The Strange Idea That a Cabinet Officer Should Report to the President

A Trump administration agency head’s struggle against bureaucracy illuminates the need to subordinate executive agencies to the president’s will.

David L. Bernhardt, former U.S. secretary of the interior, deputy secretary, solicitor, and an independent agency commissioner, lets us in on an intriguingly strange secret about what insiders like him would recognize was an exceptional command he received from a U.S. president.

In 2018, President Donald Trump called in Deputy Bernhardt and informed him that, “You’re going to be running the ship [at Interior] for a while,” as acting secretary. And the president added, “Do you have any questions?” The savvy Bernhardt only asked one: “Who do I report to?” He tells us that “President Trump looked at me quizzically. ‘You report to me,’ he said.”

Bernhardt had earlier served under President George W. Bush and tells us in his new book, You Report to Me: Accountability for the Failing Administrative State, that even cabinet secretaries normally had to fight through the White House Office bureaucracy to get access to the president himself. To some extent, the same has been true under most modern presidencies.

So, Bernhardt replied to President Trump: “I know that’s what the Constitution says,” choosing his words “carefully,” “but who do I actually report to?’ ‘You report to me,’ he repeated. He could not have been more clear: I reported directly to him and to no one else!” Bernhardt then tested the offer, both as acting and permanent secretary, and it actually worked!

Why is access so important? Bernhardt explains that his direct access to the president

avoided the massive periods of inactivity that plagued much of my prior experience in the Department of the Interior under President George W. Bush. Far more critically, Trump’s expectation that those serving in the executive branch actually report to him reflected a reality about the presidency and his view of it. The Constitution of the United States confers all the executive power on the president.

As I see it, as director of the U.S. Office of Personnel Management under Ronald Reagan during his first term, this critical relationship justifies the seemingly strange book title You Report to Me. Interestingly, William P. Barr, in his book on his experiences as attorney general under presidents George H. W. Bush and Trump, also raises this matter of reporting. It is clear between the lines that he had much more access to Trump than he did to Bush. This is an attribute of the more recent president that has not been widely reported, especially by the mainstream media.

Open cabinet access to the president had been the norm since George Washington, but it violates most modern Washington insiders’ presumed knowledge that the White House Office and the Office of Management and Budget expert staffs should and actually do run the modern presidency. The fundamental administrative fact is that, if the traditional direct presidential relationship fails, it is replaced by irresponsible bureaucracy, both careerist and political.

Bernhardt explains how the government today does not generally work as the Constitution expected. Congress now leaves most of the policy-making to the bureaucracy, the real Article III courts leave legal-policy interpretations mostly to bureaucratic bodies in the executive branch, and the careerist bureaucracy actually performs the major executive functions of the national government — leaving the bureaucracy pretty much unaccountable to anyone.

A big part of the problem with today’s 2 million civil servants (and the generally ignored 20 million contractors) is the enormous growth of government and how that has made managing it so much more difficult over time. Bernhardt says he is generally pleased with the competence of the civil servants he has had contact with but is frustrated with the cumbersome procedures required for the removal of poor performers and the number of ways dysfunctional employees have available to frustrate removal. Only “8 percent of civil service managers with poor-performing employees even attempted to discipline or fire them.”

>As he was assuming his duties as deputy secretary, he was shaken by bureaucrats like the one who told the Washington Post that he would actually work to frustrate the president’s policies. Bernhardt understood that the bureaucracy was dominated by “ideo­logical liberals” whom their “supervisors believe are almost impossible to fire.” But he personally thought “that the vast majority of these liberal civil servants set aside their policy views to serve their country honorably.” Still, “employees with less integrity could and did work to stymie policies.”
Today Bernhardt concludes that:

Having spent a great deal of my career in the executive branch, I am gravely concerned that many people who work there believe that they have little need to comply with the written words of the law or the regulations of their agency, or with the policies of the elected president. The leaders of executive agencies, for their part, too often view themselves as little more than figureheads, allowing their agen­cies to run on autopilot rather than fulfilling their responsibility to supervise employees and hold them accountable to the American people.

Congress so thoroughly delegates laws to the bureaucracy that its careerist regulators become the real legislators, and their regulations the de facto law of the land. By-and-large, unelected bureaucrats have become the major force for making policy in today’s national government. Much of the problem is from top political appointees themselves, who often prefer that any negative feedback goes to someone below them, granting the tough decisions to career officials rather than putting themselves in the line of media and administrative fire.

