Sometimes it's called the "unitary executive."  Every single person in the executive departments of the federal government answers to the President.  It did not have to be set up this way.  For example, under the constitutions in many states, there are executive officers who are separately elected and don't answer to the governor.  In my own state of New York, this is true of the Attorney General and the Comptroller.  But in the federal executive branch, absolutely everybody works for the President.

Of course, that's not their view.  I mean, as long as the President is someone that you fundamentally agree with, it's generally OK to go along with him.  But, really -- Donald Trump???  Isn't there a basic constitutional principle that it's OK just tell him to get lost?

A small drama over this issue has just played out at the Justice Department, where Trump's nominee for Attorney General has been stalled for several days by Senate Democrats.  That has left in charge as Acting Attorney General an Obama holdover named Sally Yates.  As Trump's flurry of executive orders got to the big one on immigration, Yates took the opportunity to assert the federal bureaucrat's "I don't care what you say and I'll do as I please" privilege.  According to this article in the Wall Street Journal on Monday, Yates sent an email to the lawyers in Justice's Civil Division instructing them not to defend President Trump's executive order in court (in the face of a series of lawsuits that required immediate defense).  In her email, Yates acknowledged that the executive order had been reviewed by the Department's Office of Legal Counsel, which had determined that it was "lawful on its face."  Her email then stated that she had concerns about the legality of some aspects of the order, but did not specify what those concerns might be.  And then Yates said that, even without specific basis to believe the order to be contrary to law, she would direct the Department to decline to enforce it, because OLC's determination of facial legality did "not address whether any policy choice embodied in an executive order is wise or just. . . ."  

Needless to say, Trump promptly fired Yates.  But really, is it OK for the senior Justice Department official to thwart a direct order from the President, not on grounds of any specific illegality, but rather because of disagreement with the "policy choice" in question?  Of course, the DNC promptly rose to Yates's defense, with a spokesman calling her a "brave patriot" who "dare[s] to speak truth to power."  Huh?  Meanwhile, Alan Dershowitz (one of the very few progressives willing to state an honest opinion as opposed to an official talking point on any subject), writing in the Hill, got it right:

[Yates] referred to [the order's] possibly being unconstitutional and unlawful. Had she stuck to the latter two criteria she would have been on more solid ground, although perhaps wrong on the merits. But by interjecting issues of policy and directing the Justice Department not to defend any aspect of the order, she overstepped her bounds.  An attorney general, like any citizen, has the right to disagree with a presidential order, but unless it is clear that the order is unlawful, she has no authority to order the Justice Department to refuse to enforce it.

So, in this first round of Trump v. The Bureaucracy, Trump seems (for now) to have gotten his way.  But without doubt, this is only the beginning of a protracted struggle, likely to play itself out in many agencies and departments.  Another place where the struggle has already begun is the EPA.  As readers here well know, EPA is badly afflicted with the use of junk "science" to support its dreams of bigger budgets, a bigger empire, and greater control over the economy.  See, for example, my posts here and here as to EPA's more or less complete lack of scientific support for the proposition that there is any empirically-validated relationship between human emissions of CO2 and global temperatures.

So does the incoming administration -- which is rightfully skeptical of the politicized "science" coming out of EPA -- have any ability to stop the dissemination of junk science and make its own independent reassessment of the scientific landscape?  Look around and you will already find the crazed screams of "censorship" and "gag orders" hurled at every attempt of the new administration to try to get even a little control over the message.  For a particularly hysterical exemplar (but there are many) try this from the Daily Banter on January 26:

With Trump's Announcement That He Will Censor the EPA, America is Now a Pre-Fascist State . . . .  According to the AP the Trump administration will now be "Mandating that any studies or data from scientists at the Environmental Protection Agency undergo review by political appointees before they can be released to the public.”  

Apparently the position of the bureaucracy and its media allies is that the President has no ability to direct or restrict what public messages or information may be put out on behalf of his government.  That's "censorship"!  Does the same apply, I wonder, to national security information in the possession of agencies like State, NSA and the CIA?

Of course, we do have a First Amendment, and any current bureaucrat has the right under that provision to say whatever he or she wants on climate change and most other subjects.  But not on behalf of the government.  If you disagree with the new administration, and you want to speak out against them, the honorable thing to do is to resign.  If you don't, the President is well within his rights to fire you.  I don't think that the bureaucrats see it this way.