“A characteristic principle of bureaucracy is that it is an expression of a regularized governance with abstract rules. . . [and] regularized governance springs from a desire for ‘equality before the law,’ and looks at privileges as abominations. . .”
–Max Weber (1)
“The third line of work [for the Trump administration] is deconstruction of the administrative state.”
–Steve Bannon (2)
“The real threat to democracy comes not from an imagined deep state, but from a weak state of hollowed-out institutions and battered and belittled public servants.”
–William J. Burns (3)
Bureaucrats and the Rule of Law
We have a love-hate relationship with bureaucracy and bureaucrats. We understand from reading history and sociology that bureaucracy develops along with government in response to social density and complexity. Bureaucracy is marked by predictability, rationality, expertise, structure, equal treatment, documentation, and record-keeping. As much as we dislike the impersonal and often inflexible nature of bureaucracy, we should keep in mind a particularly important advantage to bureaucracy: it promotes the rule of law. The rule of law refers to the related ideas that no one is above the law, that all of us are equally subject to the laws that we collectively make together, and that decisions are reached by following pre-established procedures. It is a cherished ideal that people around the world have struggled to achieve and one that authoritarian leaders seek to undermine. Bureaucracy insists that we all follow the rules, whether it comes to obtaining a passport or declaring a federal emergency. Bureaucrats don’t do arbitrary and they don’t play favorites—at least, they’re not supposed to treat people unequally. This is a good thing, and we should always be wary of political leaders who disparage the bureaucracy when it upholds the rule of law.
Aside from its insistence on following pre-established procedures, bureaucratic agencies promote the rule of law in two other important ways. Effective bureaucracies develop a merit system, meaning that people are hired and promoted to ever greater responsibilities due to their qualifications and their capabilities. A merit system contrasts with what is known as a spoils system, which is where the winning political party stocks the bureaucracy with their own people. The spoils system used to be commonplace in local, state, and federal bureaucracies. In 1881 President Garfield was assassinated by Charles Guiteau, who didn’t receive an expected federal spoils position after Garfield was elected. This shocking event contributed to adopting the Pendleton Civil Service Act in 1883, which set the federal government on the path to a merit system. The merit system provides protection to federal civil servants from being fired or punished when a presidential administration of one party takes power from an administration of a different party. Federal civil servants can only be fired “for cause,” meaning that they can be fired for not adequately performing their job, but not for extraneous or political reasons. The Pendleton Act also created the United States Civil Service Commission to oversee the merit system. Through a 1978 reorganization passed by Congress, the Commission’s responsibilities were devolved to the Office of Personnel Management, the Merit Systems Protection Board, and the Office of Special Counsel.
The second way that bureaucratic agencies promote the rule of law is to require that federal civil service employees be apolitical in their professional capacities. In 1939, Congress passed “An Act to Prevent Pernicious Political Activities,” otherwise known as the Hatch Act of 1939—so named for Senator Carl Hatch of New Mexico. The Hatch Act has been updated and amended several times over the ensuing decades, but we should be clear about the following two original Hatch Act provisions:
- No person may “intimidate, threaten, or coerce, or to attempt to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, or Member of the Houses of Representatives.”
- Federal employees are forbidden from using their “official authority for the purpose of interfering with or affecting the election or the nomination of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, or Member of the House of Representatives.” (4)
The Hatch Act prohibits coercion in federal elections. That’s a good thing and is an international standard to help determine whether elections have been conducted freely and fairly. The Hatch Act also forbids federal employees from using their “official authority”—which could be anything from one’s title, office funds, or email address—to interfere with or affect a federal election. Due to Hatch Act modifications, federal employees are free in their personal capacity to support political campaigns, but they must resign their federal position if they want to run for federal office. Federal officials run into Hatch Act violations on a fairly steady basis every year, but it doesn’t appear to be a big problem.
