Before Scott Pruitt was confirmed as the Environmental Protection Agency’s new administrator, the New York Times reported agency staff fighting against his nomination. This is highly unusual and inappropriate. It shows not only how difficult his new job will be but also how necessary it is that he succeed. And it shows, too, how great a threat rogue bureaucracy can become to constitutional order.
EPA scientists, lawyers and experts participated in an influence campaign aimed at senators, urging them to vote against Pruitt as their new boss. Their union’s leader, John O’Grady, promised a continuous campaign against President Trump’s environmental policies that their tactics would include “reaching out to NGOs and having alliances with them” and “working with P.R. firms.”
It is widely known and understandable that government employees are not Trump’s best constituency. But this sort of activism by federal employees, even outside election season, gets into dangerous territory. It is not necessarily forbidden under the Hatch Act (unless the NGOs have business before the EPA). But if EPA staff call their lawmakers on their own to give them an “EPA perspective,” or if they mount some form of internal resistance to stall the policies of the democratically elected government, they are abusing their power.
The Constitution contains checks on and balances against presidential power, namely, the Congress and the judiciary. The bureaucracy is not one of those checks but is, rather, supposed to be his handmaiden, bound to carry out his orders consistent with the laws as passed by Congress and interpreted by the courts. If the bureaucracy does more than that, it becomes a threat to the republic and to popular self-governance, no matter who is president.
Environmentalists sometimes regard the EPA as one of their political appendages, or a panel of think-tank experts with extraordinary authority based on their knowledge of science. It is hardly surprising that they should do so, because that is how the EPA has acted, at least for the past 8 years. But that is a grossly improper role for it to play, as it would be for any other executive agency. There can be only three branches of government; the EPA bureaucracy is not a fourth.
Each of its employees falls under Article II of the Constitution. They derive all their power from the president, who in turn gets his authority from the Constitution and from the laws that Congress makes. It is flat wrong, and almost certainly deceitful, to assert that there are “EPA interests” separate from those of the president.
As we once noted in a different context, “civil disobedience is properly the tool of the citizenry, not of those entrusted by it to execute the law faithfully.” We also wrote that America “cannot survive every minor public official becoming a law unto himself.” This is just as true of unconstitutional actions by EPA employees as it was for the official about whom we wrote it — Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples even after the Supreme Court’s decision in Obergefell v. Hodges.
Recalcitrant and activist EPA staffers doubtless think themselves more justified than Davis. But they are not. The choice of a government career under civil service protections in a democracy includes an implied, and in some cases written, willingness to work for whoever wins the next election. EPA employees may not want to do that, but if so, they should quit or be fired. If they want to make policy they should leave their desk job and run for Congress.
