Balkinization  

Friday, January 27, 2017

Sir Humphrey Appleby Lives

Gerard N. Magliocca

My favorite television series are "Yes, Minister" and "Yes, Prime Minister," the BBC programs that aired in the 1980s. They primarily depict the relationship between Jim Hacker, a politician, and Sir Humphrey Appleby, the head civil servant who advises Hacker.  In simple terms, some of the plots revolve around Hacker's attempts to get things done over civil service opposition, and some of them are about Appleby's attempts to block ideas that he views as bad policy.  It's very funny (in a British way) and still highly relevant.

One of Hacker's telling comments is that the opposition party in Parliament is the opposition in exile, but the civil service is the opposition in residence. I mention this because that may be an accurate description of the current political situation. The trend in administrative law scholarship, dating back to then-Professor Kagan's article on "Presidential Administration in 2001, emphasizes the degree to which presidents have successfully exerted their authority over the administrative agencies even though they also answer to Congress. Less attention, it seems to me, has been given to how civil servants can frustrate presidential policy if they choose to.

In the first week of the new Administration, I've been struck by the extraordinary number of leaks coming from the various agencies. Perhaps I'm wrong, but I think it's unusual to see draft executive orders leaked to the press, or conversations between the President and the head of the National Park Service that just occurred.  There is also the new phenomenon of agencies using social media to put out messages that are contrary to the Administration's stated goals.

Won't the President's political appointees get this under control once they are in place? Partially, but how much can they do in the face of determined opposition?  You can't just fire civil servants at will, and you can't easily replace the ones with the technical know-how necessary to carry out policy. And (as any devoted watcher of "Yes, Minister" can attest), there are a million complicated strategies that civil servants can use to delay policies if they are so inclined.

This is not to say that the civil service in America is a check-and-balance equivalent to the courts and Congress. But we may find out in the next few years just how much they can do.

Comments:

There was repeatedly references to orders and other things (there are different types of presidential orders, memoranda etc.) that Mr. T. signed without people knowing what was in them. It might be useful for people to have the text readily available.

Anyway, it is normal practice for a lot of stuff to be leaked beforehand to test the waters. It is probable there are more disgruntled people behind the scenes here, more disorder generally, especially early on. But, I think it's a general thing, not something about the "civil service" particularly.

I do think the civil service provides an established continuing community and that is a good thing in various ways the provide stability. This is surely the case when recent political trends is to make it harder to confirm political appointees, who serve only for a relatively short period of time and might (Ben, cough, Carson) not be totally skilled at running the agency and so on. This will provide a natural opposition of sorts to new administrations, especially those who want to change certain things. And, leaks do provide some sunlight.

How much this will be a check and balance remains to be seen, but I wouldn't expect too much there. The people in the White House still retain a significant amount of power. Only so much, as we saw with the Obama Administration (which bothered the left at times), but a significant amount.


 

"You can't just fire civil servants at will"

That's a matter of statutory law. If the civil service decides to openly get in a fight with the President AND both houses of Congress at the same time, that statute might very well get amended.

Oh, and I'd note that the civil service being the opposition in practice isn't that uncommon. For decades, that's been the case whenever a Republican was President. One of the reasons, I guess, that Democrats were so comfortable delegating so much power to the bureaucracy: They expected to rule from it even when they were nominally out of power.

You'll recall that, when Nixon directed the IRS to audit his enemies, he was one audited. Contrast that to the perpetual audits a long list of conservative groups and figures suffered during both the Clinton and Obama eras, and the IRS targeting scandal. The bureaucracy being at war with Trump won't be anything unusual.
 

Brett's:

"You'll recall that, when Nixon directed the IRS to audit his enemies, he was one audited. "

seems to suggest that Nixon was audited by the IRS because he directed the IRS to audit his enemies. Some say that Nixon was his own enemy. But Brett should provide some facts, including dates. Recall that Nixon released his tax returns even though he was being audited.

Trump, America's first self-proclaimed PG* President, has expressed fondness for Tricky Dick. Yet Trump declined to release his tax returns because he was under audit. Perhaps Nixon as a ghost in the Oval Office might advise Trump to come up with his own "Plumbers" to address perceived "Golden" leaks.

* Access Hollywood tapes
 

I'm sure Brett meant to say "The IRS' well-meaning but botched effort to enforce the 1959 Section 501(c)(4) regulations in the face of open defiance by right-leaning organizations."

Or maybe he fell for the con.
 

This comment has been removed by the author.
 

This is not to say that the civil service in America is a check-and-balance equivalent to the courts and Congress.

In practical effect, if not legal authority, the absolute bureaucracy is far more powerful than the Constitution's other branches.

