A Conversation with James Sherk, Director of the Center for American Freedom

James Sherk is the Director of the Center for American Freedom at the America First Policy Institute. Previously, he served as Labor Policy Advisor and Special Assistant to the President for Domestic Policy in the Trump White House. While in office, he was responsible for drafting Schedule F, which would have removed the civil service protections of many career civil servants, making them easier to fire. The following interview is edited for clarity and brevity.

Harvard Undergraduate Law Review (HULR): Your report in February of 2022 outlined a variety of different methods by which bureaucrats resisted the policy initiatives of the President, and some are different than others. For instance, HHS employees crossing out hiring start dates with Sharpies — that seems pretty much outside the regular framework of the rulemaking process. How much of the resistance do you think is within the structure and how much of it is bad faith actors operating outside of it?

James Sherk: First of all, there's no one answer to that. It varies agency by agency. There are good career staff in almost all agencies, and there are some agencies where it's almost entirely good faith actors. You know, when we were preparing the Schedule F executive order, I talked to senior political appointees at a number of agencies about their experiences with career staff. In many cases, we heard horror stories—a number of which we later published in the Tales from the Swamp report. In other cases, like in the Treasury Department, they basically said “no, we don't really have any problems with this resistance. They are very professional, they have been fantastic, especially with their work on the COVID response. They've been here nights and weekends.” So, you have at least some good career staff in most agencies.

There are some exceptions to that rule though. In a few agencies, political appointees reported the career staff are all snakes and you cannot trust any of them. As you might expect, that was more common in the agencies with more ideologically polarizing missions. But that sort of universal policy resistance is the exception, not the rule.  Former Interior Secretary David Bernhardt — he’s the chair of my center here at AFPI— has spoken about some of these challenges with career staff too. But he always makes it very clear: there were a lot of very good staff who worked very hard, did a very good job, and were making great sacrifices for our country. So, there's not one government-wide answer to how employees resist polices they don’t like. Some don’t resist at all. They are a credit to the civil service. The problem is they have a lot of colleagues who don’t have that attitude. 

The framework of staff operating inside and outside the scope of their duties is also a bit of a false dichotomy, in that any resistance is outside the scope of an employee’s duties. If you have been given a regulation and you know it's a priority for the agency and a competent private attorney could draft it in three weeks and you have a team of a dozen attorneys working on it as their top priority, and you tell political appointees it's going to take thirteen months to draft—this is a real example from the Labor Department—and they're just going really slowly, the equivalent of each employee writing less than one line of regulatory text a day. That's sort of operating within the scope of your duties—you're just going at snail’s pace. But it is also a constructive refusal to work. Versus—and this is another real example—the Department of Justice, where you had career staff refusing to participate in litigation challenging Yale University’s discriminating against Asian Americans in admissions. This is something I care a lot about. My wife came here from China. Her dad was one of the Tiananmen Square leaders and survived narrowly with his life. He was able to get refugee status and he came over in 1990. My wife was able to come to America a few years later. 

It is well established that a lot of universities have hard caps on the number of Asian Americans they will admit. The Justice Department Civil Rights Division under the Trump Administration said “well, this looks like racial discrimination. No matter what racial group you're in, we're going to investigate.” They investigated, found rampant discrimination against Asian Americans at Yale, and wanted to bring a complaint. Career staff would not draft the complaint, so political appointees did and submitted it themselves. Then they turned around to the attorneys in the Civil Rights Division, whose job it is litigate these sorts of discrimination cases, and asked them to assemble a team to litigate the case. The career staff told the appointees that “none of us are going to work on this case.” 

The political appointees subsequently learned that the senior career staff threatened the junior career employees, essentially telling them, “we're going to be here after the Trump appointees are gone and if any of you help them with this case you will be punished. There will be career consequences for you within the division if you give them any assistance.” 

The career staff knew winning this case would mean ending racial preferences in higher education, they didn't want that to happen, and so they refused to do their jobs. And that puts the political appointees in a very difficult position. They could order the career employees to work on the case and then fire them if they refuse, but then you have a team of attorneys working on the case who want to lose. That is less than ideal. This is a huge problem from not just the executive branch perspective, but the legislative branch. If you have a law that Congress passes and the executive branch employees who are tasked with carrying out the law simply refuse to enforce it in certain applications because they don't like them, or they refuse to enforce it at all, then that's not just giving an “F you” to the president and his appointees, that's giving an “F you” to Congress. And by implication, the voters.

