You Report to Me: Accountability for the Failing Administrative State
By David Bernhardt.
Encounter Books, 2023.
Hardcover, 272 pages, $29.99.
Reviewed by Chuck Chalberg.
In recent years the term “administrative state” has become part of our common parlance. The same goes for the general understanding that it is a term of opprobrium. Indeed, with any luck at all, the term will become part of the “swamp.” That is, the swamp that has engulfed our nation’s capital. And it’s all happening not a moment too soon.
Such is the topic of David Bernhardt’s book: You Report to Me: Accountability for the Failing Administrative State. The subtitle of this potentially very important book is perhaps a touch misleading. Mr. Bernhardt’s editors might have considered: “Suggestions for a Pathway to Returning to Constitutional Governance?” That might be more accurate, if less concise.
The title, on the other hand, is very much to the point. The line does not belong to author David Bernhardt, Secretary of the Interior in the second half of the Trump administration. Rather, it belongs to that of his boss: President Donald Trump. But within the swamp itself determining who the actual boss might be in the maze that is the administrative state is not necessarily an easy or an obvious task. That itself, at least in the murkier parts of the swamp, is a problem, perhaps even an intentionally created one.
Secretary Bernhardt did not have any doubts when it came to determining just who his boss was. Nor does Bernhardt have any doubts about who the boss should be when it comes to future presidents and future political appointees. In fact, it seems quite clear that he would prefer to see the number of such appointees vastly increased in future administrations.
President Trump liked to see himself as a twenty-first century Andrew Jackson. Here the parallel makes a good deal of sense: The Andrew Jackson who gave birth to the “spoils system” and Donald Trump, who clearly saw a need to return to at least a limited version of it. As does David Bernhardt.
In fact, Bernhardt offers occasional history lessons throughout the book. One such lesson recalls Jackson’s call for “rotation in office” in the name of eliminating the “corruption, laxity and arrogance that come with long tenure.” Is there any reason to think that such a problem would necessarily be exclusive to the early 1830s?
Of course, a general purge of the federal bureaucracy every four years is an impossibility, but Bernhardt is right to endorse moving the needle in the direction of building more accountability to the incumbent president into what has become the fourth branch of government.
More accountability to Congress is important as well. Here Bernhardt, the historian, takes his story back to the progressives of the early twentieth century. His major target, and properly so, is Woodrow Wilson. Wilson sought to put “increasing power in the hands of ‘experts.’” The “ideal” for Wilson was a “civil service cultured and self-sufficient enough to act with vigor. . .”
While the progressive movement was clearly a bipartisan affair, Bernhardt judges that it was the Wilson administration, together with Congress, “that laid the groundwork for the administrative state and its regulatory apparatus.” And all in the name of the alleged advantages of government by expert.
Such experts may well know a great deal about one thing. But they all too often know next to nothing—and care next to nothing—about the larger picture. In a word, they lack wisdom. In fact, their focus on that one thing may render them even less likely to have any truly worthwhile insight at all.
There is little mention of the leading Republican progressive, Theodore Roosevelt, in these pages, save for a lone reference in the first of a series of appendices. An order to implement President Trump’s call to “enhance conservation stewardship (and) increase outdoor recreation,” the document notes Roosevelt’s love of the outdoors, as well as his contributions to our “uniquely American conservation ethos.”
Bernhardt is otherwise silent when it comes to assessing Roosevelt’s responsibility for the creation of the administrative state. Nor is he interested in speculating about the degree of responsibility to be assigned to the original progressives for the state of the bureaucracy today.
What can be easily detected in these pages is Bernhardt’s skepticism, doubts, and concerns about the role of experts and expertise within the administrative state. Experts and expertise were exactly the commodities that the original progressives were intent on relying upon, despite Wilson’s lip service to the effect that a modern bureaucracy would always be somehow “intimately connected with popular thought by means of elections.”
Such lip service aside, Bernhardt has written this book because he has become convinced that that very connection has not just eroded, but has actually frayed and broken. Can it be restored? For that matter, is some sort of piecemeal reform enough to do the job? Or is more fundamental reform necessary? These are the sixty four dollar questions.
Bernhardt does not call for the latter, but the thrust of his argument, not to mention the conclusions that might be drawn from his serial examples seem to lead one in that direction. There is certainly little doubt in his mind that we have strayed very far from the founding principles of the Constitution.
Given this straying—and fraying—Bernhardt contends that at least one of three things will have to occur in order to restore “governance that reflects the will of the American people”: 1) Congress must craft legislation with greater clarity and take its oversight responsibilities seriously; 2) political leadership must be asserted in executive agencies to prevent staff from acting independently; and 3) the courts must cease to be so deferential to an agency’s assertion of authority in interpreting and/or exceeding congressional intent.
