Tuesday, November 29, 2016

The Paradox of Bureaucracy as the Savior of Freedom

by Neil H. Buchanan

The new president-elect is acting as if he won a sweeping victory, even though precisely the opposite is true.  The question now is whether anyone can or will stop him from abusing power, given that he has never shown any inclination toward personal restraint.  How far could he go?

In several of my writings over the past year, and in particular in two recent columns (here and here), I have argued that the formal restraints on a president's power might be surprisingly ineffective.  A president can do great damage by adopting a confrontational approach, essentially doing what he wants while shouting, "Who's gonna stop me?!"

I would like to be able to report that those concerns are overstated, but unfortunately I cannot.  We really might be in the very beginning stages of witnessing how little we can do to stop the dictatorial impulses of a president who lacks shame or modesty.

On the other hand, it is also useful to think through the various ways in which a president can be stopped or at least slowed down.  The restraints might be much less effective than we used to believe, but it would take time and effort to neuter them entirely.

A number of years ago, I came across a theory that tried to explain why the U.S. has never had a military coup.  We have an incredibly powerful military-industrial complex, after all, and there are plenty of times in history in which an ambitious would-be tyrant could have pictured himself "saving" the country by deposing the civilian government.  Why have there been no coups?  Have we simply been lucky?

Although there are many factors at play, the one explanation that I found both surprising and convincing was that we have created a culture of distrust and competition among the four military services.  The friendly competition of the annual Army-Navy football game is one small example, but the larger picture is one in which the members of each service genuinely appear to dislike those in the other services.

This distrust is so well-known that it shows up in countless movies, including the classic meme in which a bunch of Navy sailors and Marines end up in a huge bar brawl, simply because they are sailors and Marines.  Similarly, in the film "Dr. Strangelove," there is a scene in which an Army general and an Air Force general argue angrily over whose men could win a battle.

In important and unfortunate ways, this ongoing competition is quite expensive.  We end up paying billions upon billions of dollars when the Navy decides that it needs a fighter jet that is as cool as a new jet that the Air Force is building.  And even though the Marine Corps is actually part of the Department of the Navy, the Marines compete separately for their own preferred military equipment.

That expense, however, has brought with it a standoff that has arguably contributed to the ability of the civilian government to continue to be in charge of the military, and not the other way around.

The question, in the face of the upcoming Trump presidency, is whether there are similar structural and behavioral barriers in other parts of the government and society that would prevent the worst-case scenario of the end of constitutional democracy from becoming reality.

Sadly, there are no guarantees. Still, there are good reasons to think that the federal government could be more resilient than we might think to a Trump-led attempt to erase all barriers to presidential power.

The most useful historical example is, of course, Watergate.  There, it turned out that there were people of integrity who were willing to stand up to Richard Nixon's imperial ambitions, people who were not willing to say that whatever the president does is by definition legal.

The infamous Saturday Night Massacre in 1973, for example, found Nixon trying to fire a special prosecutor, but his attorney general (Elliott Richardson) and deputy attorney general (William Ruckelshaus) both refused to do so.  They resigned, and even though Nixon then found someone (Robert Bork) who was willing to do his dirty work, the principled resistance of Richardson and Ruckelshaus led to sufficient public pressure to stop Nixon from steamrolling the rule of law.

The reason that the Saturday Night Massacre is such a memorable event, however, is that it was so unusual.  There are plenty of ways in which Nixon could have tried to accomplish his goals without creating such a public showdown.

Similarly, my hypothetical example (hopefully a fanciful one) of Trump trying to have congressional leaders arrested would probably find many patriotic members of law enforcement refusing to obey that order.  After all, people who have sworn an oath to uphold the United States Constitution might find it difficult to justify violating it so blatantly.

Of course, there are limits to these limits.  Nixon did, after all, finally find a loyal assistant in Bork, and it is not clear what would have happened if Nixon had not appointed a new special prosecutor.  And even the intra-military competition that I described above could surely be overcome if the circumstances were ripe.

Is there something even more basic that holds back an autocratic wannabe?  In a recent conversation with a friend who served in the military and who has worked for years in various government security-related jobs, I learned about some of the ways in which the rank-and-file federal workforce -- including those in military and law enforcement positions -- are trained and conditioned in ways that (perhaps not by design) prevent the worst from happening.

Among people in the federal workforce, there is apparently what amounts to a prime directive: Stay in your lane.  That means that there are things that each person is supposed to do, and other things that are someone else's responsibility.  There are people who hold grudges literally for years after someone has gotten into their lane, and there are ways for the offended party to exact retribution.

What constitutes a violation of the stay-in-your-lane directive?  Basically, everyone learns the rules of the organizational road, and they know both who is allowed to tell them what to do and what they are (and are not) allowed to do.  When someone gets into someone else's lane, that means not only that the violator is breaking protocol but that his target will be forced to do something unusual, too.

