tension or distrust between political appointees and career officials. Due to their years of service for politically diverse leaders, career officials will usually know how to identify the weaknesses of an agency action and reduce the risk of judicial reversal. Internal distrust, however, can lead political appointees working as change agents to shirk the usual forms of sequential vetting by career experts in pursuing legal change.269
News stories and some internal agency investigations
268. See infra Part III.E (exploring why even a broad agency claim of having “no power whatsoever” should still be accompanied by the comparative analysis called for by consistency doctrine).
269. News stories indicate that early Trump-administration deregulatory actions were championed by temporary “beachhead teams” that often were drawn from law firms and industrial associations. See, e.g., Annie Waldman, Former Lobbyist With For-Profit Colleges Quits Education Department, PROPUBLICA (Mar. 21, 2017, 10:44 AM), https://www.propublica.org/ article/former-lobbyist-with-for-profit-colleges-quits-education-department [https://perma.cc/ CFE7-H2QV]. Such actions were reportedly not vetted by career agency professionals (whether civil servant or Senior Executive Service personnel), perhaps explaining some of their overreaching and legal infirmities. See infra note 270 (reviewing such a clash). Similar strategies and resulting flaws plagued the Reagan administration during its deregulatory efforts. See GOLDEN,supra note 241, at 45–47 (describing how major change was “‘sent down’” by political appointees pushing deregulation rather than “percolating up” through the agency, as “was customary for agency policy”). She also found other tensions between political and career officials; although there was a wide array of responses, few career officials sought to sabotage the politically led deregulation. Id. at 44–60. See generally MICHAEL LEWIS,THE FIFTH RISK (2018) (exploring protective roles and innovations prompted by federal agencies, repeatedly recounting Trump-administration “beachhead teams” and inexperienced political appointees arriving at agencies without understanding the agencies’ tasks, divisions, or roles played by knowledgeable
have revealed that agencies in the Trump administration pursued hasty policy changes due to the advocacy of “beachhead teams” drawn from affected industries and lobbying organizations, sometimes without the involvement of career officials.270
News stories also recount similar tensions between political appointees and career employees within the Department of Justice, the litigator for federal agencies.271
Similar interactions were found in a study of Reagan-era deregulatory efforts.272
Relatedly, regulatory incentives will vary for political and career officials, potentially leading to reasoning gaps and other lapses by agencies. Politically accountable agency leadership will unsurprisingly focus upon electoral pressures and presidential preferences, with shorter-term advantages or obedience to the president looming large. Legislators will have an institutional interest in statutes’ ongoing effectiveness, but in reality may be long gone from the political scene
career officials, and resulting risks and mistakes); see also Barbash & Paul, supra note 43 (quoting former EPA regulator and Republican lawyer Jeffrey Holmstead about the lack of Trump leadership “experience” and “the Trump team’s ‘complete distrust of the career staff’ at EPA, . . . a professional corps that ‘always gives you good advice, whether or not they agree’ with the president’s politics”).
270. See, e.g., Office of the Inspector General, Department of Health and Human Services, Review of the Department of Health and Human Services (HHS) Cancellation of Marketplace Enrollment Outreach Efforts (OEI-12-17-00290) (2017) (linked to Press Release, Senator Patty Murray, Government Watch Dog Investigation, Requested by Senator Murray, Confirms Trump Administration Sabotaged Open Enrollment Without Any Analysis of Impacts on Patients & Families (Oct. 25, 2017)) (noting that the “beachhead team” cancelled plans for open enrollment despite career officials’ preparation and monetary commitments for publicity). Similar failures of coordination between career and political officials appear to explain the failure of Department of Homeland Security even to acknowledge a change in policy and a new statutory-abnegation claim regarding the return of émigrés in the United States under TPS. See supra notes 44–48 (discussing these actions). Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1089–98 (N.D. Cal. 2018) (granting injunction, reviewing APA claims, and the policy change and the agency’s failure to disclose and explain it); Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1132 (N.D. Cal. 2018) (denying motions to dismiss and, after tracking policy changes and tensions between career and political appointees’ views, explaining why agency policy shifts without explanation and justification violate APA requirements).
