October 3, 2017

Loyalty


Civil service, James Comey, Ryan Zinke, William Yeomans

by William Yeomans, Lecturer in Law, Columbia Law School

*William Yeomans served 24 years in the Civil Rights Division of the Department of Justice. He is currently the Ronald Goldfarb Fellow at the Alliance for Justice and Lecturer in Law at Columbia Law School.

Interior Secretary Ryan Zinke last week stated in a speech to oil industry executives that among Interior Department employees he “got 30 percent of the crew that’s not loyal to the flag.” He elaborated that they were not loyal to President Trump or to him. Zinke’s comments convey an attitude toward government service that is grounded in ignorance of the role of career government servants.

First, Zinke, as did Trump in dealing with former FBI Director James Comey, equated “loyalty” to the president with loyalty to “the flag,” presumably meaning the country. He suggested that patriotism in federal employment requires loyalty to the president. In reality, of course, every federal employee takes an oath to uphold the Constitution and does not swear fealty to the occupant of the Oval Office or his appointees. Federal employees serve their country by defending the Constitution and enforcing duly enacted law.

Zinke’s comment reflects a commonly held misunderstanding of career government service and why it is important in our constitutional scheme. Historically, government service was corrupted by non-meritocratic favoritism and political cronyism in hiring and promotion. Indeed, federal jobs too often were distributed as part of a grand spoils system. Our current civil service structure is an attempt to bolster the integrity and quality of employment decisions by basing them on a structured evaluation of the ability of a candidate to do the job.

Governments have learned repeatedly that creation of a merit-based, non-political bureaucracy is fundamental to building and preserving the legitimacy of government. Government functions best when staffed by a core of permanent and expert professionals. The challenge has long been how to prevent an entrenched bureaucratic class from becoming too powerful and how to ensure democratic responsiveness. The federal government’s response has been the creation of a complex set of relationships between political and career appointees and between the executive and legislative branches of government.

In our system, career government employees are supposed to be hired without inquiry into their political affiliation and they serve through both Democratic and Republican administrations. They contribute 1) substantive expertise based on years of immersion in a subject, 2) experience that can help shape effective policies and save incoming appointees both embarrassment and the need to reinvent the wheel, 3) an understanding of institutional culture and norms that helps political appointees get things done, 4) knowledge of and relationships with relevant players in Congress, NGO’s and others with an interest in the work of the agency, and 5) continuity through transitions in the White House. They owe allegiance to the Constitution and to the missions of their agencies, as defined by Congress and previous executive experience.

The average service of a political appointee is less than two years. They are selected because of a combination of their political connections and ability to do their jobs. Many bring 1) strong resumes, 2) political connections within their agencies and with Congress, 3) fresh perspectives, 4) energy, and 5) a desire to pursue the president’s agenda. They, too, swear to defend the Constitution, but they also understand that their jobs depend on pleasing the president.

Political appointees appropriately have the authority to make final decisions. Those decisions, however, are made best when they follow a process that incorporates the experience and expertise of career employees. As a practical matter, there simply are not enough political employees to handle the duties of government. More importantly, however, good decision-making rests on a foundation of facts, expertise, and experience to which career employees contribute enormously. While political and career employees may disagree, both are served best by an inclusive process that allows for reasoned discussion. 

Too often, political leaders, like Zinke, assume their positions burdened with deep distrust of career employees. They view them as an enemy that must be subdued or circumvented if the president’s agenda is to be served. Rather than engage and attempt to lead through an inclusive process, they shortsightedly seek to rule by fiat. Often they do so in ways that are ill-informed and, as a result, inconsistent with the established mission of the agency and longstanding interpretations of statutes and the Constitution. Principled career employees, who are bound by their oaths to uphold the Constitution, have a duty to push back. Ideally for all, they should have this opportunity before a final decision is made.

Weak political leaders who cannot tolerate disagreement have been tempted to reject merit-based hiring in favor of hiring people who share their political views. Such efforts to politicize the bureaucracy are unlawful and counterproductive, as George W. Bush’s Department of Justice learned. It undermined enforcement of civil rights law by filling the ranks of career attorneys with attorneys chosen for their right-wing politics and punishing successful attorneys perceived as too liberal. Its unlawful conduct destroyed morale within the Civil Rights Division, damaged its credibility with courts and advocates, and inflicted substantial damage on the Department of Justice.

We need a government that acts on the basis of facts, expertise, and experience. Shutting out the career bureaucracy from the process or distorting hiring practices to turn the bureaucracy into a reflection of the prevailing politics of the day will cripple government’s effectiveness. It will also pose a threat to our democratic institutions. A principled, informed bureaucracy that is loyal to the Constitution is an essential safeguard against a lawless president.

Constitutional Interpretation, Executive power