What follows is a stress-tested perspective on the challenges faced by political appointees whose attempts to navigate the bureaucratic swamp and drive change are met with the recalcitrance of the administrative state. Because decision-making power has been delegated deep into the bowels of federal agencies, employees often ignore or frustrate the president’s policies absent clear direction by political leadership. You Report to Me highlights my own experiences with very different approaches to presidential oversight and with executive management of the bureaucracy. I present my views as someone who was initially called to public service as a junior political appointee in the George W. Bush Administration and rose through the political ranks over a decade of public service to lead the same cabinet department.
On a cold day in December 2018, while serving as the deputy secretary at the U.S. Department of the Interior, I received a directive to report to the Oval Office to meet with the president of the United States. This was the first time I had been called to the Oval Office, and the circumstances were not ideal.
I understood that my direct supervisor at Interior, Secretary Ryan Zinke, was in the process of resigning. The Washington Post had reported that Zinke was on the verge of being fired after the department’s inspector general made a criminal referral to the Department of Justice. Zinke, on the other hand, had told me that he was going to resign and that it was entirely his own choice.
Given these divergent reports, I was unsure what to expect as I headed over to the White House.
When I crossed the threshold into the Oval Office, President Trump looked up from the Resolute Desk and told me to take a seat. A kind host, he asked if I wanted a Coke. He made a few comments regarding his perspective on the current situation with Secretary Zinke, then we briefly discussed the Department of the Interior’s priorities. The president appeared interested in our national parks, deregulation, energy activities, mining, outdoor recreation, forest health, and timber management. He then asked my perspective on a few people he was considering as replacements for Zinke. As the discussion wrapped up, he explained, “You’re going to be running the ship for a while. Do you have any questions?”
I cleared my throat, feeling like the backup quarterback about to be thrown into the game. I had many questions, in fact, but I settled on one: “Who do I report to?”
President Trump looked at me quizzically. “You report to me,” he said.
“I know that’s what the Constitution says,” I acknowledged, choosing my words carefully, “but who do I actually report to?”
“You report to me,” he repeated. He could not have been more clear. I reported directly to him and to no one else!
Walking back to Interior’s massive headquarters on C Street, I recognized that the president’s words, if true, meant that my tenure, no matter how short, would be very different from those of the two secretaries I had worked under in the George W. Bush Administration. White House staff had played a major role in overseeing the cabinet then, at least at Interior. It was often a lengthy and difficult process for a cabinet secretary to get an idea or an initiative before the president. The process took even longer when the White House staff held a policy view different from that of the cabinet secretary.
I experienced President Bush’s staff-dominated agency oversight process when I worked as the counselor to the secretary and later as solicitor (chief legal officer) for the Department of the Interior. During that time, I witnessed Secretary Gale Norton working on energy development issues for months with White House staff before she was able to raise them directly with the president. A similar dynamic played out when I worked closely with Secretary Dirk Kempthorne as he wrestled with the question of whether the polar bear was either a “threatened species” or an “endangered species” under the Endangered Species Act (ESA), an issue that caused significant concern among the president’s advisors at the White House.
Polar Bear Drama
The U.S. Fish and Wildlife Service, after missing a legal deadline and entering into a settlement agreement in federal court, had committed to an effort to determine whether the polar bear was a threatened species under the terms of the ESA. In enacting that law in 1973, Congress defined what constitutes an “endangered species” or a “threatened species,” and then tasked the secretary of the interior with establishing by regulation if a given species falls into one of these categories on the basis of five specific factors.
Before making such a determination, the secretary is required to conduct a review of the species’ status and take account of efforts made by any state or nation to protect that species. In doing so, the secretary must rely “solely on the best scientific and commercial data available to him.” These legal requirements placed limitations on Secretary Kempthorne’s discretion. He was not free to adopt any policy that he or the White House might prefer, but was bound by the law that Congress enacted and by the facts before him. Because of the settlement agreement, he could not wait to develop more data before making his determination. At the same time, he recognized the concerns of the White House.
Kempthorne had never had to answer to a boss in his career up to that point, and he agonized over the issue. He was not enthusiastic about making a decision that was inconsistent with the policy perspective of the president or his staff, yet he was determined to make the decision he believed was most appropriate given the law and the facts.
