//  9/7/17  //  Quick Reactions

In yet another indication of the troubling times we live in, federal employees feel the need to publicly reaffirm their loyalty, patriotism, and commitment to the Constitution. 

They are doing so in conjunction with the #UpholdTheOath project, which “gives federal employees the opportunity to publicly proclaim [their] love of country and dedication of service” through a public recitation of the oath of office.

I presume I’m not alone in having mixed feelings about this project.  I’m distressed on behalf of the good and great people of the federal bureaucracy, who, it bears underscoring, have been weathering political attacks for years and have continued to serve a country that all too often takes them for granted. 

I’m distressed too that these attacks have escalated precipitously this year.  Past challenges have centered on the need to run government more like a business—and thus critiques of civil servants were generally impersonal and framed in terms of the relative efficiencies of markets compared to bureaucracies.  While those were, I believe, harsh and wrongheaded, they weren’t savage, and they certainly weren’t personal.  Today, of course, plans to “deconstruct the administrative state” are well underway, with Trump administration officials and surrogates portraying government workers as swamp monsters and even going so far as to characterize them as disloyal Deep State putschists

By statute and tradition, civil servants are politically independent and are expected to carry out their congressionally authorized mandates in a professional, apolitical fashion.  They are servants of the State, not presidential stewards.  Their independence may be inconvenient for President Trump, just as it surely was from time to time for President Obama, President Bush, and all those who preceded them.  But bureaucratic independence is a feature, not a bug, in our system of public administration—necessary to ensure that regulatory policy reflects an admixture of politics and expertise

So, on the one hand, I worry whether a project of this sort devalues the actual oath—the one administered by the government upon entrance into the civil service.  I also worry that it lends further credence to the campaigns to demean and delegitimate the federal bureaucracy; and that it invites additional challenges to the integrity of other sets of individuals or institutions. 

On the other hand, I say hell yeah.  There is surely no winning over the most ardently distrustful and truculent.  But there are a lot of folks for whom the disparaging depictions are all they know.  And then there are a lot of folks for whom safeguarding the federal bureaucracy simply hasn’t been a priority.  (And, fair enough, many are still reeling from Charlottesville, DACA, the travel ban, the transgender service ban....)

These are audiences worth reaching, worth reminding, and worth galvanizing.  These are audiences for whom there is great value in putting faces on the supposedly faceless bureaucracy.  And these are audiences who may, slowly but surely, begin to question a whole lot more once they realize that federal bureaucrats are, by and large, regular middle-class Americans who have nothing in common with the elite cabalists who run Egypt or Pakistan’s Deep State

For these reasons, I applaud and endorse the #UpholdtheOath project while lamenting the fact that such a need exists (and wondering why groups like Protect Democracy, rather than the U.S. Congress or the heads of federal agencies, have to carry the laboring oar).


The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

How To Decide A Very Close Election For Presidential Electors: Part 3

10/28/20  //  In-Depth Analysis

We conclude our examination of close presidential elections by taking a deep dive into Florida in 2000. Was the December 12, 2000 deadline really as firm as it seemed to the courts and some of the parties, or could the count have proceeded?