Many people who wouldn’t ordinarily petition the government are petitioning the Trump Administration and Congress these days. They include my wife and me who have petitioned, assembled and protested many times since Trump’s inauguration.
Perhaps the most effective of these were members of the disability rights community that visited House and Senate office buildings recently for sit-in protests. The images of Capitol Police removing these protesters by force fighting for their Medicaid benefits, some in wheelchairs and with oxygen masks, was devastatingly effective. It likely contributed to the defeat of the so-called health care reform bill the Senate rejected last week. Mainly though protesters make a mark through persistence and by showing up. In some ways the reactions due to these protests are more telling than the protests themselves. Republican legislators by in large are canceling town halls, not meeting with their constituents and when they meet only meet carefully screen partisans of a similar bent.
Some ways of protesting are more opaque. I am speaking of our federal civil service, comprised of approximately 2.8 million people. Until three years ago, I too was in the civil service. And I remember the civil service oath to which I swore allegiance:
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
Notice that the oath requires civil servants to support and defend the U.S. Constitution. It does not require civil servants to follow blindly order by the president or their chain of command. By inference civil servants must uphold laws both just and unjust, even if they personally object to the laws. (An obvious example was Kim Davis, the Kentucky county clerk jailed for her refusal to issue same sex marriage licenses.)
Since most civil servants are in the executive branch, the President is their ultimate boss. The President’s job is to also uphold the constitution and its derived laws. It’s abundantly clear to civil servants that Trump is not being faithful to his oath. This leaves civil servants between a rock and a hard place. When their directed duties conflict with their oath to administer the law as written, what should they do?
Some are resigning and being noisy about it, including the U.S. government’s chief ethics officer. Those resigning though are but a tiny portion of the total civil service. Few civil servants have the option to resign and find another comparable job elsewhere. Others are opting for retirement rather than violate their oath. Some unknown numbers realize that Trump has crossed a line and are fighting for the Constitution where they can. They are resisting in ways that they feel are appropriate by slowing down the gears of government in what looks like passive aggressive if not unlawful behavior.
In my 32 years in the civil service I served six presidents, from Carter (briefly) through Obama. The two most disturbing presidents I served under were Ronald Reagan and George W. Bush. I was deeply disturbed by Bush, but one area where I worried Bush’s actions might be in conflict with my duty to the constitution was when he created offices of faith-based initiative in all departments. These offices amounted to special gateways within federal departments for religious communities to get federal money. At the time I worked at the Humphrey Building on the Mall, headquarters for the Department of Health and Human Services. The faith-based initiative office was right there in the lobby on the first floor. I felt the conflict every day when I walked into my building. I was fortunate that I did not have to support the office with my I.T. skills. I’m not sure what I would have done if I had been required to do so. It’s quite possible I too would have resigned because the office was in my mind a very clear violation of the constitution, which requires separation of state from church.
As bad a president as Bush was, Trump is magnitudes worse. Virtually every department is affected by changes he is trying to bring, and many of these changes introduce serious ethical conflicts. The EPA is being directed by Scott Pruitt not to enforce laws that it is required to enforce and is being forced to remove climate change data from its website even though it is part of its mission, the information was collected with taxpayer dollars and is by law available to anyone. The FDA is being asked to speed up the approval of drugs at the potential cost of safety. The State Department is being hollowed out. Our new Secretary of the Interior is trying to reduce the size of national monuments already approved, like the Bears Ears monument in Utah. He is also trying to open up other monuments and parks to commercial use, such as mineral extraction and drilling violating both the spirit and likely the law itself. Most recently, our Attorney General Jeff Sessions is directing his department to engage in blatantly discriminatory work. What should an ethical civil servant do?
32 years in the civil service taught me that presidents come and go, but laws are relatively static. Laws have staying power, so directives by the administration to abborgate or ignore certain laws tend to be short lived. The Trump era will pass, and likely long before his term ends. Civil servants though have a duty first to the constitution. Moreover they, not their bosses, are the ultimate enforcers of the law. So civil servants can (and are doing plenty) to slow down and obfuscate directives that change the intent of Congress or violate the spirit of the constitution. Mostly these are career middle managers. Obviously there is controversy when they take these actions, most of which are hard to see.
Are their actions lawful? Ultimately it becomes a matter of individual judgment and conscience, although if a criminal case is made of their behavior a judge might get to weigh in. Some are not happy that civil servants have any higher duty. One bill by Rep. Todd Rokita (R-IN) would allow a civil servant to be fired for any reason or even no reason. The civil service was formed in the 19th century specifically to prevent cronyism and help ensure that civil servants can faithfully enforce the rule of law. Right now civil servants have an independent grievance process (ultimately overseen by the U.S. Merit System Protection Board) for adverse actions.
Secretaries and agency heads also swear to uphold the constitution and the law. The president can fire most of these who don’t do so. But what if the president does not believe in his own oath to uphold the constitution and our laws? That is Trump’s obvious problem. The remedy is impeachment and removal from office, although Trump may qualify for removal via the 25th amendment.
Meanwhile, those civil servants who choose to stay and work to enforce existing law (and they are usually in the best position to understand what the law is) remain in a sort of Twilight Zone, with no clear guidance and only their conscience as their guide. In spirit though those called to conscience to put the law before their orders are patriotic and faithful to their oath, even if their actions are hard to detect and seem sneaky and covert. As long as they adhere to the intent of the law they enforce (unlike Kim Davis) their actions are patriotic.
True Americans should applaud their courage and their patriotism. I certainly do!