As German sociologist Max Weber repeatedly observed, the bureaucracy is in a superior position to monarchs because the executive of a nation states cannot accomplish anything without the bureaucracy, the bureaucrats possess superior knowledge of the subject matter and the operations of the bureaucracy, and responsibility is dispersed and hard to assign to any individual.

When the president or his political appointees attempt to direct the bureaucracy to enact policies it opposes, the bureaucracy develops a contrary factual record and interpretation of the law in support of its preferred policy, coordinates with an NGO to bring suit in federal court, and then the courts will generally defer to the bureaucracy's factual record and interpretation of the law to order the bureaucracy's favored policy. This is how the bureaucracy and the courts rewrote the Clean Air Act to include GHGs against the desired of the GOP president.

Trump needs Congress to back him up by enacting the pending REINS Act and by enacting legislation to reverse the bureaucracy's regulations.

http://www.hoover.org/research/revolution-administrative-law

http://thehill.com/homenews/house/312730-house-passes-bill-to-overturn-midnight-regulations-en-masse

Some of this can be blocked by filibuster in the Senate, so I do not have great hope the elected branches will prevail over our absolute bureaucracy even though we have nominal one party rule.

 

I really don't know if it was retaliation, Shag, but it certainly demonstrates that the IRS wasn't leaping to do Nixon's bidding. Something that can't be said during Democratic administrations. Which would be worse? If the IRS willingly complied with orders to harass Democratic Presidents' enemies, or if it didn't need such orders? It was one or the other. (Well, I suppose it could be both.)

No, Burnspbesq, I don't think the continual audits of conservative groups during the Clinton administration were well meaning, any more than the targeting during Obama's administration was. They were partisan harassment, enabled by the fact that the bureaucracy is staffed almost exclusively with Democrats.
 

"perpetual audits a long list of conservative groups and figures suffered during both the Clinton and Obama eras, and the IRS targeting scandal."

No one wallows in perpetual victim hood more than movement conservatives these days.
 

It's the principal way they gaslight themselves. You gotta admire the effort involved.
 

"absolute bureaucracy"

Ridiculous, we're currently witnessing the heads of the federal government's agencies being replaced via one of our regular (though admittedly undemocratic) elections.

And one has to love you choosing EPA regulation of GHGs as your example of the absolute bureaucracy when that's currently under an unprecedented stay from SCOTUS. Never change dude.
 

See also Michigan v EPA where the 'absolute bureaucracy' lost.
 

Brett may have the qualifications to build a bridge to nowhere, but he shoots from the lip on his conjectures about the audits of Nixon's tax returns. IRS agents have certain guidelines for purposes of identifying tax returns for audit. Check out this link:

http://www.taxhistory.org/thp/readings.nsf/cf7c9c870b600b9585256df80075b9dd/f8723e3606cd79ec85256ff6006f82c3?OpenDocument

"President Nixon's Troublesome Tax Returns (Copyright, 2005, Tax Analysts)"


 

Mr. W: "absolute bureaucracy" Ridiculous, we're currently witnessing the heads of the federal government's agencies being replaced via one of our regular (though admittedly undemocratic) elections.

I will wager $100 right now none of Trump's political appointees successfully goes through the rule making process to reverse a major regulation. Most political appointees do not have the knowledge to even start the process. If one does, the bureaucracy will simply drag its feet and sabotage the process until the next political appointee or president comes along.

Team Trump only has a realistic opportunity to reverse Obama bureaucratic decrees which did not go through the formal rule making process and which therefore can be reversed by decree without another rule making process.

I have already educated you on, and Professor Vermeule has documented and celebrates in his latest book, the judiciary's nearly complete abnegation of oversight over the absolute bureaucracy.

Once again, Team Trump's only hope is that Congress enacts the REINS legislation partly withdrawing its delegation of legislative power to the bureaucracy and reversing some measure of court deference.


 

SPAM I AM! lectures Mr. W:

"I have already educated you .... "

probably with the qualifications of a Trump U faculty member. SPAM has once again been handed his derriere by Mr. W.
 

Nonresponsive to my points.
 

This link I provided earlier:


http://www.taxhistory.org/thp/readings.nsf/cf7c9c870b600b9585256df80075b9dd/f8723e3606cd79ec85256ff6006f82c3?OpenDocument

"President Nixon's Troublesome Tax Returns (Copyright, 2005, Tax Analysts)"

sets forth reasons for the release by candidates for the presidency, and other elective offices, of their tax returns. A hero of this article is revealed to be George Shultz of the Nixon Administration who directed the IRS NOT to follow through with audits of persons on Nixon's enemies list. Is Trump, America's first self-proclaimed PG* President, Nixon reincarnated?

