Daniel L. Moeller
Iowa College of Law
Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive. This account hails the bureaucracy as the modern incarnation of the separation of powers, an alternative to the traditional checks on the President of the courts and Congress, which are faulted with falling down on the job. These “deep state” and “benevolent constraints” approaches to bureaucratic behavior track debates in the scholarship over the legitimacy of the administrative state more broadly, and are used as rhetorical devices to challenge or defend current allocations of power. These accounts lead, respectively, to fear of or over-reliance on bureaucratic resistance—which I define here broadly as action or inaction within the executive branch that hinders executive movement—as a means of checking Presidential power. Fear of bureaucratic resistance results in an erosion of valuable internal checks on the President. Alternatively, over-reliance on these internal checks may result in complacency, and an abdication of responsibility by the traditional external checks, namely members of Congress and the courts. Both approaches result in an insufficiently constrained President, which should concern most advocates and opponents of the administrative state.
This Article seeks to navigate the tension between these approaches in order to craft a more realistic account of bureaucratic resistance, divorced from substantive views about the policies or President at hand. This account suggests that critics of the bureaucracy underestimate the extent to which bureaucrats wield formal authority well-tethered to politically accountable sources. And both critics and champions of bureaucratic resistance overestimate the extent to which bureaucrats exercise functional power free from practical constraint. Ultimately, the bureaucracy is neither all-powerful nor unaccountable. While it plays an essential—and endangered—role in the modern separation of powers, it is neither the threat that some fear, nor the holistic cure to a President who is.
Bureaucratic Resistance and the National Security State,
Iowa Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/447