Another example, and I discussed this in the report: abortion is obviously a very contentious topic. One thing that Americans broadly agree on is doctors and nurses who don't want to perform an abortion shouldn't be forced to do so. There has been long standing bipartisan consensus on these conscience protections. A very liberal Democrat Senator from Idaho, Frank Church, passed legislation we now know as the Church Amendments. The Church Amendments prohibit healthcare providers that take federal funding from forcing staff to personally participate in abortions. They passed Congress almost unanimously. But the law contains no private right of action, doctors cannot sue over violations. It's up to the DOJ Civil Rights division to enforce these protections. And the career staff don't believe these protections should exist. They don't support conscience rights and they will not participate in cases enforcing the Church Amendments. In the entire Obama administration, a grand total of zero cases enforcing the Church Amendments were brought, and under the Trump administration there was one case brought against the University of Vermont Healthcare Center. But that case had to be staffed by employees from outside the DOJ Civil Rights Division, because almost all the Division’s career employees would not assist with that litigation. 

 The theory of the civil service is that career employees will be nonpartisan actors who will impartially apply their professional expertise. They build up expertise over time in government and then whoever the administration is, they neutrally help them implement the policy agenda. Some do this, to their credit. I also heard of very liberal career staff who would tell the Trump political appointees that “we don’t like your policy proposal. There are six ways from Sunday it is bad idea.” But, once the appointees made the decision, the staff went ahead and carried it out. Those people are credit to the civil service. And it is also of great value to hear those sorts of countervailing views and opposing arguments before you make a decision. 

 But what you see frequently is civil servants taking the next step and saying, “OK, I think it's a bad policy, you didn’t take my advice to drop it … so I'm going to try and kneecap you and prevent you from implementing it.” The notion of a career civil service is incommensurate with the notion that the bureaucracy gets to kneecap the elected representatives’ policy agenda if they don’t like it.

HULR: So, was Schedule F aimed more at the covert level of resistance?

James Sherk: Right now, the career staff are insulated, and they know it. The estimate I heard from a senior agency management official was that if there were people who were sufficiently problematic, he could dot his I’s and cross his T's and fire them, but it would take about 25% of his time for six months to a year. So, you might do that to one or two people. You're certainly not doing it to more than four. It takes too much time and effort that the appointees need to spend actually running the agency to remove intransigent employees en masse. The bureaucrats, as a functional matter, know that they are protected.

Schedule F did not apply to most line federal positions. If you're say, a wage and hour investigator investigating child labor violations or a tax auditor, auditing someone’s tax return, there was no application to you whatsoever. But, for the people who are telling those line federal employees what to do and crafting the policies and guidance that they all enforce, if they want to act like a political appointee and decide agency policy, then they can have the same civil service protections as a political appointee — which is to say, none.

I think there is great value and wisdom in the notion of having people who build up institutional expertise and proficiency at their job. I was sworn in on Inauguration Day, initially at the Labor Department, and then I got moved to the White House a few days later, and the gentleman who swore me in was a long-time senior executive in the Labor Department. They were just going through the process, and I remember thinking, “it is very good that we have people who are here across administrations, who know how things work, and who provide continuity and institutional expertise.” Returning to the spoils system, with mass turnover after each election, would be a terrible idea. But you need to have accountability too and that's what we don't have right now.

HULR: If you were able to reclassify and get rid of those civil servants who were not doing their jobs and who were acting politically, do you think Presidents would appoint people who would do their jobs apolitically, or would there just be more room for political appointees?

James Sherk: First of all, the goal with Schedule F was not to fire bureaucrats en masse. We estimated the order would apply to about 50,000 employees in the executive branch out of 2.2 million. But the goal was not to remove a large portion of those employees. The goal was to get rid of the particularly bad actors. That sends a message to everyone else: “Do your job. Be professional. We've kept your positions as career positions. We are willing to keep you in your job as long as you are professional about it. But if not, see these four other guys who got fired? You can join them if you want to be a political activist on the job.”

That was the vision. But at the same time, I do believe that you need some more political appointees in the government, particularly in a Republican administration, because the bureaucracy leans well to the left. You need more people who basically share the President's policy agenda to carry it out effectively. You have about 4,000 political appointees in the agencies supervising 2.2 million career employees. The political [appointees] are there to provide high level policy direction and guidance and then leave it to the careers to execute. If there are certain jobs that the careers won’t do because they disagree on policy, like suing universities who discriminate against Asian Americans, then you need more political appointees to pick up the slack. But again, it's not like you would be hiring 100,000 more political appointees or anything like that. You probably couldn't find that many good people to appoint.