Organization of a Federal Cabinet Agency
Government agencies are very complicated, and their organizational structures have evolved over time to serve their unique responsibilities. Therefore, it’s difficult to generalize about them. However, we can make some useful generalizations about how cabinet-level agencies are structured. Cabinet-level agencies are headed by a Secretary—Secretary of Labor, Secretary of State, Secretary of Defense, and so on—who is a political appointee, meaning that they are appointed by the president and confirmed by the Senate and that they are expected to carry out the president’s program with respect to the agency. Similarly, the top layer of the agency’s leadership’s is also composed of political appointees—with titles like Assistant Secretary, Deputy Assistant Secretary, General Counsel, and so forth. The political appointees in a federal agency form a fairly thin layer of political White House control over the agency’s work. They are able to do so subject to the laws and regulations that have already been established with respect to that agency’s work. Thus, they cannot direct civil servants to violate the law or abrogate established regulations without going through formal processes established by law.
Below the political appointees are the millions of civil servants who perform the work of the federal government. We’re referring here to civilians—i.e., not uniform military—who are not appointed by the president to their positions. It’s virtually impossible to give an adequate accounting of the wide range of people who work in the federal civil service, but imagine people such as statisticians, park rangers, geologists, epidemiologists, lawyers, tax accountants, demographers, and lead paint abatement administrators all serving to carry out the American people’s wishes as reflected in congressional legislation and executive branch regulations. Contrary to what many people may think, most federal civilian employees do not work in the Washington D.C. area. In fact, more than 80 percent of them are spread around the country from Tampa to Seattle, from Boston to San Diego, and all sorts of places in between. (5)
Federal agencies also have an Inspector General’s office, the existence of which was established by the Inspector General Act of 1978. The agency’s Inspector General is “an independent, non-partisan organization established within each executive branch agency assigned to audit the agency’s operation in order to discover and investigate cases of misconduct, waste, fraud and other abuse of government procedures occurring within the agency.” (6) For cabinet-level agencies, inspectors general are appointed by the president and approved by the Senate. They can be removed by the president. For other federal entities like Amtrak, the Postal Service, and the Federal Reserve, the agency head appoints the inspector general. Inspectors general are supposed to be independent and able to conduct the internal investigations and audits they see fit. The results of those investigations and audits are given to whomever heads the agency and also to Congress within seven days. While the inspectors general are not congressional employees, the Inspector General Act put them in place “to assist Congress in its oversight role.” (7)
Inspectors general often rely on whistleblowers, who are people who come forward with information about maladministration, corruption, waste, or abuse of office within the agency. The Whistleblower Protection Act of 1989 forbids agency leaders from retaliating against the whistleblower or threatening retaliation. The Intelligence Community Whistleblower Protection Act of 1998 extended similar protections to workers in the intelligence agencies, although these workers are forbidden from taking retaliation cases to court. According to Bradley Moss, an attorney who specializes in whistleblower cases, “The need for whistleblowers to be able to raise their concerns with confidentiality and anonymity is critical.” (8)
What Do Federal Agencies Do?
This is a gross oversimplification, but federal agencies perform two important functions that all citizens should know.
The first important task of federal agencies is rule-making, which refers to creating new regulations and revising existing regulations. The rule-making process is governed by the Administrative Procedure Act, which was originally passed in 1946, but which has been amended since then. Before we talk about the actual process through which regulations are created or amended, we should make clear that executive agencies are not free agents that act on their own initiative. They are creations of Congress, and no executive agency can act unsupported by statutory authority. (9) This means that Congress must first pass a law to create the executive agency and then pass additional laws—called enabling legislation—to give that agency the authority to issue particular kinds of regulations to solve defined problems. Since congressional members are not experts in air pollution or highway engineering or medical-device safety, they write laws in such a way as to allow the relevant agencies to create the specific regulations based on input from experts and the public alike.
Once an agency has been given statutory authority to regulate a given issue, the first step is usually research and data gathering. What is the current state of the problem, whether it be particulate air pollution or rear-end collisions on American highways? In the case of air pollution, what smokestack and tailpipe regulations would result in what levels of reduced pollution? What kind of scrubbers on smokestacks and emissions-control devices on automobiles will produce what levels of particulate reductions? At what cost? This research and data gathering stage of the rule-making process can take years of careful study before a sound regulation can be written.
Once the research and data gathering stage is finished, the Administrative Procedure Act requires that the following steps be taken:
- Publish planning documents. These documents are written and published as a regulatory plan so that the public and other stakeholders are alerted that the agency is writing or rewriting regulations in a particular area.
- Engage stakeholders. The agency gathers feedback regarding the regulatory plan. It does so by posting an Advance Notice of Proposed Rulemaking in the Federal Register, which is a publicly available online and printed source that documents federal government behavior. In the case of air pollution, the agency may contact companies that have factories and refineries, automobile companies, and so forth.