A wide range of entities outside the Fish and Wildlife Service—including other federal agencies, national trade associations, business interests, political leaders, and state governments—were extremely worried that listing the polar bear would trigger an avalanche of new regulations related to global warming under the umbrella of the ESA. After examining the facts and the law, Kempthorne was inclined to list the polar bear as a threatened species. His decision was met with great concern from White House staff. After months of dialogue with lower-level White House staff, Kempthorne and I finally met with the chief of staff, Josh Bolton, who made it clear that he wanted the secretary to take 10 days to consider alternatives before making a final decision.
Over the next 10 days, at Kempthorne’s direction, I worked with a team of lawyers and scientists to write a draft alternative rule, accepting the best scientific and commercial data available but rendering a determination that the polar bear was neither an “endangered species” nor a “threatened species” under the law. It was a massive undertaking. The alternative rule we developed was not an approach that Kempthorne or his policy senior advisors found persuasive. At his request, I called the White House deputy chief of staff and informed him that the secretary planned to go forward with listing the polar bear as a threatened species, despite the concerns expressed by the White House staff.
The deputy chief of staff returned with a message from President Bush informing him that while the president continued to support the views of a majority of his advisors, what mattered most to him was that Secretary Kempthorne was comfortable with his own decision. It was exactly what any cabinet secretary should hope to hear from the president—a message essentially saying, “Congress has tasked you with a legal responsibility to carry out the law. I put you in this position. I know you have carefully looked at the matter. Make the decision you think is right.”
Relieved to hear it, Kempthorne made what he believed to be the correct decision, though many disagreed. But while the message was great, the White House process for arriving at this point was ridiculous, filled with consternation and staff conflict. Most importantly, Kempthorne appeared to have never had the chance to make his case directly to the president.
Given my experience with presidential oversight during the George W. Bush Administration, I was skeptical of the likelihood that I would be communicating directly with President Trump to help him accomplish his agenda. Soon after I took the helm of the Department of the Interior on January 2, 2019, I had occasion to put this approach to the test.
A government shutdown started on December 22, 2018, while I was the deputy secretary. In anticipation of a potential shutdown, informed by Secretary Zinke’s policy direction, Interior had formulated a shutdown plan for national parks and other public lands that differed from the approach taken in 2013 by Obama Administration officials, who had needlessly and inappropriately shuttered parks and even open-air monuments. The National Park Service went so far as to erect barriers around the World War II Memorial on the National Mall so that visitors couldn’t access what is an otherwise open space during the government shutdown. Members of the public were outraged by the Park Service’s actions, which resonated as petty and vindictive. Zinke wanted to avoid a similar controversy and maintain public access to the parks throughout a shutdown.
Under Zinke’s plan, the parks would be left largely accessible and staffed with law enforcement officers. The gates to the parks would remain open and no entrance fees would be collected. This plan assumed the best of the American people. It assumed that visitors to the parks would largely be responsible and would follow the basic tenet of any backcountry experience: “pack it in, pack it out.” While this plan would have worked well for the anticipated short-term shutdown, this particular shutdown lasted over a month, and a few negative consequences appeared after a couple of days. Trash began to pile up in some of the parks, and some visitors misbehaved. Restrooms were either closed or not properly maintained.
The day before Christmas, I witnessed problems firsthand on the National Mall, where many visitors had bought refreshments from the commercial food trucks parked along the mall and left trash that was now overflowing the receptacles and littering the normally pristine lawn. The City of Washington was making an effort to collect some of the trash, but it hardly matched what the dedicated facility staff of the National Park Service did routinely.
On Christmas Day, lacking a more sensible option, I secured a Park Service dually pickup truck and took it to the National Mall, collected loads of trash, and hauled it to a dumpster myself. As I filled bag after bag with trash, the wheels in my head were turning. I thought about the hourly facility workers for the parks who were not getting paid. I wondered if there was a way that I could get the facility and maintenance staff paid and back to work, while keeping Zinke’s general plan of maintaining public access in place. It dawned on me that the Park Service had a reserve of over $250 million from recreation fees. I wondered if that money could be used to pay facilities staff and law enforcement so the parks could be kept clean and safe for visitors during the shutdown.
In previous government shutdowns, some national parks had remained open because particular states agreed to fund the National Park Service’s continued operations that were important to the state economy. Normally these transactions were instigated by local park superintendents or local park concessionaires, who approached state political leaders and asked them to fund these federal operations out of the state taxpayers’ pockets. In addition to accommodating the interest of the state, this approach also ensured that federal employees who would otherwise be furloughed kept receiving pay. During the shutdown in 2013, for example, Arizona footed the bill to keep the Grand Canyon open, and New York ponied up funds to maintain public access to the Statue of Liberty. Once again, in 2018, superintendents at national parks were trying to get the states to fund the operations, even while the National Park Service was sitting on a mountain of cash that could potentially be used for that very purpose. It seemed to me like extortion.