What I would have in mind for Schedule F would be that it would create an evolutionary process in the bureaucracy. Liberal career staff who sought to undermine conservative policies would be dismissed under Republican administrations, and any conservatives who tried to undermine liberal policies would be dismissed under Democratic administrations. This would bring the bureaucracy much closer to the original vision of impartial experts using their expertise to serve the administration to the best of their ability. Only career staff who serve impartially under Presidents of both parties would remain in the bureaucracy over the long term.

HULR: Do you think that some of these issues could be solved by undoing a lot of the delegation to the federal government that Congress has done in the past couple of decades?

James Sherk: I am a strong supporter of the concept behind the REINS Act, which is basically that any major agency regulation requires an affirmative vote of Congress to authorize. Congress has delegated a ton of authority to the executive branch and I think that creates huge problems.

It's interesting; on the one hand, Congress delegates all this authority to the executive, but on the other hand, things like the civil service rules are a way to try and shape the exercise of that authority so it only serves a particular policy agenda. I get why people on the left are very defensive about the civil service laws, because they make it very hard for Republican administrations to use the authority Congress has given the executive branch to advance a conservative agenda while imposing few restraints on Democratic administrations.

But policy resistance doesn’t only come from the left. In some cases the bureaucracy resists Democratic administration’s policies too. Policy resistance is illegitimate no matter who it affects. Lina Khan is having a tough time with her career staff at the FTC because they don’t like her agenda. It is not so much a left/right thing at FTC as “are you doing what the existing career staff want to do and how they want to do it.” In her case, she's radically re-envisioning the statute the agency enforces and wants to take a much more aggressive view that is at odds with how the agency has interpreted and applied the statute for a long time. And the career staff don't like it very much. They are being … very unhelpful to her.

And look, I certainly don't endorse a whole lot of what Kahn is trying to do there, but she was appointed by the President and confirmed by the Senate, and it was understood by the President and the Senators who voted to confirm her that that's what she was going to do. It is up to the courts to say if she stepped outside the corners of her statutory authority—which they have indeed said quite a few times now. But it is not up to the career staff to say, “we don't like what you are doing.” She should be able to run the agency and if people don't like the policy agenda she's pursuing, then when her boss is up for reelection, they can vote against him. The way that the civil service protections constrain the discretion of the executive branch, but only in the direction that the bureaucracy prefers, is challenging to the notion of small-r republican self-government.

I do think that the executive branch should not be given nearly this much policymaking authority by Congress. Everyone likes it when their side uses executive authority aggressively, and no one likes it when the other side does it. But that policymaking authority should primarily reside in Congress. With Congress you have got all these checks and balances. You've got to get a majority in the House. You've got to get a majority in the Senate. Typically a filibuster-proof majority. The minority that's on the losing end can offer amendments to try and soften the blow. In the executive branch, in theory, you only have to persuade one person. The checks and balances that are designed to ensure that we, the people, have an input in the policy process and minorities are not steamrolled by the majority just do not exist in the executive branch.

One example that comes to mind is the ban on flavored vaping. There are an awful lot of people who quit smoking through vaping, and who like vaping very much. If a ban on flavored vaping needed to get passed through Congress, their voices would have been heard in the policy process. Maybe you would come to the same place, maybe not. But because that policy call was made by the executive branch, really all that had to happen was advocates needed to persuade the FDA Commissioner to ban flavored vaping, and he did. That's not how representative self-government operates. It's basically “we the experts know what's best and we will decide for you.” It’s not self-governance.

The rulemaking power should in most cases be transferred back to Congress, or at least require congressional assent. So if the FDA is going to ban flavored vaping products, your member of Congress has to vote for that rule before it takes effect, and then you can write your member of Congress. Right now, there is no way for John Q. Citizen who objects to executive branch policies to have meaningful input.

HULR: What about Notice and Comment?

James Sherk: It’s not the same. And it's dominated by professional special interest groups who pay attention. Notice and comment is nowhere near to writing your member of Congress, much less voting for someone. The FDA Commissioner doesn't view himself as being accountable to John Q. Citizen. To some extent, he's accountable to the President, but if this is not an issue that's becoming a major issue in a presidential election or if it's only affecting a state that's completely safe for one party or the other, the White House may not be sensitive to it. Congress is designed to be a representative body regularly accountable to people, and the bureaucracy is not. And if you give the bureaucracy the decision-making power, you tend to get policymaking that follows elite preferences and the preferences of the bureaucracy, but those are only tangentially connected to those of the broader public. If you want a democracy the government needs to be accountable. The government and so much of the civil service is just not accountable.

HULR: Thank you very much for your time.