- Write and publish a regulatory proposal. Agency staff put together a regulation and publish in the Federal Register a Notice of Proposed Rulemaking that summarizes the issue and the regulation at hand, sets a date when the public comment period will end, provides a means for public comment, and includes any other relevant information like important data the agency used and the agency’s take on why this rule or regulation will be beneficial.
- Accept public comment. During a comment period that usually lasts thirty or sixty days, anyone is allowed to comment on the proposal. The agency may revise the regulatory proposal after the public comment period. It may also repost a new version for an additional comment period.
- Publish the final rule or regulation. The agency publishes the final rule or regulation in the Federal Register and stipulates a date for when the regulation goes into effect. (10)
The second important task of federal agencies is enforcing congressional statutes as well as their own rules and regulations. It’s difficult to make useful generalizations about how federal agencies go about ensuring that laws and regulations are followed. The first thing that might come into your mind when you think about federal government enforcement is the range of agencies that police the federal criminal code. These range from the Federal Bureau of Investigation to the Coast Guard, from the Drug Enforcement Administration to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Then there are the agencies like Customs and Border Protection as well as Immigration and Customs Enforcement that carry out laws governing who can enter and remain in the United States. But enforcement also covers other agencies like the Environmental Protection Agency that can fine polluters and the Consumer Financial Protection Bureau that can sue financial services companies and use court orders to compensate consumers who have been harmed by fraud or other illegal activities.
When enforcing federal laws and ensuring compliance with federal regulations, agencies have a certain amount of discretion in their work. This means that federal agency leaders can make choices about which violators to pursue, what penalties to seek, and on what areas of their responsibilities they want to concentrate their efforts. Enforcement discretion is often a function of agencies being over-worked, understaffed, and operating with limited resources. Choices have to be made. For example, the early years of the Obama administration were marked by a fairly strong approach to enforcing federal laws against marijuana production, distribution, and possession. Marijuana, after all, was still a Schedule 1 drug under the federal Controlled Substances Act. However, after more and more states began to decriminalize medical and recreational marijuana use, the Obama administration eased off. Similarly, the Trump administration said it could choose to go after companies and individuals who violate federal marijuana laws as they abide by laws in liberal states, but that it chose not to—presumably because such a move would be unpopular. (11)
The really problematic aspect of federal enforcement—the aspect which fits with the attenuated democracy theme of this textbook—is the tendency to prosecute and audit ordinary Americans instead of going after corporate malfeasance and wealthy white-collar criminals. White-collar crime has been defined by the Federal Bureau of Investigation (FBI) this way:
Reportedly coined in 1939, the term white-collar crime is now synonymous with the full range of frauds committed by business and government professionals. These crimes are characterized by deceit, concealment, or violation of trust and are not dependent on the application or threat of physical force or violence. The motivation behind these crimes is financial—to obtain or avoid losing money, property, or services or to secure a personal or business advantage. (12)
In an exposé for the Huffington Post, journalist Michael Hobbes and researcher Matt Giles summarized the lack of enforcement against corporate criminals by saying that we are living in the “golden age” of white-collar crime. “It is,” they wrote, “impossible to look around the country and not get the feeling that elites are slowly looting it. . . the criminal justice system has given up all pretense that the crimes of the wealthy are worth taking seriously.” Further, they argue that “an entrenched, unfettered class of superpredators is wreaking havoc on American society.” (13)
The consequence is that corporations and the wealthy are evading taxes, pushing faulty products on consumers, committing fraud, and getting their unqualified kids into elite universities in record numbers. The problem’s scale is enormous—elite law breakers are so much less likely to be punished than are ordinary Americans. For example, the Internal Revenue Service audits poor recipients of the Earned Income Tax Credit whose average income is around $20,000 per year at twice the rate of taxpayers with income in the $200,000 to $500,000 range. (14) Tax evasion and corporate fraud cost the U.S. economy far more every year than all of the bank robberies and street crime. And yet, the U.S. goes after street crime with a breathtaking zeal compared to how white-collar crime is treated. In 2018, around 19,000 people were sentenced in federal courts for drug crimes, but only thirty-seven people working at big corporations were federally prosecuted for white-collar crime. (15)
There are two main reasons why the federal government falls down on the job when it comes to white-collar crime while heavily enforcing other kinds of criminal activity.