I examined the relevant law and concluded that the Department of the Interior could almost certainly draw from the previously collected recreation fees to pay for law enforcement, trash cleanup, and facility maintenance during the shutdown. Shortly after I had assumed leadership of the department following the New Year’s holiday, the department’s lawyers reviewed the matter, agreed with my understanding of the law, and secured approval from the White House Office of Management and Budget to modify our plan. We had a way to ensure that law enforcement and maintenance staff were paid and in place, to keep the parks accessible to the public, and to avoid the controversies of previous shutdowns, without having to shake down the states.
My decision was bound to get media attention, so I wanted to make sure that White House leadership were informed before reading about it in the press. Recalling my first conversation with the president, I picked up the phone and called his receptionist.
“The White House, how may I help you?” answered the president’s personal assistant.
“Good morning,” I said, “this is Deputy Secretary Bernhardt at Interior. I’m serving as the backup quarterback at the Department of the Interior and I need to get information to the president. He told me I should call him if I needed him to know something, but I don’t necessarily need to talk to him. Perhaps you could send me to whomever I’m really supposed to talk to about items like this?”
She laughed and replied, “The president will call you back in a few minutes.”
Sure enough, President Trump returned my call a few minutes later. I laid out the situation and told him what I intended to do. The whole process took a few minutes.
Such was my experience with President Trump throughout my tenure. He was accessible when you needed his input, his counsel, or a decision, and he was more than able to contact you whenever he had an issue he wanted to be addressed. His willingness to work and communicate with the executives he had placed in various cabinet agencies was extraordinary. He empowered the department leadership while also ensuring that information flowed directly from the agencies to him. He expected to communicate directly with me, and I was expected to communicate directly with him. As a cabinet secretary, I understood that he expected me to determine how best to execute the priorities he had asked me to focus on within the confines of the law and get to work. He was focused on outcomes and expected his department leadership to advance his policy agenda. In my opinion, he allowed competent leaders to move forward at a much quicker pace than many of his predecessors by selecting a goal, letting them get to work, and not allowing his other staff to get in their way.
President Trump’s enabling leadership avoided the massive periods of inactivity that plagued much of my prior experience in the Department of the Interior under George W. Bush. Far more critically, Trump’s expectation that those serving in the executive branch actually report to him reflected a reality about the presidency and his view of it. The Constitution of the United States confers all the executive power of the United States on the president. Only the president has been entrusted by the American people with this power. Therefore, Trump expected that everyone in the executive branch would be working to accomplish the things he committed to the American people that he would do if elected, which he wanted done.
Unaccountability and the Administrative State
When Congress writes legislation and the president signs it into law, that new law almost always authorizes or directs the head of a cabinet department to carry out some new task. As the department head’s responsibilities expand, that person delegates some authority to subordinates to help fulfill the newly assigned tasks. These subordinates are then empowered to exercise this delegated authority, which the department head can withdraw at any time. Each department head serves at the pleasure of the president. Virtually everyone who serves in the executive branch “reports” to the president.
As the nation and the federal administrative agencies have grown, the understanding that every federal employee and every government contractor is acting by a delegation of authority from a department head who serves at the pleasure of the president has drifted out of focus. Those who exercise delegated authority often act as if the executive powers were conferred on them directly, making them not accountable to those who have delegated the authority to them. Such a view is antithetical to representative government and to the Constitution. To the extent accommodated by law, the president’s policy preferences, not those of a subordinate, are to guide executive action. A subordinate—whether a political appointee or a career civil servant—can raise issues to superiors, and always has the option of resigning rather than carrying out an action or a policy seen as repugnant. But the subordinate should not act contrary to direction or engage in subterfuge with impunity. Such actions are acts of insubordination.
Having spent a great deal of my career in the executive branch, I am gravely concerned that many people who work there believe that they have little need to comply with the written words of the law or the regulations of their agency, or with the policies of the elected president. The leaders of executive agencies, for their part, too often view themselves as little more than figureheads, allowing their agencies to run on autopilot rather than fulfilling their responsibility to supervise employees and hold them accountable to the American people.