271. See Katie Benner, Justice Dept. Rank-and-File Tell of Discontent Over Session’s Approach, N.Y. TIMES (Oct. 19, 2018), https://www.nytimes.com/2018/10/19/us/politics/jeff- sessions-justice-department.html [https://perma.cc/7GUS-NYGK] (discussing the results of political leaders ignoring dissent and advice of career attorneys).
272. GOLDEN, supra note 241, at 44–60 (discussing tensions between political and career officials and how they contributed to inadequately explained changes in seatbelt and airbag regulation leading to the State Farm case); id. at 109–50 (describing stark differences in career and political leadership’s interactions at the Reagan administration’s EPA, and how periods of tension led to clashes and even “strong resistance, even guerilla warfare,” but also finding tension due to political leaders’ delay, “footdragging,” and avoidance of “checks” created under the APA).
when an agency seeks to shuck off some previously understood authority, settled policy, or task.273
Career agency lawyers and staff, in contrast, will often focus on longstanding agency practices, policy goals, and long-term concerns about agency power and discretion, and they will presumptively act in accordance with legislative, evidentiary, and judicial constraints requiring technocratic and reasoned decisionmaking.274 Career officials (whether civil servants or Senior
Executive Service) may also, due to their career choices and history of work within an agency, feel a stronger dedication to the overall mission of the agency, while political appointees pushing for deregulation may overtly seek to dismantle the agency’s law and regulations.275 Due to
this clash, unreasoned or flawed regulatory changes may emerge.276
One analysis of the Reagan administration’s deregulatory efforts, however, found only rare evidence of career employees intentionally undercutting a new administration’s policy changes.277
273. Judge Wald describes this reality as common. Wald, supra note 249, at 651–52, 655. 274. See GOLDEN, supra note 241, at 151–66 (finding differences in agencies’ cultures and interactions of career and political appointees).
275. Id.; see also infra notes 269–71 and accompanying text (discussing career-political tensions and resulting problems); Benner, supra note 271 (describing such clashes at the Department of Justice).
276. Although not identified in the deregulation literature, a form of “work-to-rule” protest could also explain the legal inadequacies of the wave of deregulatory abnegation actions. If political leaders insist on hastily issuing a policy change, career personnel could capitulate to their hierarchical superiors and let the action become public without fighting for improvement. Cf. Jessica Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 COLUM. L. Rev. 809, 818–19 (2015) (identifying extreme forms of obedience to rules as a means of protest, including “working- to-rule” strategies in labor law). In a possible example of capitulation as protest, the Army Corps of Engineers reversed itself on a permit decision with no explanation other than obedience to the president’s “direction” after a presidential memorandum seeking such action. See Buzbee, The Tethered President, supra note 10, at 1389. A court similarly found federal agencies’ new Keystone Pipeline environmental-impact analysis following a presidential directive to be shoddy and inadequately explained, given the requirements of consistency doctrine. See Indigenous Envtl. Network v. U.S. Dep’t. of State, 347 F. Supp. 3d 561, 582–84 (D. Mont. 2018) (identifying inconsistencies and stating that agencies cannot “ignore inconvenient facts” (citation omitted)). Despite the ruling and subsequent injunction, id. at 591, President Trump later withdrew his earlier memorandum, “revoked” the earlier permit that had been judicially invalidated, and purported to issue a direct “Presidential Permit.” Presidential Permit of March 29, 2019, Authorizing TransCanada Keystone Pipeline, L.P., To Construct, Connect, Operate, and Maintain Pipeline Facilities at the International Boundary Between the United States and Canada, 84 Fed. Reg. 13,101 (Apr. 3, 2019). This further policy change and permit reversal relied only on “the authority vested in” the president, cited no statutory authority, and neither included nor referenced any legal explanation or analysis of effects previously ruled to be required by a federal judge. Id. at 13,101.
277. See GOLDEN, supra note 241, at 109–50 (pulling together insights from agency-specific chapters about reasons for sloppy or unsuccessful policy shifts, and finding only rare examples of career efforts to undercut an administration’s new policy directions); see alsosupra notes 269–71
4. Political Benefits Even if Vulnerable to Judicial Rejection.