Three Potential Boring Crises That Really Matter
How Trump and the Republicans threaten the "governing" part of government.
(Note: Between summer schedules and the presidential debate, we’re slightly off our normal schedule this week and the next couple of weeks. You’ll still hear from all three of us, just in a slightly different order until we’re back on track.)
How do you sound the alarm at something that no one cares about — that there’s no realistic chance that most people will start caring about? Something extremely important, and yet too…I already said boring up top, but I’m really having a problem beating that word.1
And yet: Each of the three potential crises I’ll preview here is in fact profoundly important. Each could severely detract from the ability of the fedreal government to do all the mundane tasks it does — sending out checks on time, forecasting the weather, running the military, keeping the national parks functioning, and more. It all sounds like tinkering with organizational charts, but the consequences could easily be severe.
Let’s get to it:
Schedule F. When it comes to making boring politics interesting, no one is better than John Oliver, and he did an episode largely about this. Policy scholar Don Moynihan is pretty good at making boring government stuff interesting, too, and he has an excellent item on Schedule F.
The basic idea is fairly straightforward; it’s a scheme by Donald Trump’s allies to convert positions currently held by civil servants to political appointees. But what it’s really about, and Oliver is entirely correct about this, is shifting the constitutional order from one of separated institutions sharing powers under the law to one in which the president and the president’s cronies rule the nation based on their whims. It seems certain that if Trump wins he’ll attempt to implement this one, and he may well be successful. Anyway, Moynihan explains it much better than I would, so go there (and watch Oliver) if you want to really understand it.
Presidential Immunity. It may be a cheat to include this one, because I think it’s possible that most people can pretty easily grasp why this is dangerous.2 The Supreme Court will soon be ruling on Donald Trump’s claim that presidents have absolute immunity from the law.
The immunity claim for presidents is bad enough. But there’s a bureaucracy component to this, too. As we’ve already seen during his presidency, Trump doesn’t hesitate to use the presidential pardon power for crass political purposes. The power itself is practically unlimited, although if misused it can, at least in my view, be legitimate grounds for impeachment and removal. But no one thinks that Republicans in Congress would try to constrain Trump from abusing pardons, and the other potential constraint — public opinion — proved thoroughly useless, in large part because neither the “neutral” media nor even Democratic-aligned media made much of an issue of it.
Getting back to immunity: Normally, the law is a significant constraint over executive branch misbehavior. But once the law no longer applies to presidents, and assuming they’re willing to use pardons aggressively, then the law no longer applies to presidential appointees. In other words, it’s a recipe for tyranny.
Total Nominations Breakdown. Trump, of course, may lose in November. If Joe Biden gets a second term, however, he’s likely face a Republican majority in the Senate. And we saw in Barack Obama’s last two years in office what that means. You probably know that the Republican Senate refused to even consider Obama’s nominee for a Supreme Court seat. What you may not realize is that same thing happened with many other judicial and executive branch nominees.
That was with Mitch McConnell as Majority Leader. It seems very likely that the next Republican leader will be even more of an obstructionist, and even less open to cutting deals, than McConnell has been. It’s quite possible that with only a handful of exceptions, a second-term Biden may be unable to fill any vacancies that occur in the executive branch. The result would be chaos, with acting officials increasingly stretching their legal authority to keep the government working.3
So it’s not a perfect fit, but let’s for sake of argument put all three of these in the box of destroying the civil service in favor of more influence for the president.
I’m probably far more sympathetic to political appointees than most political scientists — Colin Henry, for example, says that “replacing civil service with political appointments is the political science equivalent of replacing mechanical refrigeration with giant blocks of ice purchased off the back of a horse.”
I’d argue, instead, that there is no perfect balance in developing and implementing policy between the virtues of politics and the virtues of neutral expertise. Neutral expertise certainly has it’s place. But as easy as it is to say that there’s no liberal or conservative way to fill a pothole (or forecast the weather, or keep a missile ready to launch, or build a bridge), it’s more complicated than that.
For one thing, politicians and political appointees may be better attuned to hear and respond to specific citizen concerns. It’s also sometimes possible — even easy — to cast an argument as one of neutral expertise when in fact what’s really happening is not “neutral” at all. And perhaps the most important point is that if we really believe in collective self-government, then that has to include the ability for the polity to choose mistakes, no matter how clearly the evidence suggests another path.
And yet…the missing context here is that the United States already has an unusually political bureaucracy by world standards, one that elevates politics and reserves a relatively small role for the non-political civil service, overseen by thousands of political appointees. If the Trump folks were merely arguing that some specific positions should be political and not civil service, I wouldn’t rule that out.
But in real life what Trump wants is absolute control of the government, and what conservative activists want is to knock out a bunch of constraints on unilaterally imposing policy regardless of either the law or popular mandate, and in doing so destroying any hint of neutral expertise in the government. That’s totally inconsistent with the actual virtues of political control. And incredibly dangerous.
Perhaps with regard to “boring” I just haven’t watched the Vocational Guidence Counsellor sketch recently enough. Are these actually (potential) crises? Nelson Polsby’s definition of a crisis is when everyone agrees that something must be done about a situation. Perhaps a boring crisis is when experts are running around with their hair on fire but no one else cares?
If you don’t like it, substitute in a different Trump threat: That he’ll cut out the Senate by refusing to nominate people for confirmable executive branch slots and attempt to govern through the use of “acting” officials across the government.
Oddly enough, it’s entirely possible the result could be a Schedule F-like increase in presidential influence, since the Senate has no influence on who fills those “acting” slots. In other words, a Republican Senate could wind up forcing Biden to take the abusive actions that Trump has said he might do deliberately.