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Thursday, September 29, 2016

Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?

For various reasons--medical, spiritual, and intellectual--I have not followed the election closely and have increasingly tried to stay away from much election commentary. Having made up my mind long, long ago who I think ought not be president in this election, much of the coverage has been fairly irrelevant to me, and therefore fallen into the unnecessary-tsuris category, or into the category of things one reads not because they constitute a form of civic education or engagement, but as a kind of luxury good or type of entertainment. I worry about that seemingly widespread taste on a normative level--and I have not found the content especially entertaining anyway. The average commentary has not interested or pleased me much for similar reasons, especially social media commentary. Friends elsewhere have suggested to me, somewhat persuasively, that for some, engaging in this commentary can serve some kind of therapeutic or emotional or self-expressive need, although the need for those people to speak has little to do with anyone else's obligation to listen. Some of it, being aimed fairly clearly at people who already hold the same view, can fall under the category of solidaristic expression, which is just something that has never interested me; oddly, although I'm a big supporter of pluralism and of institutions, I'm not much of a joiner.

And a lot of the commentary, perhaps especially on legal blogs (or maybe I just have a biased sample, since I am more likely to read legal blogs than other sources), bothers me because it strikes me as simultaneously being inexpert and attempting to trade on the ostensible authority of the writer. I feel fine about "experts" engaging in speech and action as citizens, and without the use of their "name tag"; I would like to see a lot more of it, in fact. But I'm less comfortable with "experts" who opine publicly on things outside their sphere of expertise, or ostensibly within it but drawing more (or entirely) on their personal civic and political views than on anything having to do with their expertise as such. It's not just that this strikes me as an illegitimate use of one's ostensible authority that has bad long-term consequences for democratic politics. It's that I think it serves as a kind of costless luxury good or form of entertainment for the person doing the opining him- or herself, and thus as a distraction from the kinds of things he or she should or could be doing qua citizen. Your mileage may vary, of course, or you just might not mind getting your entertainment in this particular form.

There is one question I would like to raise, though. I think it would be unfair to say I raise it as an expert. I teach constitutional law and legislation/regulation (although I'm just starting in on the latter subject), but that hardly constitutes expertise across the whole range of questions and sub-topics that this entails. It's more accurate to say I know enough to find the question interesting and to raise it, but would rely on others, hopefully more expert, for interesting answers to the question. The question is, if Donald Trump is elected president, how will the body of government employees I will generally lump as the "civil service" react? Will they faithfully implement the government's policies? Will they resist doing so, but only insofar as those policies violate professional, legal, and/or constitutional norms? Will they resign in larger numbers? Will they engage in somewhat passive resistance or "uncivil obedience," by dragging their feet on implementation in a way they would not do for another administration? Or will they rebel more directly and forcefully--if perhaps not always openly? Administration changes often see a big shift of appointed government officers into regular civil service positions, a practice called "burrowing." If Trump is elected, will this happen on a larger scale than usual, precisely to facilitate this kind of resistance?

I have not seen much on this, although I haven't searched too thoroughly. There are more stories asking what Trump will do to the civil service than asking the reverse question. There is a New York Times piece by Eric Posner--the most interesting, because most dispassionate, legal academic who has written on the election, in my opinion--on "What President Trump Could or Couldn't Do," the last three paragraphs of which address this question. It comes up in this Vox piece (although I should note in all candor, if perhaps in slightly off-topic fashion, that I loathe Vox), which notes early on that "a massive civil service bureaucracy has a will of its own--and the kind of job security that The Apprentice never had to deal with." I would be remiss if I didn't note this Glenn Harlan Reynolds piece, even if I am highly dubious of its bottom line.

If there is more, I haven't seen it, although one assumes there is more out there. In particular, I wonder whether the subject has come up on blogs, listservs, Facebook pages, and other sites for, by, and drawing (likely anonymous) commentary from career civil servants. It strikes me as an interesting and obvious question, and the kind of question for which there are at least a few experts out there who might have something to contribute that actually is expert. It also strikes me as something that has immediate positive aspects, but also obvious potential for serious negative long-term consequences. People who have seen other, useful discussions are welcome to email me with links, of course.                  

[Two updates: A friend points me to this post on Lawfare. And another friend reminds me that another form of resistance would likely be via complaining and/or leaking to Congress and the press.]  

Posted by Paul Horwitz on September 29, 2016 at 11:58 AM in Paul Horwitz | Permalink

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