Amid this flurry of Executive Orders, I suspect there are a lot of people who would benefit from a little summary of how government works. I’ll make it as straightforward as I can, but this is government–pedantic comes with the territory.
The three branches are intended to exist in tension with each other to prevent any one of the three taking over, and each of the branches has a distinct role:
Executive Branch – This is the President. In theory, the President represents the will of the majority of Americans as expressed through the vote. The President signs or vetoes laws that come from the legislative branch.
Legislative Branch – Each member of Congress and the Senate is chosen to express the will of the majority of the people in his/her state or district, at least that is what they are supposed to be doing. The Legislative Branch writes and passes laws and controls the budget. For a law to be signed, it has to get enough votes from Congress and the Senate to pass the threshold to be sent to the President. The Government cannot spend money that hasn’t gone through the budget process, so control of the budget is one tool Congress uses to limit the Executive Branch.
Judicial Branch – The Judiciary is represented through a hierarchy of courts that culminate at the Supreme Court. The Judicial Branch reviews the laws and how they are being interpreted to decide whether the law and its interpretation is permitted by the Constitution.
Now let’s go back to the Executive Branch.
All those government workers the tech bros are big mad about? Those are technically Executive Branch employees.
You remember I said that the President leads the government in alignment with campaign promises? Cabinet members are the President’s deputies in moving the Executive Branch bureaucracy in a given direction. Thus, each cabinet member stands at the head of an organization with a specific domain and budget. By putting the President’s picks in charge of each organization (with Congressional approval), the President is able to delegate turning the wheels of bureaucracy in the general direction people voted for when they voted for the President.
A quick detour to define “organization.” For the most part, organizations in the Executive Branch are either departments or agencies. Some of the bigger departments have agencies folded under them, but some agencies are stand-alone organizations. Departments are bigger than agencies, but the baseline is consistent: you only have a department or an agency if you have a law that created the organization. With the exception of a handful of agencies that are funded by fees, like the Patent and Trademark Office, Congress also has to allocate the funds for a department or agency to be a thing.
The Executive Branch, the President, cannot create a department because a new department needs a law to establish its authorities and a budget. A President can propose a new department, but Congress has to come to a majority agreement and give the new department money. For perspective, the last new Department was the Department of Homeland Security.
When Congress writes the laws establishing a department or agency, that law defines the general authorities of what the department can do. If the baseline authority isn’t given to an organization by law, that organization isn’t going to try to exercise that authority. Again, congress defines those authorities, not the President.
The laws that govern federal organizations aren’t usually specific about how the thing is going to go. The law would give the Department of the Treasury the authority to print currency, but would not be specific about what kind of paper the money needed to be printed on. To get to those specifics, the Department of the Treasury (specifically the Bureau of Engraving and Printing) would write regulations about printing money.
This is an entirely made up example, I don’t actually know anything about Treasury regulations. But going with this theoretical Treasury situation, each of the regulations that the Treasury would write about printing money start as a Notice of Proposed Rulemaking, which gets published for public comment on ecfr.gov. Once the public comment period ends, Treasury reviews those comments and makes any adjustments that the professionals and lawyers that work at Treasury agree to. In my experience, these folk take the comments seriously and review and evaluate them in good faith. After the comments are resolved–and all of that information is public–the regulation is published in its final format.
When a regulation is finalized, the federal employees within the organization write the internal policies or the training or the guidance or the standard operating procedures, whatever the documents are that tell employees how to implement the thing.
So how to Executive Orders fit into this?
it seems like the Executive Order can change policy, which is at that lowest level of implementation. An Executive Order might make an agency decide to create a regulation, stop work on a regulation, or withdraw a regulation, but only if any of these choices was consistent with the law. In theory, in a world where institutions and the people in them don’t pre-surrender, the organizations would follow the law before the Executive Order.
Let’s take the Executive Order setting up the dismissal of all federal employees involved in DEI activities. Some agencies created a DEI office as a result of President Biden’s executive order. Some agencies have an office responsible for DEI activities written into the laws that govern them. For example, the Dodd Frank Act applies to the financial regulators. Dodd Frank has a legal requirement that the financial regulators all must have an Office of Minority and Women Inclusion (OMWI). If the financial regulators follow the Executive Order to end all DEI activities by disbanding OMWI and firing all OMWI employees, they are breaking the law.
An organization may choose to prioritize an Executive Order over an actual law, but in doing this, the organization is leaving itself open to lawsuits. Doesn’t do much in the short term for the affected employees, but long term, many of these Executive Orders are unlikely to prove durable.
Lasting changes to the bureaucracy will have to be legislated by Congress. I’m not sure how much you want to bet that Congress will get its poop in a pile in order to legislate change, but I’m maxing out at twenty-five cents.
Bigger picture, what are the implications?
The growing power imbalance, weighed in support of the Executive Branch is kind of the problem. Much ink has been spilled and many hands wrung about the legislative branch abdicating it’s power (and therefore culpability) to the Presidency.