Being outside of the organizational comfort zone is not merely a matter of feeling that something wrong is going on, but it threatens the person's sense of autonomy within the broader scheme of things.  "I am part of an organization with a larger purpose, where my role is to do X, and I do it well.  You can't just show up and tell me to do Y without warning or justification, and without going through the proper channels."

Again, it is not difficult to imagine how such an invisible restraint could be overcome by a sufficiently emboldened politician.  Former Vice President Dick Cheney famously leaned on intelligence officers until they gave him the answers that he wanted to justify the invasion of Iraq, and it is quite understandable that no one told him to stay in his lane.

There are also positive reasons to value the federal bureaucracy, which is tragically underappreciated.  For example, Paul Verkuil recently described the penny-wise-pound-foolish nature of efforts to shrink the federal workforce, showing how we need real expertise to carry out all of the functions of a modern government, especially revenue collection.

While all of that is true, the stay-in-your-lane imperative provides a counter-intuitive reason to appreciate bureaucratic behavior.  A large organization that cannot turn on a dime to do many good things also cannot suddenly do many bad things.

Even a Trump Administration, therefore, is going to go through the paces of having government lawyers write memos about how and when executive orders can be rescinded, the proper procedures for modifying federal regulations, and so on.

Trump will certainly have to deal with legislative defeats if he tries to push through laws that are too extreme for as few as three Republican U.S. Senators.  At least for now, he will not be able to say, "I deem that law to be enacted, so I'm going to ignore the normal rules of legislation."

There are plenty of shocking things that Trump can do when he thinks that he can get away with them.  For example, he has apparently decided that no one is going to stop him from carrying on his private businesses from the White House, even though this creates enormous conflicts of interest that will affect every American.  Trump is anything but subtle.

But there is still a vast bulwark of rule-abiding, loyal Americans who stand in the way of a Trump dictatorship.  These people have good reasons, both professionally and institutionally, to prevent political appointees from cutting corners.

All of these norms and limitations, however, can be eroded over time.  Therefore, the most important thing that believers in the rule of law must do for the foreseeable future is to be vigilant about the many ways that Trump and his people will try to beat down the federal workforce and violate established procedures.

Of course, Trump will borrow from the Republicans' well worn hymnal to denounce "entrenched bureaucrats," "government waste," and the usual litany of complaints about living in a world of laws and not men.  His complaints, however, will merely prove that his power is still limited, which will be a reason to celebrate.  We must tirelessly defend the rule of law.


Joe said...

Bureaucracy, especially if carried out with checks and balances such as due process, is essential for freedom in a nation of any decent size. It is also is a check against tyranny. Again, since consistent non-arbitrary decisions guards against some reckless leader to gain too much power. The power is divided and the individual bureaucrat is conditioned to favor regularity. It has its problems but nothing's perfect.

Shag from Brookline said...

The reaction to Watergate and Nixon was particularly amazing because of Nixon's landslide second term victory, losing only MA. [Aside: A bumper sticker commemorated this as Watergate and Nixon's role in it surfaced: "Don't Blame Me, I'm From Massachusetts." There is currently under way a revival/recycling of this bumper sticker to reflect upon the election of Trump, even though MA was not alone in 2016.] Trump's EC victory is accompanied by a Clinton popular vote that may reach 2.5 million more than Trump got. While Trump had substantially less than a Nixon landslide, factions of his voters present more of a problem if the "stay in your lane" rule interferes with actions Trump might take, especially to keep his campaign promises, than did Nixon voters. In fact, Trump may look to the "precedent" of David Frost's interview of post-resignation Nixon who asserted that if the President does it it's not against the law, as he weaves out of lane.

David Ricardo said...

Mr. Buchanan sets out a pretty scary and unfortunately realistic scenario here, and even worse is a situation where democracy as we know it totally fails in the U. S. Coonsider this as an extension of Mr. Buchanan’s post.

In order for democracy to collapse in a nation with a long and/or strong tradition of self government and individual freedom, a catalyst or major event has to occur. Pearl Harbor resulted in the horrific internment of thousands of law abiding Japanese American citizens. The most recent example of a catalyst is Turkey which until the ascendancy of Erdogan was a nicely functioning multi-cultural democratic country. Erdogan gradually reduced freedom, but democracy was still strong until this past summer when a failed coup gave him the opportunity to essentially eliminate basic freedoms and democratic rights.

Trump will need a similar catalyst to assert dictatorial powers here. The most likely candidate is a set of major terrorist attacks. One can imagine Trump suspending habeas corpus ala Lincoln and jailing tens of thousands of American Muslims (in private for profit prisons of course). If an election is near Trump would simply call it off, citing terrorist attacks as a reason voting cannot take place and cementing in place the Republican majorities at the state and federal levels.

Mr. Trump would get no opposition from Grand Wizard Sessions and his Justice Department, and the Supreme Court would be dismissed or ignored, (The Court has made its decision, now let them enforce it). The government would assume police powers until the War on Terror was won (that is, never) and the opposition would be silenced or jailed in the name of national defense.

Think it cannot happen? Re-read Mr. Buchanan’s post and ask what’s going to stop it?