* Access Hollywood tapes

 

Since time is up there, thanks Shag for linking elsewhere to a post thread from January 2009. I from time to time read over past threads.

https://balkin.blogspot.com/2009/01/why-barack-obama-still-isnt-president.html

The answer today is that there is a two term rule & he was probably ready to go anyways. Eight years of that stuff would be enough for most people.




 

Gerard's BBC favorites brought to mind, royally, the Constitution's Emoluments Clause:

"No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

What if the U.K.'s Queen Elizabeth gave a present or emolument to President Trump )fka the "King of Queens," nka "Colt 45")? Would an originalist, or especially a textualist, take the position that the Emoluments Clause would not apply?
 

Washington apparently received a couple gifts, which seems compelling (along with some other word magic) to somebody. But, think the other side has the better case.

https://juliesilverbrook.com/2017/01/09/does-the-emoluments-clause-apply-to-the-president-of-the-united-states-a-summary-of-two-competing-views/amp/

https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf

Sandy Levinson thought the lawyers' debate was a bit too precious, but the greater issue is quite important. And, anything involving the Constitution will result in lawyers debating with one another. Anyway, perhaps the best thing is to watch Queen Victoria on PBS or Queen Elizabeth on Netflix. Or, in honor of John Hurt passing (since Stephen Colbert has noted he respects Hurt's performance), "A Man for All Seasons." Might be a bit topical.
 


شركة نقل عفش واثاث بالدمام ابيات الشرقيه لخدمات نقل العفش والاثاث بالدمام
شركة نقل عفش بالدمام
نقل عفش بالخبر
شركة نقل اثاث الدمام
نقل عفش الدمام
نقل عفش بالدمام
ان اردت نقل عفش منزلك بالدمام ابيات الشرقية من اهم شركات نقل العفش بالدمام والخبر والجبيل والقطيف والاحساء

 



شركة تنظيف بالطائف شركة الهدي افضل شركة نقل عفش بالطائف كذلك هى افضل شركة رش مبيدات بالطائف
شركه الهدى
شركة رش بالطائف
خدمات الطائف
شركة تنظيف بالطائف
شركة تنظيف فلل بالطائف
نظافه عامه بالطائف
شركة تنظيف منازل بالطائف

 

Shag: Gerard's BBC favorites brought to mind, royally, the Constitution's Emoluments Clause:

"No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

What if the U.K.'s Queen Elizabeth gave a present or emolument to President Trump )fka the "King of Queens," nka "Colt 45")? Would an originalist, or especially a textualist, take the position that the Emoluments Clause would not apply?


The Emoluments Clause most definitely applies to gifts and the hundreds of gifts given to the president each year become property of the government.

The real question concerning the Emoluments Clause is whether normal business transactions (market payment for a good or service) can be considered an emolument within the context of this clause.
 


The Congressional Review Act enables a majority vote of Congress to reverse regulations and nominally prevents the bureaucracy from enacting similar regulations in the future. However, the statute was commonly understood as having a time limit and could only be used against Obama "midnight regulations."

The Wall Street Journal is reporting Todd Gaziano, a counsel for the libertarian Pacific Legal Foundation, briefed the recent GOP strategy meeting:

[T]he CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. The CRA also would allow the GOP to dismantle these regulations quickly, and to ensure those rules can’t come back, even under a future Democratic president. No kidding.

Here’s how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.

“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.” Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.

There’s more. It turns out the CRA has a expansive definition of what counts as a “rule”—and it isn’t limited to those published in the Federal Register. The CRA also applies to “guidance” that agencies issue. Think the Obama administration’s controversial guidance on transgender bathrooms in schools or on Title IX and campus sexual assault. It is highly unlikely agencies submitted reports to lawmakers on these actions.

“If they haven’t reported it to Congress, it can now be challenged,” says Paul Larkin, a senior legal research fellow at the Heritage Foundation. Mr. Larkin, also at Wednesday’s meeting, told me challenges could be leveled against any rule or guidance back to 1996, when the CRA was passed.


http://www.zerohedge.com/news/2017-01-27/cra-regulatory-game-changer-could-wipe-out-8-years-obama-regs-hour

Once again, as Mr. W likes to observe, the Congress has the opportunity to reverse the decrees of the absolute bureaucracy. This GOP Congress campaigned and gained electoral majorities for several election cycles now promising the reversal. But will the GOP party establishment actually exercise the power and the mandate the voters have provided them to roll back the absolute bureaucracy? There will likely never be a better test case for whether Congress even wants to be an effective check on the absolute bureaucracy they created.
 

