The Bureaucracy as a Restraint of Unilateral Presidential Power

By Luis Bravo
Luis Bravo is a sophomore at the University of Pennsylvania studying Sociology.

Ten days into President Trump’s administration, Acting Attorney General Sally Yates made headlines by refusing to defend Trump’s executive order on travel and immigration which denied entry to people from seven Muslim-majority countries. [1] While progressives praised her willingness to resist orders from the executive, critics from the right claimed this as evidence of an unreigned bureaucracy. [1] Yet, bureaucratic obstruction serves a critical role in American society by serving as a check on the powers of executive. Rather than stripping away protections from the bureaucracy, the United States can best mitigate bureaucratic obstruction by bolstering existing protection programs and implementing a fast-track judicial review system for executive orders.

In the Federalist Papers, James Madison writes that to have a properly functioning government “you must … oblige it to control itself.” [3] This ideology resulted in a system of checks and balances that is embedded in the foundation of the American government. Even though executive orders have been used by all presidents, their purview has expanded in modern times, beginning with Theodore Roosevelt who issued over 1,000. [4] While executive orders are powerful presidential instruments directing agencies with the full force and extent of the law, the constitution does not have any provisions that limit their power. In fact, the term “executive powers” can only be found in Article I, Section 2 of the Constitution, in reference to the President’s responsibility to “take care that the laws be faithfully executed.” [5] While the Supreme Court has constrained executive orders by ruling they are subject to judicial review and must derive from acts of Congress (or the constitution), several Presidents have signed executive orders that bypass the legislative process to enact law. [6]

Though measures exist to overturn or undermine unconstitutional executive orders, they are inefficient and ineffective. The Supreme Court and other federal judiciaries have the ability to overturn presidential directives, but rarely do. Not only is a court case required to initiate the process, but factors such as national importance and judge’s personal interests will influence whether an executive order is reviewed. [7] Congress could also overturn a presidential mandate by approving opposing legislation, but the President could simply veto such bill. After this, executive orders are likely to remain intact because congressional overrides are virtually impossible to approve. [9] Congress’ last resort is to refuse appropriating funds for specific executive orders. While the budget and appropriations committee could allow for such a specific directive for funds, political consideration oftentimes complicates this process.

When the judicial and legislative branches fail to balance the powers of the executive, several aspects of the bureaucracy allow it to serve as an internal check. Primarily, the bureaucracy precludes radical policy changes as it is not a perfectly responsive organism. [9] Internal barriers, necessary procedures, and overburdened workers all slow down the flow of the bureaucracy. Secondly, the bureaucracy is most effective when presidential directives identify a specific agency and present a well-defined directive. [10] This provides Presidents an incentive to clearly outline their intentions while also facilitating judicial scrutiny. However, from time to time, bureaucrats can utilize the same organizational roadblocks to deliberately slow down the implementation of directives they perceive to go against the mission of their agency. [11]

This type of bureaucratic obstruction can be minimized by legitimizing channels of dissent. Bureaucrats across government agencies can currently report misconduct and alleged illegal activity and have their grievances reviewed by the Occupational Safety and Health Administration (OSHA). [12] According to various government reports, however, OSHA’s current investigative procedures are riddled with systemic problems. Poor oversight, ineffective investigations, and incompetent staff produce an almost nonexistent complaint reporting system. The federal government should order an updated evaluation of OSHA and increase the organization’s funding to hire additional qualified staff. Improving existing dissent channels is only the first step, however.

To prevent principal bureaucrats from needlessly delaying the implementation of executive orders due to legal concerns, the United States should consider implementing a system where high ranking bureaucratic officials can submit executive orders to be reviewed by the judicial branch. The purpose of this “fast-track judicial review system,” would be to provide bureaucrats an institutionalized channel to report potentially unconstitutional executive orders and prevent large public standoffs in the process. To prevent misuse, bureaucrats should be granted a narrow window after the passage of an executive order to be able to submit complaints. Similarly, the judiciary should also be asked to present an opinion (even if that opinion is to defer for further review) within a set timeframe. By swiftly reinforcing the legality of executive orders, this system could minimize deliberate delays in the implementation of executive orders by top bureaucrats.