The bureaucracy–the people in the organizations that are non-political, career civil servants–is paralyzed. The military has a long-standing culture that supports refusing to follow an illegal order. There is nothing comparable in the bureaucracy. The bureaucracy has never faced an Executive Order that blatantly contravenes federal law.
Going back to the hierarchy of authority–law, regulation, policy–if that top layer of authority doesn’t exist, the bureaucracy is not going to go off script and make something up. Without a script, without a standard operating procedure, the bureaucracy is paralyzed.
The legislature could fix the problems, but half of the legislature is rooting for the bureaucracy to fail and the other half seems to prefer describing the poop parade to actually cleaning it up. Not a whole lot of hope in that direction.
The judiciary seems to be the only available recourse. American citizens have two opportunities to be heard: at the ballot box and in the court house. Americans who may suffer materially at an action enacted through Executive Order or through one of the individual organizations in the bureaucracy can take the issue to court. I’m not saying this is ideal, litigation is too costly to be a reliable avenue for most Americans to have their say, but it is what we have.
Given our current polarization, it’s tempting to decry the ossified bureaucracy that grinds to a halt in the absence of a legislative framework for action. The current state is not ideal, but having a bureaucracy with the turn radius of a Fiat doesn’t serve the country much better. A bureaucracy that ditches the script in favor of whatever is deemed best by an individual, whether that individual is a middle manager, a subject matter expert, or a political appointee, is an exceedingly dangerous bureaucracy.
The as-is state of the bureaucracy is riddled with vulnerabilities and contradictions. I’m thinking about potential alternative bureaucratic structures, I’m sure I’ll have something to say about it when I believe I have something cohesive and reasonable to propose.
But back to thinking through what to expect from the bureaucracy… for arguments sake, let’s break the bureaucracy into four:
Military – basically everything that falls under the Department of Defense
Domestic – Commerce, Treasury, Interior, Health and Human Services, Social Security, and similar
Law Enforcement – Department of Justice, Department of Homeland Security
Intelligence – All the alphabet soup people, the most famous being the CIA.
Most departments and agencies will fit neatly into one of those categories. Department of State is an oddball in that, if we were being honest, it’s right in the middle of Intelligence and Military. Homeland Security in particular has a crazy quilt of organizations stuffed under one department. It’s mandate is mostly law enforcement, but there is some domestic stuff in there too, like the Federal Emergency Management Agency.
Out of the four, the military is the most likely to evaluate orders and refuse if given an illegal order. The domestic bureaucracies are likely to find themselves in full paralysis. The law enforcement bureaucracies are probably the most comfortable with shenanigans, but still will mostly default to the insistence on an authority to act.
That leaves the intel folks.
The intelligence bureaucracy is nothing like you’ve seen on TV. The CIA has very little in common with the organization that has been accused of playing so fast and loose with the rules that it assassinated a President. If you are looking to the authorities and assuming that the agencies are wedded to the law, the intelligence bureaucracy only has authority to operate internationally. They are prohibited from turning their attention to potential domestic threats. I’ve never worked for the CIA, but my sense is that it is a by-the-book Agency these days.
I’m reaching for a neat bow to wrap this all up with and failing. The bureaucratic portion of the federal government isn’t likely to go off script in the second administration. Bureaucracies are full of individuals and we are in an era of low social trust and cohesion. These bureaucrats are capable of operating cooperatively and for good causes, but they have no experience with doing so out of the bounds of legislative authority. They got through the last administration by holding on to the authorities with fingernails and teeth and following the Hippocratic Oath: first do no harm.
The second term is not looking like the first.
There is no legislative authority that covers this, no standard operating procedures. Having lived in DC from election day to inauguration day, there wasn’t a flurry of conspiring. Mostly it seemed like everyone was looking at each other hoping someone had a plan.
There wasn’t a plan. There probably should have been a plan, but there wasn’t. Isn’t.
With no plan, all you have left is individual bureaucrats pursuing individual incentives.
If there had been a plan, the bureaucrats could have operated collectively, but there is no plan.
So when retirement buy-outs get offered to starve the bureaucracy of its organizational knowledge, individual people looking out for individual incentives are probably going to take those exit ramps. When teleworking employees are forced back into the Office, many will quit, basically self-firing so the administration doesn’t have to do the dirty work.
Individuals pursuing individual incentives will pre-surrender, sign the loyalty pledge, do what is required of them to keep their heads down, their retirement plans intact, their mortgage paid. Those who end up on the chopping block–this week it is the people working on projects like staffing recruiting booths at job fairs in black and brown high schools, or intern programs to introduce underprivileged college students to civil service–will tell their colleagues not to speak up because we see ourselves in each other, we know about daycare and student loans and utility bills.
The bureaucracy is not coming. They aren’t coming to get you and they aren’t coming to save you.
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