Rachel Bennetts recently argued in “The Danger of Bureaucratic Resistance” that bureaucrats with too much agency directly threaten the sanctity of the American democracy. Through the example Bennetts provides of the 2010-2012 IRS targeting scandal, during which partisan employees of the IRS stalled the tax exemption status applications of conservative groups, she contends that if civil servants cannot comply with existing laws, they should resign.
Though a hyper-partisan bureaucracy is certainly a point of concern, I do not agree that a degree of bureaucratic independence is inherently threatening to American democracy.
Bureaucratic resistance, to a certain extent, is not uncommon. If an opposition movement cannot win over the bureaucracy or raise the costs of resistance significantly, as Maria J. Stephan and Erica Chenoweth write in “Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict”, the bureaucracy will likely serve as an impediment to its agenda. This proclivity to preserve the status quo can prove frustrating to partisans on both sides of the aisle, but in the long term, is essential in preserving democratic norms. Changes made too quickly can disrupt government operations, leaving it more vulnerable for capture to carry out anti-democratic functions.
Supporting this claim, Aziz Huq and Tom Ginsberg note in “How to Lose a Constitutional Democracy” that a bureaucracy insulated from political control at a day-to-day level is key to effective governance. Bureaucratic autonomy, they argue, actually preserves democracy by:
- Implementing a system of rules that prevents the misuse of state power
- Having a bias toward the status quo
- Existing as a meritocracy, rather than as an arm of political patronage
Huq and Ginsberg offer this with an important caveat of such a bureaucracy being meritocratic in nature. When a bureaucracy deviates from this, and resembles a clientelist model, it becomes a threat to democracy, not a force that can be used to protect it.
The bureaucracy exists today largely to carry out executive policy, and is not an elected, deliberative body. That said, bureaucrats have the agency to manipulate the systems in place to protect against perceived threats to the American democracy, including by slowing down program implementation, limiting the discretion of political appointees, manipulating information, leaking information to the press, and seeking judicial recourse. This “dark arts” of civil service is comprised of actions taken by civil service from within the system to prevent the rapid changes to the status quo. Controversial as it is, if done solely to protect against rapid and potentially destabilizing change, and not as part of a coordinated effort to push a specifically partisan agenda, these “dark arts” can be an important check against the misuse of executive power.
Civil servants should not be required to resign if they earnestly believe that the laws the administration is asking them to execute run contrary to the Constitution or would irreparably damage the American democracy. Career civil servants’ experience and institutional knowledge make them invaluable to the departments they serve and to the efficiency of federal programming. There is always turnover when a new administration enters office. But to require civil servants to resign, as Bennetts suggests, even such bureaucrats see ways to prevent perceived threats to the quality of democracy is to all but ensure a dramatic decrease in government performance.
Certainly, there is a level of risk involved with allowing bureaucrats to make such judgment calls on which extra-legal principles are valid or invalid to act upon. What qualifies as a threat to the sanctity of the American democracy likely varies from bureaucrat to bureaucrat – who undeniably have their own partisan beliefs outside the office. Nevertheless, to deny the ability of bureaucrats to make such determinations in extreme circumstances is to leave the executive without an important (albeit not legally formalized) limitation on power.
This is not to say that bureaucrats should do everything in their power to stall the goals of the executive, as that defeats the primary purpose of the bureaucracy itself.
However, resisting the entire Trump agenda is exact organizing principle of the “Rogue” Federal Twitter movement. Shortly after his inauguration in January, dozens of accounts that purport to be run by members of various federal agencies and departments resisting the Trump agenda arrived on Twitter. Though many of these accounts later changed their descriptions to indicate a lack of affiliation with the government, the idea of an “Alt” government or a “Deep State” garnered hundreds of thousands of followers per account. These accounts frequently share information related to progressive causes and topics not discussed by the Trump administration, such as climate change.
While the content these accounts publish is largely not problematic, the rising popularity of a supposedly politicized faction of the bureaucracy is. Those opposing the Trump administration may believe that a team of rogue climate scientists or diplomats acting towards a unified goal of resisting his policies from within is US’s best shot at enduring Trump’s term without existential destruction. Though that may have some merit, publicly advocating for a “rogue,” politicized bureaucracy sets a dangerous precedent. Such a bureaucracy comprised of factionalized, partisan agencies would pit democracy and state quality at odds, devolving the federal government into a condition resembling the “pre corruption” federal government of the nineteenth century as described by Huq and Ginsberg.
We should also be wary of the bureaucracy gaining too much independent political power. Though agencies and cabinet members play an important role in helping set executive policy direction, democratic elections should ultimately continue to serve as a check against the rise of technocracy. The rise of technocracy over time, as Sheri Berman argues in “The Pipe Dream of Undemocratic Liberalism”, can increase support for maverick populists, which itself can lead to democratic backsliding.
The bureaucracy currently serves an important role in preserving democratic standards when threatened by executive policy. Yet, without formalized protections for bureaucratic independence in the Constitution this power is always uncertain and at risk. This should be seen as a much graver concern than acts of resistance within the system itself.