Publication Date

2019

Abstract

Administrative agencies are hierarchical bureaucracies. But those on the lower rungs don’t always fall lockstep in line with those at the top. Reasons vary. Sometimes, intra-agency communication is poor. Those laboring below may not know the preferences of their superiors. Even when this information is available, sometimes bureaucrats are lazy; they can “shirk.” Or they may simply disagree with what their bosses want; they might “drift.” Each of these themes have been mainstays of principal-agent models across various disciplines.1 Legal scholars too have studied bureaucratic resistance, mainly of civil servants within the executive branch.2 These analyses have mostly endorsed career staff serving as a check on executive overreach.3

The Trump administration has renewed interest in the subject,4 as many perceived the traditional separation-of-powers to be in peril, especially in a time of unified government. Trump’s rhetoric and choice of agency appointees heightened the sense that political norms and institutions were at risk. If the press couldn’t constrain a media-savvy President, many hoped, perhaps a principled bureaucracy could. And like it or not, civil servants have come out swinging. Some have reportedly created support groups to oppose the Trump Administration and signed up for workshops on how to resist.5 Others have filed complaints with inspectors general offices.6 Career staff have allegedly taken to social media to voice their opposition, whether in the form of alternative Twitter accounts or more official channels.7 Others have drafted reports to reach conclusions contrary to those desired by policy officials.8

Bureaucratic resistance is hardly new—as evidenced by the decades of scholarship studying it. Staffers at the Bureau of Land Management under President Clinton, for example, confessed to leaking internal documents to the media before any official policy announcements were made.9 Careerists at the Department of Agriculture reported to working-to-rule: doing what was “technically required” but refusing to “advocate” for the food stamp policies of President Reagan.10 Indeed, the Reagan Administration also encountered well-documented friction with enforcement officials at the Environmental Protection Agency (EPA).11

What seems potentially novel in the Trump Administration, however, is the extent to which that resistance is publicly defiant.12 Instead of being covert or channeled through official mechanisms, a greater degree of dissent seems to have spilled out into the open by civil servants identified as such. Bureaucrats seem to be increasingly opposing the President in their official capacity.13 And they are doing so despite strong agency norms to the contrary.14 The relative novelty of these dynamics is difficult, if not impossible, to verify empirically. If correct, however, this development suggests the heightened need to consider its implications in an administrative state premised on hierarchy and political control.15

This article is an initial exploration of the implications of civil servant disobedience, a distinctly overt and communicative form of official protest.16 The aim is not to advocate for disobedience—for the arguments against it are very strong—but rather to examine principles for normatively evaluating the practice. Elucidating them can very well lead one to determine that the phenomenon is rarely, if ever, justified. In that spirit, the conclusions reached here are tentative and likely to be revisited in future work. The hope is to start, not end, more nuanced conversations—to move past simplistic references to the “deep state” or “the resistance” towards a greater appreciation of the complexity of intra-executive branch dynamics.

Civil servant disobedience, as defined here, refers to conscientious and public acts of defiance against political appointees. Just as debates over civil disobedience by private citizens arose in social context—the civil rights movement, Vietnam War-era protests, assertions of religious liberty—so too does the phenomenon of civil servant disobedience under the Trump Administration. Indeed, it is worth briefly reflecting upon why this practice has intensified of late. Civil servants have historically held a strong sense of “role perception,” backed by powerful norms regarding appropriate institutional behavior.17 These norms have included respect for politically appointed superiors and the need to channel dissent through appropriate internal channels. One defining characteristic of the Trump presidency, however, has been its willingness to undermine long-held norms coupled with its open hostility to the civil service.18 Previous Presidents, to be sure, have railed against what they perceived as a bloated federal bureaucracy.19 But the tone and rhetoric of this administration seems unprecedented.20 Civil servant disobedience may be the natural response.

Part I will introduce the concept of civil servant disobedience by reference to the philosophical literature on civil disobedience by private citizens. Civil servant disobedience will be defined as overt, good-faith acts of protest by civil servants acting in their official capacity in violation of executive directives. Part II will then evaluate the practice against various conceptions of administrative democracy. It will introduce the ideal of reciprocal hierarchy, according to which the views of civil servants are duly considered by appointed agency heads. This ideal emphasizes not only top down means of control, but also facilitates bottom-up concerns. When these ideals are violated, normative space for legitimate civil servant disobedience arguably arises. In this sense, the practice is valid when it is administrative-process-perfecting.

In addition, this Part also considers other necessary factors for civil disobedience to be legitimate. They include the extent to which such behavior arises under statutes that can be read to require consultation with expert, career staff. In addition, such activity must also conform to professional norms; be used only as a measure of last resort; and exhibit a willingness to accept the legal consequences. Part III then takes a step back to consider an alternative to civil servant disobedience—resignation—and disobedience’s more dynamic effects. It concludes that the longer run harms to the administrative state, including presidential backlash, must be seriously balanced against the potential democratic benefits.

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708

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