White House Chronicle

News Analysis With a Sense of Humor

How Not to Manage the Bureaucracy

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The trouble with governing from myth rather than fact is that you break that which isn’t broken and end up with the very opposite of what you set out to achieve.

The personnel decisions of the Trump administration are driven by the myth — repeated throughout the campaign and earlier in conservative circles — that the bureaucracy is an extra branch of government, powerful, left-leaning and determined to impede change.

Presidents, including political opposites Jimmy Carter and Ronald Reagan, have run against Washington, and then grew the government. It is easy to say that the employees of the government are the problem; that fits with the myth.

The government workforce has no lobby, and its unions are limited in their power by law. They are subject to castigation by myth and have to take it in silence.

The myths about the bureaucracy are just that, myths. But they stifle good government. If you are told long enough that you are the problem, you might be tempted to act that out.

The government may well need trimming. It does appear to be overstaffed, but it is something that needs a scalpel, not a saw.

The Trump administration’s invitation to federal employees to accept a buyout or face uncertainty will be counterproductive.

Anyone who is familiar with the idea of reducing the workforce with buyouts knows what happens: The best and ablest leave because they can prosper elsewhere; the dross remains. 

It won’t so much reduce the federal payroll by tens of thousands of workers as it will scour out its talent. Brains out, time servers in.

I am told by people in the government, work has already come to a standstill as demoralized workers debate their options. The government just got less efficient, its productivity went down.

This assault followed another de facto attack on the most productive in government: the one-size-fits-all return-to-office order. By and large, it might be better if more employees worked in their offices, but not all.

Again, there is a talent factor.

Devoted scientists and engineers — and the government employs tens of thousands of them in places like the national laboratories, NASA, NIH, USDA, NSA and throughout the civilian-military.

In the age of computers and artificial intelligence, these knowledge workers are the aristocrats. Many are more productive at home and have built their lives in recent years working there two or more days a week.

The return-to-office order is disruptive and counterproductive. The workplace has changed, and we have changed. We have technologies we didn’t have even five years ago.

The challenge has to be to find new ways of managing remote work, not banishing it.

The trouble with the administration’s return-to-office order is that one size doesn’t fit all. There are seldom simple solutions to complex problems unless a solution is embraced that is more radical than useful. You can cure tooth decay by pulling out all the teeth and fitting false ones, but that is hardly a solution.

Any officer knows that the troops he has are the troops who will save his life or otherwise. They are a general issue, but they are the fighters he or she has at their back. So, too, with the federal workforce.

A Cabinet secretary once told me during an interview that his staff was the “lame, the blind and the halt.” When I got back to the office before writing a line, his office called to implore me not to use the quote.

Criticizing staff is a poor way to get the best out of them: It is leadership in reverse.

Day in and day out, a country is run by its civil service; it is the outfit that delivers or falls down. It isn’t a deep state, a malevolent, secret organization, cherishing power, out to humiliate its political masters. It is also not a monolithic whole, organized and equipped with motives of its own.

It is a large, sometimes efficient — and often less so — organization of individuals: the silent backbone of any country.

Court Ruling Mandates Confusion, Judicial Activism

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Myths are powerful things — so powerful that one has been endorsed by the Supreme Court and now has the federal government by the throat.  Its effects will be far-reaching and, at times, disastrous and dangerous. Although a conservative favorite, it will hurt business, in some cases, severely.

The myth is that the government is dominated by “faceless, unelected bureaucrats” with an agenda. According to myth, these bureaucrats are out to frustrate the will of Congress, avoid the courts and ignore their political masters.

In striking down the Chevron deference on June 28 — the actual case was Loper Bright Enterprises v. Raimondo — the Supreme Court sided with critics of the bureaucracy, ending what has been an operational reality for 40 years.

The Chevron deference is a Reagan-area, bipartisan accommodation that recognized that when Congress makes laws in broad strokes and big declarations of intent, the intent often requires refinement of minute scientific detail, like parts per billion of carcinogens allowed in drinking water.

Under the Chevron deference, when Congress had been sloppy, or too general, in its legislation writing, the agencies were empowered to interpret the law and — with public and stakeholder input in the form of hearings and comment periods — make rules.

It is the crux of the administrative state. If those rules were “reasonable,” they couldn’t be litigated; they got “deference.” Although they could be challenged, the implied immunity of deference was mostly honored.

Clinton Vince, who heads the U.S. energy practice at Dentons, the world’s largest law firm, told me that the Supreme Court has upheld Chevron 70 times and has been cited in cases 18,000 times. He spoke on my PBS television program, “White House Chronicle.”

Many of the agency decisions that affect everything from drugs and medical products’ safety to the protection of human health and the environment, to workplace safety, to aviation safety and to the supply of electricity will be made in myriads of court cases.

Vince said that while reasonable people will disagree on the extent of the national disruption, “I believe that there will be an avalanche of litigation by affected stakeholders of different ideologies and that an entirely different paradigm of agency regulation will occur when the courts, rather than the agencies, will be the dominant decision-makers,” he said.

Under Chevron, the federal agencies would write the fine print (promulgate is the term used) that Congress didn’t or was unqualified to define in its legislation.

This fine print, this rendition of what Congress intended, was implemented and seldom challenged in the courts because the understanding embodied in Chevron was that if the rules were reasonable, the courts would stand back.

Conservative argument postulated that this rule-making in areas like the environment, energy, health and labor favored the liberal biases of the permanent bureaucracy.

Charles Bayless, who has been president of two investor-owned electric utilities, in Arizona and Illinois, and of the West Virginia University Institute of Technology, and who has been a party to the Federal Energy Regulatory Commission rule-makings, told me he fears widespread chaos, jammed courts and extensive “forum shopping.”

“Each side will find very liberal and very conservative circuits and find a plaintiff in that jurisdiction. As the judges cannot understand the science, the outcome is likely preordained,” Bayless said.

“Thus, the appeals courts will be jammed with appeals from jurisdictions with biased judges writing opinions where neither they nor the jury understand the science,” he said.

A judge in, say, Wyoming could be asked in one submission to rule on the safety — yes, the safety — of a malaria treatment and in another on the allowable radioactive releases from a nuclear reactor. This is a recipe for confusion and bad law, which will negatively affect business and the public.

As someone who has covered Washington for 50 years, I must say the bureaucracy gets a bad rap. It isn’t monolithic — as the word implies — and is made up of men and women, some of whom (as in any other large group) may be biased and unfit for what they do.

But it also has a vast number of hardworking, ordinary Americans. This is particularly so in agencies like the Food and Drug Administration and the Federal Energy Regulatory Commission, which administer technologically and scientifically based law. I call them the “hard” agencies because they rely on scientific and engineering expertise in their operation.

It is pure myth that they constitute a swamp or have pre-set agendas. Oh, and they do have faces.