The spam needs more vetting.
 

SPAM I AM!, a self-proclaimed textualist, apparently skipped over that the Emoluments Clause makes no reference to a "Queen."

By the Bybee (expletives deleted), SPAM I AM! after after having his derriere handed to him by MR. W, comes up with an extensive quotes from the WSJ, as if the size of his comments matter. [I assume that after Mr. W stops laughing, he'll respond to SPAM's pish-poshing. Joe's comment, re-edited, makes the point:

"The SPAM needs more vetting."
 

Back to the article on Nixon's tax returns, its 2005 copyright date might suggest that Trump, America's first self-proclaimed PG* President, may have been aware of issues that might arise if he released his tax returns during the campaign. QUERY: Is there a George Shultz type in the Trump Administration? Any guesses who might be?

* Access Hollywood tape
 

Shag: SPAM I AM!, a self-proclaimed textualist, apparently skipped over that the Emoluments Clause makes no reference to a "Queen."

:::rolls eyes:::

That might be an issue if the Emoluments Clause's was limited to gifts from Kings and Princes.
'
Queen falls under foreign government.

BTW, you and Mr. W know zero about the history and law of the absolute bureaucracy, nor do you obviously care to learn. My post was actually for Gerard.
 

Shag makes one of his references to the use of gender in the Constitution though even less than "he," I gather few textualists would think the clause would not apply to a queen given multiple women monarchs by that time, including Queen Elizabeth I.

It does suggest some care should be taken regarding being somewhat nuanced when applying constitutional terms. An ongoing lesson around here, perhaps more relevant when a new justice is nominated next week to replaced Mr. Textualist himself.
 

SPAM I AM! is now educating Gerard. "Teacher, Teacher" videos sum up SPAM's abilities.
 

Joe, keep in mind that the 1787 Constitution limited roles of President, Congressmen, Justices, etc, to males The fact that Queens existed back at that time does not mean that the Framers intended female counterparts of Kings and Princes. A living constitutionalist might stress the limited current role Queen Elizabeth as being beyond the Emoluments Clause. Yes, certain uses of male pronouns in the Constitution could be readily interpreted to include females, but not always. The Framers did not intend to include females in all male references in the Constitution.

My point was aimed at originalism and textualism and sometimes the folly of their means of interpretations. Once again SPAM I AM! took the bait.
 

Shag:

At their best, blawgs are a place to share knowledge.
 

Shag:

Even if the E Clause was limited to male monarchs, enforcing it in the limited manner in which it was written is better than allowing judges to rewrite it as they please.
 

"know zero about the history and law of the absolute bureaucracy,"

At least we know what basic words mean 😀
 

SPAM I AM! is correct:

"At their best, blawgs are a place to share knowledge."

Alas, SPAM lacks knowledge, offering bile and misinformation. As referenced by neighbors on his small mountaintop in CO, "just another pisshole in the snow."
 

Blogger Bart DePalma said...
Shag:

At their best, blawgs are a place to share knowledge.


Bart, every time you "share knowledge" the world gets a little dumber.
 

The Muslim ban sure seems to be going smoothly. Looking forward to the next "policy" announcement by our racist pile of crap in chief.
 

This comment has been removed by the author.
 

Some of the individual eggs which have to get broken by our cowardly, bigoted, and imo unconstitutional new refugee policy (aka 'The New St Louis Policy') omelet:
http://www.slate.com/blogs/the_slatest/2017/01/28/read_these_stories_about_people_affected_by_trump_s_immigration_order.html
 

NY judge stayed Trump's EO. I assume the 2d Cir will affirm. Then we'll find out who the R Justices really are.

And the R Members of Congress.
 

This is much more than a "TRUMPEST IN A TEAPOT." According to Genesis, God rested on the 7th day. But not Trump, America's first self-proclaimed PG* President.

* Access Hollywood tapes
 

This comment has been removed by the author.
 

And now for some reality...

Trump's order suspends entry of general travelers from a handful of terrorist countries. Contrary to some fakenews stories, legal US residents are not affected and ICE has the authority to grant waivers to others for special circumstances.

In applying the stay, ICE is doing case by case reviews of those who were stopped at US airports. 81 green card holders were admitted, 173 others are under review or have been sent back home. The policy stopped another 173 from flying here.

A couple local district court judges granted short temporary stays for a handful of non-legal residents at two airports until their claims of being endangered by returning home are investigated. None of the judges have stayed the perfectly legal stay.

http://www.al.com/news/birmingham/index.ssf/2017/01/federal_judge_grants_stay_on_t.html
 

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