Sorry Folks: Federal Agencies Are Good for Us

Further, a shutdown is not the way to go about achieving smaller government.
by Kim Wehle
January 16, 2019
Featured Image
Air traffic controller Emil Watson uses Data Comm, part of the FAA's Next Generation Air Transportation system in the control tower at Miami International Airport on March 6, 2017 in Miami, Florida. (Photo by Joe Raedle/Getty Images)

As we slog through the fourth week of the longest government shutdown in history, 10 Cabinet-level agencies and dozens of others remain closed, forcing approximately 800,000 federal workers to make ends meet without pay—indefinitely. This number includes 52,000 employees at the U.S. Coast Guard—which in 2018 had a “nearly fivefold increase in the number of migrants” intercepted off the West Coast. It also includes 51,000 TSA officers, a snub that has prompted shuttered checkpoints and longer security lines at U.S. airports.

Translated, while President Trump touts “a growing humanitarian and security crisis” at the southern border from a mostly fictitious influx of drugs and criminals, agencies on the actual front lines of illegal immigration and terrorism are languishing.

To treat federal workers as categorically non-essential—as this shutdown does—is a huge mistake.

It’s hard to seriously debate that Trump’s stunt is irrational, with its estimated $3.6 billion hit to the economy and the unquantifiable suffering on the part of federal employees, federal contractors, and their families.

Yet for some in Congress and on Trump’s staff, it’s all for the greater good—regardless of whether the commander-in-chief gets his specious border wall. Members of the conservative Freedom Caucus—including Reps. Mark Meadows (R-N.C.) and Jim Jordan (R-Ohio)—have reportedly egged on Trump “as a means to an end for something they have long pursued, which is limiting the size and scope and role of government,” according to a former House GOP staffer (now a Democrat).

The age-old argument goes something like this: The federal government is bloated, ineffective, and chock-full of freeloading, overpaid employees—including overzealous regulators who muck up free markets, impinge on individual freedoms, and stagnate the economy. A smaller, leaner federal government is just plain better. If we can’t get one through normal channels (i.e., the legislative process), doing it with a shutdown is better than not doing it at all—even if it means inconveniencing federal workers in the process.

Nancy Gibbs, the top editor at Time magazine until 2017, recently told Frank Bruni of the New York Times that “Trump basically ran on blowing the whole thing up.” She thoughtfully added: “It’s critically important that we find ways to get at what it is people imagine government should be doing and that we really look at what kind of leadership we need.”

For years, I’ve taught a class called Administrative Law to law students, in which I spend nearly the entire semester debunking the myth that federal agencies are uniformly bad.

To be sure, there are valid critiques that the federal bureaucracy suffers from “paralysis by analysis;” that the process of making rules—including regulations—is rigid and inefficient; and that when agencies make rules that have the force of a law (that is, they function like statutes passed by Congress), they are pushing constitutional boundaries (an argument the Supreme Court has largely rejected).

If free market innovation is what people want, it might come as a happy surprise to learn that, according to a 2015 report, employees of private federal contractors outnumber federal employees by more than 2-to-1—or 5.3 million to 2.1 million (excepting the U.S. Postal Service and intelligence agencies, which are self-funding).

Private contractors care about profit margins, not the greater public good. Arguably, this makes them more cutting-edge and effective.

But even if facts and figures bore out that assumption (which is debated by scholars), federal contracting is no panacea. The U.S. Constitution doesn’t bind private contractors. Not only are some privately employed TSA screeners currently being paid despite the shutdown, therefore, but if one goes too far and gropes a passenger, that passenger could not maintain a lawsuit for money damages under the Constitution. Not so if the screener happens to be on the federal payroll; that worker can be sued.  Contractors aren’t bound by many federal statutes that force agencies to follow rules requiring reasoned decision-making and transparency (such as the Freedom of Information Act), either.

When agencies pass regulations, they have to account for the viewpoints of regular citizens who file “comments” on the proposed rules—something that even Congress doesn’t have to do. If the agency ignores certain comments, or if its policy decision is not well-reasoned, a federal judge could make it go back and do it right the second time.

How’s that for the power of the people?

But there’s more. Federal agencies are creatures of Congress. Congress creates them by statute and gives them their respective powers. If an agency take an action that exceeds those powers, a federal judge will strike that down, too. And because agencies are lodged within the executive branch, the president has his own strings to pull in order to keep agencies in line.

On the merits, federal agencies do lots of things that make our lives easier—and better. They regulate air traffic so that planes don’t crash into each other willy-nilly. They inspect our food and make sure the medicine we purchase is safe. They help keep consumers secure from predatory lenders and scam artists.

Agencies manage oft-reviled (but vitally important) “entitlement programs”—including public education, Social Security, Medicare and Medicaid, and food stamps. They also take steps to even out inequalities in bargaining power and to account for what economists call “externalities”—side effects of commercial or industrial activities that wind up harming everyday people but which the markets don’t care much about. Think: pollution.

The sprawling federal administrative bureaucracy was born in the wake of market failures that led to the stock market crash of 1929 and the Great Depression. People were hurting, and the federal government—under the leadership of President Franklin Delano Roosevelt—took on the responsibility of curing matters. Congress created an “alphabet soup” of new agencies, including the Securities and Exchange Commission, the United States Housing Authority, and the National Labor Relations Board. Because Congress doesn’t have the expertise, political appetite, or person-power to do all the regulating that our complex economy requires, agencies are here to stay.

The people working in federal agencies are, by and large, dedicated professionals. Many of them bypassed lucrative careers in the private sector out of a desire to bring their expertise and dedication to fostering the public good. Many take oaths to uphold and defend the laws of the United States—pledges that are not enforceable in court, but are sufficiently meaningful that the Constitution requires them of federal judges and national leaders, including the president himself.

In an age of “fake news” and “deep state” conspiracy theories, the shutdown is the ultimate equalizer because it’s about right versus wrong. The animating cynicism hurts real people doing real jobs—jobs that have positive effects on every single person’s life in America  .

As team Trump throws these folks overboard in a bloody battle of ego and ideology, let’s not forget basic civics: Federal agencies and their employees are not bad. Overall, they’re good for us.

Kim Wehle

Kim Wehle is a contributor to the Bulwark, a professor at the University of Baltimore School of Law, a former assistant U.S. attorney, a former associate independent counsel in the Whitewater investigation, a CBS News legal analyst, and a contributor to the BBC. Her book, How to Read the Constitution and—Why, will be published in June. Follow her on Twitter @kim_wehle.