Why only one of the three? Bernhardt does not explain. It seems that some combination of the three will be required, if constitutional government is to be fully and finally restored.
It appears that Bernhardt actually agrees. In an early chapter titled “Unaccountable Bureaucracy,” he details the Washington scene in the days and weeks following the Trump victory in November of 2016. A lawyer with a good deal of experience dealing with issues of the environment, Bernhardt is placed in charge of overseeing the staffing of the Interior Department for the incoming Trump administration.
As a result, he becomes a first hand witness to the (literal) weeping and gnashing of teeth within the belly of the beast that is the a) administrative state; b) swamp; c) bureaucracy; d) civil service (pick your term). The mood of “resistance” in the name of frustrating the will of the American people was very much in the air.
Witness that he has been, Bernhardt offers his final judgment early on: “I don’t believe our form of government can function if a large majority of the civil service view themselves as only obligated to serve the elected leadership of one political party.” To clinch and narrow the point, Bernhardt adds that “intransigent career employees are a significant impediment to a Republican president’s ability to implement the agenda that he (or she) campaigned on.”
Bernhardt’s opening example might be taken as a metaphor for the larger situation that we face as a country. Having himself transitioned to the post of deputy secretary of the interior, Bernhardt details the department’s dealings and debates concerning the fate of the northern spotted owl. Is this creature simply a “threatened species” or is it actually an “endangered species” under the terms of the Endangered Species Act of 1973? What factors can or should be considered in making such a judgment? And who should make that judgment?
Well, similar questions might be asked about the fate of American constitutional government. Is it merely threatened by the actions of what has become the fourth branch of government? Or is it actually endangered by the administrative state?
Bernhardt seems to be of two minds here. His rhetoric and his examples suggest not just endangerment, but something beyond that. But his recommendations hint that we are facing a threat that can be countered and solved by what amounts to patchwork reform. One hopes that he is right—and yet fears that he is wrong.
It also seems to be the case that the book has been written with two audiences in mind: the average citizen and the denizens of the swamp. The latter could include both actual or future political leaders and actual or potential apolitical bureaucrats.
In laying out both problems and solutions Bernhardt has done his best to write plain English. In truth, he’s done a fine job of that. But the subject unfortunately lends itself to getting into the weeds, if not the swamp that lurks nearby.
It must also be conceded that many of his proposals are thoroughly commonsensical. Spreading the Interior Department around the interior of the country makes very good sense. (So would doing the same thing with other departments of government.) Decreasing the ratio between permanent career staff and temporary political appointees should happen. Cheering on the courts to reduce the power of careerists to rewrite laws passed by Congress is also to be encouraged.
Bernhardt, the anti-bureaucrat, is even willing to entertain the idea of adding to the bureaucracy. With tongue firmly, or perhaps only slightly in cheek, he offers to create what he terms the department of SCRUB. That would be a bureau devoted to Searching for and Cutting Regulations that are Unnecessarily Burdensome. Staffed by (you guessed it) experts, SCRUB would come up with a list of regulations to be repealed and then send it to Congress for an up or down vote.
Will any of this accomplish what David Bernhardt hopes to accomplish? One wonders. Near the end of the book he recalls one of the “more disheartening days” of his years in government. While a counselor in the Interior Department during the administration of Bush 43, Bernhardt had a brief exchange with a senator he “greatly admired.” Following a hearing, Senator Daniel Inouye of Hawaii approached Bernhardt to tell him that the issue at hand was simply “too complicated for Congress to deal with.”
Bernhardt responded by telling the senator that Congress was precisely where the founders intended that such issues should be solved. Inouye “patted my arm” before adding that nothing was going to happen until the “political need to act” was more acute. And that is likely to remain the case—at least until the necessary political will is finally summoned or until it’s simply too late to matter.
One is reminded of the warnings of Brooks Adams, grandson of John Quincy Adams and author of a book Theodore Roosevelt both devoured and stewed over. Titled The Law of Civilization and Decay, the tome swept through nearly 2,000 years of history. In it, Adams saw the center of civilization moving ever westward. Why? A civilization would become overly centralized and eventually collapse. Adams feared that such might well happen to the United States, which was then on the verge of replacing England as the dominant world power.
In the end, he predicted that China would someday replace the United States as that power. Will we ultimately be swamped by the swamp? Or will sufficient political will somehow be summoned before it is too late?
John C. “Chuck” Chalberg writes from Bloomington, MN, and for years performed as Theodore Roosevelt.
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