JOTWELL Features Jennifer Nou's "Bureaucratic Resistance from Below" and "Taming the Shallow State"
Whether the executive bureaucracy, inside and outside of cabinet departments and other agencies, comprises a “fourth branch” of government or not, it clearly has many tools at its disposal to respond to and resist the head of the executive branch within which it sits. Since the election, both before and after the transfer of power itself, we have in fact seen variety of forms of resistance on the part of the civil service. President Truman famously observed of incoming President Eisenhower, “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.” And in a recent piece on the civil service, Professor Daniel Hemel quotes, via Chief Justice Roberts, President Kennedy saying to a constituent, “I agree with you, but I don’t know if the government will.” We are now witnessing that phenomenon on steroids. The executive branch and the substantial civil service attached to it is definitely not The Apprentice. It barely resembles even the standard organizational chart one might remember from a class on separation of powers.
Jennifer Nou, a regulatory expert at the University of Chicago, has been remarking perceptively on this possibility both before and after the inauguration, in a pair (I hope they will become a series) of posts at the blog of the Yale Journal of Regluation. Even before the inauguration, Nou offered “a catalogue of tactics that civil servants have historically used to defy their superiors, both covertly and overtly.” They include slowdowns, using the agency process to build records that “will make it more difficult for the administrator to reverse [a] decision in good-faith,” cooperation with Inspectors General, lawsuits, resignations, and leaks. To this we might add, perhaps as a species of uncivil obedience, former Acting Attorney General Sally Yates’s refusal to enforce the initial administration executive order on travel, on the grounds that the refusal was “informed by my best view of what the law is after consideration of all the facts.” (Given that she served at the pleasure of the president, we might also think of this as a form of implicit noisy withdrawal.) Post-inauguration, Nou argues that the level of bureaucratic resistance to the Trump administration seems “unprecedented” in its “open defiance” of the President. She notes that this defiance invites “the inevitable crackdown from above,” and catalogues some forms the crackdown might take, such as reductions in force, prosecutions of leakers, and simply cutting the bureaucracy out of the consultation and decision-making loop.