Judges have pointed to the opinions of the civil service when striking down White House policies.

Washington is hotly debating whether President Trump’s wall-building falls within the powers that Congress has delegated to him. But the bureaucracy has been eroding the president’s executive power with much less fanfare. Deference to the “experts” in the “non-partisan” civil service has weakened the principle that government officials who are not accountable to the voters require oversight by those who are. Bureaucrats are now thought to deserve their own independent power base, and the president’s rejection of their expertise can be ruled illegal.

President Trump encountered this mindset just days into his administration. On January 30, 2017, Acting Attorney General Sally Yates announced that she would defy the White House and prohibit the Justice Department from defending the president’s “travel ban” in court. Regardless of what one thinks of the travel ban, Yates’s actions should be troubling. When officials cannot in good conscience carry out the president’s policies, the expectation is that they will resign, not stand in open defiance. The person elected to head the executive branch was Donald Trump, not Sally Yates, and in a democracy all decisions must flow from leaders accountable to the people. The president had no choice but to fire her.

Not everyone felt that way. Yates’s insubordination was “a profile in courage,” according to Senator Chuck Schumer. Politico likened her firing to Nixon’s Saturday Night Massacre. The Washington Post ran the headline, “Trump sacking acting A.G. raises new questions about his respect for the rule of law.” To the Post, the rule of law is threatened not by the official who was unwilling to obey a legal order, but by the chief executive who fired her for it.

Like the Post, Yates has an inverted understanding of the rule of law. She penned a New York Times op-ed arguing that the rule of law requires that “no one at the White House should have anything to do with any decisions about whom or what to investigate or prosecute. Period.” Law-enforcement officials operating unchecked by anyone accountable to voters is not what most people think of as the rule of law.

While the White House should obviously not dictate the day-to-day operations at the Justice Department, some level of oversight is necessary. As the machinations of behind-the-scenes figures such as J. Edgar Hoover prove, both elected officials and bureaucrats will be tempted to abuse their authority. The difference is that elected officials must face the voters, while bureaucrats do not. No system is perfect, but at least the voters can “throw the bums out” when power rests with those who must stand for election. To elevate the civil service to a fourth branch of government, independent of elected officials and answerable to no one, is to eliminate democratic accountability.

Civil servants are human beings and have the same biases as anyone else. Expecting them never to indulge in a political agenda is naïve. Consider former FBI director James Comey’s actions from the perspective of President Trump. To Trump, Comey hardly seemed like a disinterested administrator. Comey twice inserted himself into the 2016 campaign. Then, after the election, Comey privately revealed to Trump the FBI’s possession of salacious rumors about the president-elect. Later, Comey dispatched agents to interview Trump’s national-security adviser, resulting in turmoil at the White House and an eventual perjury charge. Finally, Comey demurred when Trump asked him to state publicly what he had already said in private — that the president was not under investigation. “Who is actually in charge here?” Trump must have wondered. The Constitution vests the executive power exclusively in the president, but Trump probably felt that he was sharing power with a bureaucrat no one had elected. To make matters worse, Trump’s opponents claimed that Comey could not be fired, as doing so could be obstruction of justice.

Whether Comey and the FBI acted inappropriately is a matter of debate, but consider the implications of criminalizing the president’s exercise of his executive power. Rogue officials could pursue their own agendas without oversight from the executive. The cost of restraining the president would be to leave the bureaucracy unrestrained.

Despite the political fallout, Trump was able to remove Yates and Comey. In other cases, however, judges have invoked the authority of bureaucrats to overrule the president. Take Trump’s executive order that disqualified some transgender people from military service. In halting the order (later reinstated by the Supreme Court), a federal judge declared that Trump’s justifications were “contradicted by the studies, conclusions and judgment of the military itself.” The judge inferred that Trump must therefore be motivated by illegal “animus” toward transgender people.

Now, perhaps the military’s studies are rigorous and not motivated at all by political correctness. Perhaps Trump’s new policy is indeed unjustifiable. Nevertheless, the danger here is obvious: The military has effectively vetoed an order by the commander-in-chief. If the military brass is owed such deference, it is easy to see how it could head off interference from the civilian leadership simply by producing a study that confirms its own beliefs.

A similar case occurred when Trump’s secretary of commerce, Wilbur Ross, attempted to add a citizenship question to the 2020 Census. As part of a sprawling ruling invalidating the new question, a federal judge cited the concerns of “experts at the Census Bureau” to bolster his conclusion that Ross was “unwilling or unable to rationally consider counterarguments to his plan.” Maybe the Census Bureau is exactly right. Alternatively, critics suspect that the bureau exaggerated the problems with the citizenship question in order to overrule a Trump-administration priority. Certainly the temptation would be there, given the power with which judges have imbued the career officials. That temptation should concern everyone, regardless of how one feels about the policy change in question.

The travel ban was not immune to legal attacks from “experts” either. In their dissent to the Supreme Court’s decision upholding the travel ban, Justices Sotomayor and Ginsburg cited “several former national security officials from both political parties” as evidence that the policy is ineffective, and thus possibly motivated by animus. Who knew that former officials get to veto the policies of current officials?

It is not illegal for the president to exercise poor judgment. Unwise or foolish decisions can be perfectly compatible with the rule of law. What is not compatible with the rule of law is the ability of subordinates to overturn the president’s legal orders by substituting their own preferences for his.

Because judges have given bureaucrats that implicit veto, the administration must spend time battling itself rather than simply executing the laws as the president thinks best. Those battles are difficult for the White House, since the media consider any pushback against the bureaucracy to be inherently suspicious. For example, it was a minor scandal when a Health and Human Services (HHS) report on the fiscal cost of refugees leaked in September of 2017. The president had called for the HHS report as part of his “extreme vetting” policy. Contrary to the White House’s expectations, however, the report concluded that refugees are net fiscal contributors.

HHS may have made an honest effort, but its report had serious methodological problems, and the administration was right to reject it in favor of a better study. No matter. “The Trump administration rejects its own study finding refugees help the economy,” said the headline at Vox. According to the article, this was another example of the administration “ignoring research that contradicts its policy positions.” If refugee limits were challenged in a court case as “arbitrary and capricious,” the administration’s rejection of the refugee study would be Exhibit A offered by the plaintiffs. It would probably matter little that the report was faulty — after all, it was written by non-partisan experts.

The rule-by-experts mindset is encouraged by “the Resistance” against Donald Trump, but it’s also part of a broader movement. When the American Psychological Association declares that “traditional masculinity . . . is, on the whole, harmful,” it is using its scientific authority to bolster a political cause. When Politico concludes in a fact check that illegal immigration is not a crisis, it is dressing up an opinion as a fact. When Twitter bans users for objectionable speech, it is purporting to know which ideas are good for the world and which are bad. All of this behavior reflects a technocratic mindset — if only the non-partisan experts were in charge, then society could function so much better.

Technocrats forget human nature. No one is apolitical, and no one is free from bias. Donning a black robe does not make a person immaculate, nor does hanging a fancy degree on the wall, nor does working at a powerful government agency. Everyone needs oversight. That’s why we elect our leaders.

The Topic