//  8/22/17  //  In-Depth Analysis

Take Care is pleased to host a symposium on Congress's Constitutionan important new book by Josh Chafetz. Contributors will assess Congress's role in the separation of powers, with a focus on developments thus far under President Trump. Here is the introductory post by Josh Chafetz.

There is so much to say about Josh Chafetz’s learned, lively, and perfectly timed (yet timeless and no doubt durable) book, Congress’s Constitution.  The writing is punchy, the history is sharp and illuminating, and the normative conclusions are persuasive and generative.

The theme of this Take Care Symposium is to relate Congress’s Constitution to the challenging moment we find ourselves in.  Though thematically centered symposia run the risk of being unduly restrictive, that’s certainly not a worry with Chafetz’s capacious and momentous book: Each chapter reminds us of Congress’s often untapped or incompletely realized legal, political, and cultural authority.  And each chapter reveals refreshingly simple ways for Congress to rediscover and reassert that authority, thereby reestablishing well-functioning systems of separating and checking federal power.

Perhaps the most important and valuable chapter is the one Chafetz devotes to Congress’s personnel power.  This power tends to garner less attention than Congress’s more exciting and constitutionally prominent Speech and Debate privilege; than its dramatic contempt power; and than its heavily discussed power of the purse.  What’s more, even when Congress’s personnel power occupies our attention, our focus is generally limited to just one element of that power: the Senate’s advice and consent authority vis-à-vis high-ranking executive officials and federal judges.

Yet Congress’s personnel power is far broader than what’s envisioned when we zero in on Senate confirmation hearings and votes.  The power, Chafetz reminds us, includes Congress’s authority to specify the employment standards and to regulate the employment conditions for all those career employees who work under the handful of (president-appointed, Senate confirmed) high-ranking executive officials atop our federal administrative agencies.  

It is Congress’s broader, often forgotten, power over the rank-and-file that is so essential in an era such as ours when administrative agencies craft and implement such a large percentage of federal policy.  Indeed, for every speech made from the well of the House, for every hearing held by House and Senate standing committees, and for every new or continuing appropriation secured through the Article I, Section VII process of bicameralism and presentment, hundreds, if not thousands, of administrative decisions big and small are made by the million-plus federal civilian workforce (and a similar number of government contractors) staffing such agencies as the EPA, HHS, and the Department of Defense.

Agencies make rules, issue orders, educate the public (including Congress), deny or grant licenses, benefits, and legal privileges, and make innumerable discretionary investigatory and enforcement decisions of often immense consequence.  By and large, the employees who make these decisions are highly qualified, committed public servants, faithful stewards of their congressionally delegated authority, and unmoved (as required by law) by the politics of the moment.

For decades, these employees have been subject to sharp, often bipartisan, criticism by those inside and outside of government who bemoan bureaucracy, bureaucratic culture (which invariably is equated with some combination of mandarin insularity, aloofness, and torpor), and the longstanding laws and conventions that grant a vast majority of federal employees considerable job security and insulate that large cohort from presidential (or congressional) politics.  Converting words into deeds, these critics have succeeded in marginalizing, demoralizing, politicizing, privatizing, and commercializing the career federal workforce.

Today, of course, those criticisms have reached a fever pitch.  White House officials have promised to “deconstruct the administrative state” and make good on President Trump’s intention to “drain the swamp”—a vague and elusive claim that nevertheless invariably sweeps in federal bureaucrats.  Presidential surrogates similarly stoke fear, anger, and conspiracy theories over what they allege is a “deep state” comprised in large part of subversive, disloyal agency personnel.  Even during the presidential transition, the then-President elect requested the names of Department of Interior personnel specializing in climate change and State Department employees advancing women’s rights, hardly a random workforce audit but instead a clear attempt to intimidate individuals carrying out important—and, to be clear, congressionally mandated and funded—responsibilities. 

It is therefore not surprising that career personnel in the EPA, the Department of the Interior, the State Department, and the Justice Department have been calling it quits, while those who remain must countenance ostensibly (and only ostensibly) non-punitive lateral transfers, unsound White House decisions, and continuing vilification by the Administration and its supporters.

