Changing beliefs about the appointment of leadership raises concerns about fairness and accountability.
I have shared with others the hope that the performance plan could bring a serious charge to the government. But sadly, I am no longer confident that reform alone will achieve accountability.
Policies must be followed by senior executives whose goals are often taken for granted. But the requirements for the appointment of these officials are now handled by organizations in ways that can undermine accountability. As a result, reform that focuses on policy issues may not be sufficient to account for judicial decision-making and policy-making.
In a discussion at a similar regulatory conference sponsored earlier this year by the Penn Program on Regulation, Michael Herz made a comment that echoes my concerns. Using voting systems as an example, he thought that there was a time when political opponents would agree that establishing a fair system was their goal, because they thought that all parties would work within it. The same logic, Herz said, applies to regulatory systems: “Those who want less regulation and those who want more regulation can agree process about announcing policies.” While this may be a bit too optimistic today, it is what the Administrative Procedure Act (APA) stood for – both sides “rested” from the administrative procedure.
It is no secret that power over a process can be known as power over an object. The late United States representative John Dingell made a terrible statement, “If I let you write the article and if you let me write the plan, I will always destroy you”—he remembers. But the legal community does not accept the use of strategy as a tool. It admits that “practice wars” were established long ago.
Well, this may not be the case anymore. In the United States, the ideology of progressive power, which has been expressed in the Trump years, has disrupted the selection process for judicial magistrate judges (ALJs) and challenged their judicial powers. Disagreement with institutional policy-making is becoming increasingly difficult, with some questioning the limitations of regulatory oversight and the need for independence.
In several European countries, Hungary in particular, the dismissal of the authorities or the reduction of judges appointed by law raises questions of independence and ensures that they are against the change of policy. Viktor Orban’s authoritarian regime, by weakening checks on central power, has created what Kim Scheppele and others have called a “Frankenstate.”
Judges and administrators who may be removed or reassigned cannot be expected to make fair decisions, let alone with confidence. For those who doubt the importance of Hungarian events in the United States, I recommend watching the discussion of the Committee on January 6. And I can remind them that the Conservative Political Action Conference has gone to Hungary to welcome Orban, whom they see as a good leader. A perfect autocrat of our times.
Consider also that Trump’s allies are preparing to revive his plan that creates a new Schedule F, which allows the firing of government employees without cause. They appear to be building a group of “America First” loyalists to replace dysfunctional officials in the next Trump administration. And even if Trump doesn’t become president in 2024, the playbook will be available to any Republican who might succeed him.
Therefore, we have bigger problems than developing APA methods. Is there a way to escape this obsession with authoritarian behavior? We need to integrate “neutral principles” into the regulatory framework.
When it comes to decision-making, due process requires efficient processes and independent decision-makers. It may be that, for some plaintiffs, ALJs may not meet this standard. But, for all of us, a neutral settlement is important. This means that, if agencies are given the power to appoint ALJs without the restrictions previously established by the Office of Personnel Management’s policy, the agency’s policy must be straightforward and transparent. Judges should be selected on the basis of experience and cultural merit, not politics. In this sense, ALJs can be more “neutral” than Article III judges.
In rulemaking and other areas of agency rulemaking, independence is essential, even if the requirements are different from those placed on ALJs. In these jurisdictions, independence based on the protection of public services and social needs is important, including the protection of whistleblowers.
As the Trump-Ukraine situation has shown us, government officials such as former ambassador Marie Yovanovitch and Colonel Alexander Vindman have spoken truth and power at great risk and put jobs at risk. The Dissent Channel at the US Department of State, which allows diplomats to voice their concerns without fear of retaliation, has not been critical to good policymaking. Arguments to end the protection of civil servants in general, in the hope that the government will be successful, must be rejected. More is at stake than the government’s power, as the cost may be significant. The best people should be appointed to work in government and their expertise and ideals should be encouraged and protected.
With these challenges in mind, what does the future hold for the embattled independent agency? 1935 issue Humphrey’s Executor v. United Stateswhich authorizes Congress to provide independent commissioners with protections such as impeachment, fixed terms, and politically motivated appointments, has long been contested among the executive branch of the agency.
Is independence still important to maintain in this context? To the extent that independent agencies, such as the US Federal Trade Commission (FTC), participate in adjudication, their need for independence may appear to be that of ALJs. And since these agencies also perform legislative and policy-making functions, the same exclusionary protections that apply to the federal government may also be appropriate. The party’s requirements for commissioners — two out of five of the FTC’s commissioners must be from the party that did not govern — are also safeguards against biased policymaking.
In this environment, it can be interesting to support independence in the selection of institutions, even in commissions. But his demands are very difficult. There is already a check on the power of the President through the advisory process and the consent of the Senate. Reducing the excesses of the presidency by eliminating the cause and effective representation of the political system prevents the President and makes it possible It’s Humphrey an unpleasant example. It’s the president’s decisions that matter, not the elite. This all makes sense in time, but it raises a big question.
The state of Wisconsin just showed how unusual these times are. In Wisconsin v. Prehn, the defendant, a member of the independent commission, refused to resign after his term expired, and the Republican state senate could not confirm his successor. Governor Tony Evers sought an announcement that Prehn should resign. But since Prehn had immunity from removal for cause, a 4-3 majority of the state Supreme Court decided he could remain in office. The political game here is amazing. Given the political pressures, Prehn could remain in office for years unless removed for cause. While this may not happen easily at the federal level, where reservations are often limited by law, who knows what will happen if Trump loyalists wait in line. Winning through deception and manipulation, rather than shared political commitment, is not how governance should be done.
Wisconsin was once a progressive state with a proud history in the New Deal era. Today he is a leader among oppressive countries. It’s like Hungary. Because of the unification of the Republican legislature, Democrats win 50 percent of the popular vote but only a handful of seats. This means that a conservative Republican legislature can frustrate a Democratic governor, just as they did by denying him the nomination for governor. Governor Evers won the election. He deserves to be appointed.
But it doesn’t end there. Wisconsin’s former Republican governor succeeded in overturning the state’s long tradition of civil service by passing legislation that established a system for establishing state workers. Wrongly, removing the cause is now up to cabinet officials like Prehn, who shouldn’t be there in the first place. There are now many other states that have gone to “voluntary” work and, recently, a group of conservative lawmakers introduced a bill to that effect in Congress.
Thus, Wisconsin is becoming the leader of a new political movement in the United States. Systematic transfer of power and political justice have become controversial concepts. It used to happen that when one team won, the other would line up and confirm the winner, except in some cases. Now nothing is accepted, so everything is condemned. This is why we all need to be more open-minded about the role of public administration and its impact on the establishment of procedural rights.
Now, I admit that I can overdo it. Maybe I am guilty of “tyrannophobia”. I hope so, since I want to be wrong.