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The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By John Pearson
November 11, 2016
Many commentators claim we are becoming a lawless nation. You can see that by doing a Google search of, “Is America becoming a lawless nation?” There are entries going back to 2004.
Rich Lowry, the editor of National Review, recently said, “…we have a lawless government at the moment,” because the FBI director declined to prosecute Secretary Clinton. The columnist George Will claimed in 2014 that Obama was a lawless president for multiple reasons.
We have Professor Howard’s assessment that public servants “consistently shove rules aside to get to a sensible result.” (See the Perspective article in the January/February 2016 issue of Public Administration Review).
Based on my own experience in the U.S. federal government and other observations, I would have to disagree with these dire assessments. I believe federal employees (including presidents) comply with the laws as written to a very high degree. Critics who claim we are lawless are overgeneralizing from a tiny percentage of implementation issues. Even for these limited issues, critics fail to consider the counterarguments that the conduct in question was, in fact, legal.
Consider the claim that the Internal Revenue Service (IRS) has been lawless because of its handling of section 501(c)(4) of the Internal Revenue Code with respect to Tea Party and other conservative organizations. The factual history of this issue is very complex. Section 501(c)(4) provides tax-exempt status for social welfare organizations and local associations of employees. In my opinion, the IRS was reasonable in questioning Tea Party applications for exemption because of the obvious involvement of these organizations in elections.
First, I would point out that section 501(c)(4) is one small rule in a vast IRS code. Other sections have not been controversial; so in percentage terms, the IRS is doing very well even if they are wrong on section 501(c)(4). Second, the IRS has provided a rebuttal to the charge that its behavior was politically motivated and unlawful. Here is a Q & A on the issue. They admit no political bias, only inappropriate delays.
Consider the charge that Federal Bureau of Investigations (FBI) Director Comey’s decision to not refer Secretary Clinton for criminal prosecution for mishandling her emails is evidence of lawlessness. First, this is one data point and second, the Director argued strongly that the evidence did not warrant criminal prosecution. He said it would be “celebrity hunting” if he referred her for prosecution. He said that administrative punishment (such as reprimand, suspension without pay or firing) would have been appropriate if such conduct had occurred within the FBI, not criminal prosecution. Here we have prosecutorial discretion in one high profile case out of thousands and thousands of cases. This is a difference of opinion not lawlessness.
Throughout my career, I noticed agency staff constantly looking at the U.S. Code and the regulations to be sure what they were doing was defensible. Agency officials knew they had to be able to justify what they were doing to Congress and the public. If a constituent challenged what we were doing, we had to be able to cite chapter and verse to justify our decision. Agencies know any issue could become a court issue. They are very careful about what they do.
Consider the recent Supreme Court decision in King versus Burwell. This decision addressed a challenge to the administration’s interpretation of a small but critical snippet of text (less than a sentence) from the very complex “Obamacare” legislation. The administration claimed that subsidies were allowed on the federally operated exchanges as well as the state operated exchanges. The Supreme Court upheld the administration’s interpretation of the text in question. As with any implementation decision, the administration had to be pretty sure of the legal basis for its position before it acted.
Consider President Obama’s list of executive actions to reduce gun violence issued January 4, 2016. This is a very modest list of gun control measures for a president with an intense interest in gun control. No doubt the list is modest because the president’s lawyers and staff determined that only these modest actions could stand up to court challenge.
Consider the numerous legal opinions produced by the Bush administration to justify “enhanced interrogation techniques.” It was important these techniques did not constitute torture because law and international treaties prohibit torture. The Bush administration did not want to be branded as lawless.
As a recent retiree, I can personally testify as to the implementation practices at several agencies: the Social Security Administration (SSA), the Centers for Medicare & Medicaid Services (CMS), the Office of Personnel Management (OPM) and the Thrift Savings Plan (TSP). I found these agencies were very diligent in handling my issues. They applied all applicable laws – even obscure or difficult ones.
Overall, calling the U.S. a lawless nation is a gross exaggeration. Critics seize on one or a handful of issues they disagree with and ignore thousands of noncontroversial implementation decisions that follow our laws.
Author: John Pearson recently retired from a lengthy career in the federal government where he was a program analyst. He has an MPA and a bachelor’s degree in economics. He now writes columns reflecting on his experience in government. [email protected]