While executive orders can beneficially initiate political action in times of relative inactivity, their increasingly widespread use has not been met by clear provisions. In times when the judiciary and legislative branches fail to overturn otherwise unconstitutional executive orders, the bureaucracy serves as an important check. It can best continue assuming this role by improving internal complaint procedures and implementing a system for expedient judicial review. The bureaucracy is a quintessential part of our government and as such, should be embedded into our constitution’s framework. While Sally Yates was ultimately fired for “betraying” the Justice Department and “refusing to enforce a legal order,” Trump’s travel ban has faced a series of constitutional challenges. Had a process to submit executive orders for expedient judicial review been in place, perhaps Yates could have avoided the highly publicized public standoff and subsequent retaliation.

[1] Mark Berman and Matt Zapotosky, “Acting Attorney General Declares Justice Department Won’t Defend Trump’s Immigration Order,” Washington Post, January 30, 2017, sec. Post Nation, https://www.washingtonpost.com/news/post-nation/wp/2017/01/30/trump-says-all-is-going-well-on-immigration-order-amid-questions-and-confusion/.
[2] Inez Feltscher, “Firing Sally Yates Should Only Begin Trump’s War On Bureaucracy,” The Federalist, February 6, 2017, http://thefederalist.com/2017/02/06/firing-sally-yates-beginning-trumps-war-bureaucracy/.
[3] James Madison, “Federalist No. 51,” The Avalon Project, 1788, http://avalon.law.yale.edu/18th_century/fed51.asp.
[4] Gerhard Peters and John Woolley, “Executive Orders,” The American Presidency Project, October 20, 2017, http://www.presidency.ucsb.edu/data/orders.php.
[5] Richard Newbold, Newbold’s Biometric Dictionary for Military and Industry: 2nd Edition (AuthorHouse, 2008), https://books.google.com/books?id=VxeMGCHXOMQC&pg=PA76#v=onepage&q&f=false.
[6] Steven Ostrow, “Enforcing Executive Orders:  Judicial Review of Agency Action under the Administrative Procedure Act,” George Washington Law Review 55 (1987 1986): 659, http://heinonline.org/HOL/Page?handle=hein.journals/gwlr55&id=665&div=26&collection=journals.
[7] Mac Schneider, “How a Case Gets to the US Supreme Court,” Vox, March 28, 2017, https://www.vox.com/videos/2017/3/28/15089358/supreme-court-case-selection.
[8] Harold Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affair (New Haven: Yale University Press, 1990).
[9] Alexandru V. Roman, “Counterbalancing Perspectives on the Current Administrative Telos of American Bureaucracies,” Administration & Society 46, no. 7 (September 1, 2014): 825–52, https://doi.org/10.1177/0095399714532274.
[10] Joshua B. Kennedy, “‘“Do This! Do That!” and Nothing Will Happen’: Executive Orders and Bureaucratic Responsiveness,” American Politics Research 43, no. 1 (January 2015): 59–82, https://doi.org/10.1177/1532673X14534062.
[11] Rachel Augustine Potter, “Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking,” The Journal of Politics 79, no. 3 (May 5, 2017): 841–55, https://doi.org/10.1086/690614.
[12] Scott D. Gerber, “The Whistleblower Protection Program Is Broken Too,” Huffington Post (blog), June 19, 2014, https://www.huffingtonpost.com/scott-d-gerber/whistleblower-protection_b_5510792.html.
Photo Credit: Wikimedia Commons/
upload.wikimedia.org/wikipedia/commons/8/87/Deputy_Attorney_General_Sally_Yates_addresses_the_Labor_Department.jpg

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