Congress has, or at least ought to have, an abiding interest in a professional, well-respected, apolitical bureaucracy—one that provides regulatory stability over time, demonstrates an unwavering fidelity to congressional delegations, and can stand up to presidential administrations (of any partisan flavor or temperament) in a manner that limits Executive overreach.  Indeed, from Congress’s standpoint, it should be clear that the more a president succeeds in demoralizing, privatizing, and generally undercutting professional, independent bureaucracy—the more he or she is able to consolidate administrative power and wield more unitary (and potentially hyperpartisan or simply arbitrary) control over the vast regulatory expanse.  Any member of the House or Senate interested in preserving her institution’s standing should therefore consult Chapter Four of Congress’s Constitution post haste.

As Chafetz explains, Congress has ample power to bolster civil service protections, reversing years of legal and political erosion and fortifying the permanent, apolitical workforce whose origins date back to 1883 and the landmark Pendleton Act.  Congress can, among other things:

  • Stiffen legal protections to prevent agency leaders from pressuring and punishing civil servants who challenge unduly partisan agency directives;
  • Appropriate the State Department’s celebrated “dissent channel” and install it in every other agency—thereby establishing a clear mechanism for career employees to challenge agency policy and, quite possibly, helping forge a bureaucratic culture where debate and contestation is not only permitted but also expected;
  • Increase the pay and expand the statutory authorities of civil servants in order to better recruit and retain strong professional employees;
  • Decrease the number of so-called Schedule C appointees—politically appointed (and often non-expert) aides to agency heads and deputy heads who add additional layers of political management over the career workforce and who take on responsibilities often better handled by the seasoned experts;
  • Bring a halt to the wholesale outsourcing of civil service jobs—a practice that has failed to realize promised fiscal savings, that has pushed many career employees out the door, and that has further politicized agencies insofar as contractors, unlike civil servants, must remain in the good graces of the presidential appointees atop the agencies; and,
  • Require Senate confirmation of high-ranking White House officials with substantive policy portfolios, such as those colloquially called “czars” who supervise agencies from inside the West Wing.  As Chafetz relates, “Congress is well within its rights to seek responsibility and responsiveness from even, and perhaps especially, the president’s closest advisors—his privy council, if you will.”  These czars further consolidate presidential control over agencies, ensuring among other things that the political appointees within agencies don’t—in the jarring language of the paranoid Nixon White House—“go native” and (gasp!) start seeing things the way the career workforce does.  

These personnel moves promise to pay vast dividends to Congress.  Balance in the administrative arena—that is, between agency heads and career personnel—promotes balance in the constitutional arena between Congress and the President.  As is well known, one of the primary reasons for the creation and more-or-less continual expansion of the modern administrative state has been that Congress couldn’t (and still cannot) keep up with all of the demands placed on the federal government by twentieth (and now twenty-first) century Americans seeking greater public benefits and more extensive labor, consumer, financial, and environmental protections. 

Simply stated, it was and remains beyond the scope of Congress to designate with specificity rosters of endangered and threatened species, set postal rates, establish safe levels of petrochemical toxins, test the safety of cars, trains, and airplanes, and investigate every allegation of workplace discrimination, harassment, or wage theft.  Yet delegating those responsibilities to agencies dominated by the president’s appointees constitutes a vast transfer of power from Congress to, in effect, the President.

Thus these personnel moves to fortify the once-formidable civil service helps ensure some internal administrative balance, as a legislatively strengthened and supported career workforce will have the talent and legal assurances to challenge hyperpartisan or simply capricious presidential administration.  And these moves help promote constitutional balance, as the career personnel can be effective stewards of congressional mandates and be well positioned to pull “fire alarms,” notifying Congress when agency heads threaten to countermand or ignore those mandates.  

As Chafetz reminds us, all-too-frequently Congress fades into the background.  This historical inversion is perplexing and, for some, distressing for all the reasons Congress’s Constitution recounts.  Given the extent of its delegations of vast legislative-like power to the executive agencies, it may well be too late for Congress to reestablish itself as the first branch (the one, incidentally, that as Justice Scalia once stressed, the Framers took great pains to weaken).  But through careful and thoughtful cultivation of the personnel power, Congress can engender a robust administrative separation of powers, ensuring that a forceful bureaucracy (and engaged public at large) can advance congressional priorities and check and balance those of the president—within the vitally important realms of economic regulation, social welfare, and public health and safety.

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

The Federal Judiciary Needs More Former Public Defenders

8/3/20  //  Commentary

By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

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