- Resource Imbalance. Federal agencies like the Internal Revenue Service, the Federal Bureau of Investigation, the Security and Exchange Commission, the Consumer Product Safety Commission, the Occupational Safety and Health Administration, and the Environmental Protection Agency are outspent, outlawyered, and unable to go toe-to-toe with corporations and wealthy individuals who tie up enforcement attempts in legal knots. As a report published by the office of Senator Elizabeth Warren (D-MA) pointed out, the resource imbalance often results in the federal government accepting small settlements from corporate criminals in which they don’t even have to admit guilt. (16)
- Higher Bar for White-Collar Criminal Liability. This is one of the worst aspects of America’s criminal justice system, because there is often a different standard of criminal liability for white-collar crimes than there is for other crimes. For instance, in federal drug crimes “prosecutors have to prove that a defendant should have known a crime was taking place,” but in white-collar criminal cases “prosecutors have to prove that the defendants knew their actions were illegal and did them anyway.” (17) Consider the implications of this. If your adult child is caught running an interstate drug ring while living in your basement, you can serve time on federal drug charges and your house can be seized—even if you didn’t know this was happening—because you should have known that criminal activity was taking place. On the other hand, if you defraud investors by collecting fees for pushing an investment that was clearly worthless, you can simply claim that you didn’t know that it was worthless and, certainly, that you had no intention of violating federal securities fraud statutes. Unless the prosecutors find an email written by you to a co-collaborator in which you admit that you knew your actions constituted a crime, you are likely to escape prosecution.
Federal agencies are charged with preventing corporations and the wealthy from cheating American families, killing people with faulty products, committing fraud, and evading taxes. The fact that they are far less likely to fulfill this charge compared with enforcing laws against bank robbery, drug trafficking, and welfare fraud indicates that the U.S. political system serves the interests of the already powerful.
1. Max Weber, Weber’s Rationalism and Modern Society: New Translations on Politics, Bureaucracy, and Social Stratification. Edited and Translated by Tony Waters and Dagmar Waters. Palgrave MacMillan. Page 49. Retrieved online here on February 8, 2020.
2. Quoted in Charlie Spiering, “Steve Bannon Details Trump Agenda: Deconstruction of the Administrative State,” Breitbart. February 23, 2017.
3. William J. Burns, “Trump’s Bureaucratic Arson,” The Atlantic. November 17, 2019.
4. Hatch Act Text. Retrieved on February 8, 2020 from https://employment.laws.com/hatch-act-text
5. Darla Cameron, Dan Keating, and Armand Emamdjomeh, “Where Do Federal Workers Live?” Washington Post. August 30, 2018.
6. Robert Longley, “About the US Inspectors General,” ThoughtCo. August 4, 2019.
7. Audie Cornish, “Former NSA Inspector General Comments on Whistleblower Issue,” All Things Considered on NPR. September 19, 2019.
8. Candice Norwood, “Whistleblower Protection, Explained,” PBS Newshour. October 2, 2019.
9. This basic fact undercuts the unitary executive theory notion that presidents can block all attempts at congressional oversight of executive branch functions.
10. The Federal Register, A Guide to the Rulemaking Process. Retrieved from here on February 8, 2020.
11. Sarah Trumble and Nathan Kasai, “The Past—and Future—of Federal Marijuana Enforcement,” Third Way. May 12, 2017. Tom Angell, “Trump Says He Can Ignore Medical Marijuana Protections Passed by Congress,” Forbes. December 21, 2019.
13. Michael Hobbes and Matt Giles, “The Golden Age of White Collar Crime,” Huffington Post. February 10, 2020.
14. Paul Kiel and Jesse Eisinger, “Who’s More Likely to be Audited: A Person Making $20,000—or $400,000?” Propublica. December 12, 2018.
15. Michael Hobbes and Matt Giles, “The Golden Age of White Collar Crime,” Huffington Post. February 10, 2020.
16. Office of Senator Elizabeth Warren, Rigged Justice: How Weak Enforcement Lets Corporate Offenders Off Easy. 2016.
17. Michael Hobbes and Matt Giles, “The Golden Age of White Collar Crime,” Huffington Post. February 10, 2020.