Not only do the careerists normally dominate the policy-making process, but even policy-enforcement often operates with little direct oversight by political appointees, which allows career staff the latitude to frustrate policies they personally disagree with. Bernhardt’s “greatest con­cern” regarding national-government management is “well-meaning employees who advocate for their own pet cause rather than serving as neutral, technically competent administrators.” He supports reining in unions, holding poor performers responsible, and at-will rather than multiple-appealable for-cause employment, which he says would restore the original vision for merit service.

Enforcement errors and bias are so destructive to good government that Bernhardt supports a system where “every enforcement action against a private party” would require the “express authorization of a principal officer of the United States who was subject to Senate confirmation.”
Even in adjudication, most judgments are not made by Article III courts but are actually heard by executive-branch administrative-law judges or administra­tive judges who are part of executive agencies and thus have a conflict of interest.

He argues that Article III courts generally have held that “only princi­pal officers confirmed by the Senate can issue final decisions that bind the executive branch. Inferior officers must be supervised and directed at some level by a principal officer.” Of course, “a cabinet secretary does not have to review every decision made by an inferior officer but must be able to do so and to overrule decisions.” Political appointees need to know that “they can withdraw delegations” to career executives “and should be prepared to do so when appropriate.”

Bernhardt claims that there is no valid legal or constitutional substitute for a political head appointed by a president elected by the people making the important decisions. He is especially critical of the progressive, career-dominated Office of Management and Budget that claims to act for the president to overrule agency political appointees on budgets and management and to exercise control over the executive-order process. Indeed, OMB’s Office of Information and Regulatory Affairs (OIRA) runs a review process managing all key agency regulations.

He complains that: “During my tenure in the Bush administration, I saw major regulatory priorities of the secretary of the Interior completely tor­pedoed in OIRA’s review process even after it was made clear that they were presidential priorities.” The process worked better under Trump’s first OIRA head, Neomi Rao, but “simply put, the OMB’s longstanding career budget examiners often seemed to have decided that they set policy, rather than the secre­tary, agency officials, or the president.” He notes that executive orders have some legal authority but are not laws. “The president does not actually have to sign an executive order or a presidential memorandum to tell his appointees to do something. He could just pick up the phone and convey his views to them.”

The other side of the coin is that political appointees must accept the responsibility of leadership. As Bernhardt observes:

Just as career employees often don’t grasp the limits of their authority, political appointees don’t always appreciate the magnitude of their own responsibilities. Some arrive at the agency believing that their role is simply to pass whatever is prepared by the career staff on to the next step in the decision process.

From experience, he warns political appointees that they “should not trust anyone else to explain their authority to them until they have read the relevant statute, regulation, or manual themselves.” He warns lower-level political appointees to be sure they have legal authority to take independent action. He gives wise advice for transition teams to follow before the formal transfer of government power, especially when it comes to issues regarding the Federal Register, the Executive Resources Board, litigation, and working with allies in Congress.

He tells political executives they “can expect to get a variety of calls from White House staff requesting action be taken on particular matters.” OMB staffers especially “may set their own priorities independently” of the president. But the agency appointee is the one legally responsible for making the decision and facing the consequences. “Political appointees need to recognize that virtually anything they say or write is likely to be documented and eventu­ally disclosed” and can be used against them. “The best way of protecting themselves and the administration is to become familiar with the rules, seeking counsel when they are unclear, and then adhere to them.”<
Bernhardt presents a balanced view of today’s big-government bureaucracy that is even broadly sympathetic towards careerists — noting that his wife is one — and argues that Senior Executive Service and other career leaders should be protected from arbitrary actions. Yet he is clear that it is the political appointee who is the one targeted by both opponents and media. “The decision to join an administration and work in a federal agency constitutes a leap of faith, especially if you have never done so before. You have no idea what you are in for, and everything can change on a dime. The unexpected can happen any day.”

Bernhardt’s experience is pretty much the same as this reviewer’s, although he is more optimistic about existing competence and possible reform. Bernhardt’s most important contribution is to directly take on the ignored issue of explaining the necessity of political control of the bureaucracy, with top political executives reporting to and representing the beliefs of the elected president, as the Constitution expects and elections decide.