Both political appointees and career employees have been tasked with upholding the Constitution and the law. It is time for executive branch leaders to exercise meaningful oversight of the bureaucracy and rein in the ever-multiplying agencies of the federal government. Career civil servants must understand that their fidelity to the Constitution and to the American people demands that they carry out the lawful policies of the elected president, whether they find those policies agreeable or not.
Our Bloated, Inefficient Government
I first came to Washington, D.C., in 1990 to go to law school and explore my interest in public policy. Fresh out of college, I thought the nation’s debt was out of control and the government was way too big. The national debt at the time was $3.2 trillion and I was convinced we were heading for financial disaster. As of 2022, the national debt is a stunning $29 trillion. Despite various efforts to rein in the profligacy, the federal government has continued to spend beyond its means and the size of the government has grown bigger and bigger.
The soaring cost of the federal government is not the only problem. Another is its shocking inefficiency. It became obvious to me shortly after I entered the Department of the Interior as a young lawyer in 2001, under Secretary Gale Norton. At the time, I assumed that the secretary could send any letter she wished, to anyone she chose, without jumping over procedural hurdles. Then I learned about something called the surname process, or the clearance process, requiring over a dozen people to sign their approval before the secretary could send a letter. The surname process was not reserved for the secretary’s letters. It bogged down everyday department activities, such as publicizing notices and rules in the Federal Register (the official daily publication for rules, proposed rules, and notices of federal agencies and organizations, along with presidential actions). Moving a noncontroversial document from a field office to Washington and then on to the Federal Register could take months. The surname process seemed to me so needlessly time-consuming that one day I set about to learn how it originated.
At first, I found no report or documentation citing the initial impetus for the surname process or indicating that it had been drawn from best practices over the years. Instead, I had to search for the “lore” of how the process came into existence. Basically, I was told that the surname process for documents going to the Federal Register began when a chief of staff to the secretary of the interior in the 1990s had been surprised by a newspaper article about a department action that he didn’t like. When the chief of staff asked agency employees where the reporter had found the information, he was told it had been published in the Federal Register. The chief of staff decided that he wanted to review all documents going to the Federal Register from then on. I’m confident that he had no idea what he was setting in motion.
The deputy secretary walked into his office not long after and found him surrounded by dozens of packages. “What are you doing?” he asked.
“Well,” replied the chief of staff, “I’m surnaming all of the packages for the Federal Register.”
The deputy secretary considered this for a moment. “OK, but you’re the chief of staff—a staffer to the secretary,” he said. “You don’t have anything to do with operations. I need to see those, too.” The deputy secretary then joined the chief of staff in surnaming documents. The deputy secretary’s action caught the attention of the department’s solicitor, who has to review any document before the deputy secretary can sign it. So he too joined what was becoming the surname process, suddenly reviewing documents he had previously not needed to review, which in turn caught the attention of the assistant secretaries, their staff, and the bureau directors.
There’s a common reality among government actors: “My boss is looking at a document, so it must be important. If I’m not looking at it, I’m not important.” Eventually, dozens of people were involved in the surname process, and supposedly it was all because a chief of staff didn’t like a story he’d read in the paper.
The process continued for years, largely unquestioned, and was essentially treated as an internal procedural requirement. No one developed a more efficient process to serve the same purpose. The department staff outside Washington, as well as members of the public who were interested in the publication of particular documents initiating or announcing government decisions, were frustrated by how long it took to get simple notices into the Federal Register.
When I returned to Interior as deputy secretary, I worked to streamline the surname process and other inefficient channels as part of the department’s effort to better serve the American people. For example, the review process for environmental impact statements drafted in the field was extraordinarily cumbersome. A team of people in the field would work on a draft document for years before sending it to D.C., where it would then spend months moving from desk to desk. The state directors of the Bureau of Land Management (BLM), which falls within the Department of the Interior, were irritated by how long it took headquarters to review those environmental impact statements. We made the review process more efficient without changing a single environmental standard.
The state BLM directors are members of the Senior Executive Service, a tier in the civil service that is equivalent to generals in the military. They have a lot of authority, so I proposed a procedural change that would place accountability directly on their shoulders. I told the state directors that if they read every environmental impact statement they wanted to submit to the Federal Register, had their lawyers review every document with them, and then put their name on it, they could send the document to me. I would read it myself, and then we could invite everyone in Washington with an interest in it to a meeting or a conference call for discussion. Instead of going through 30 layers of people, we organized a single phone call to deal with any concerns.
As a result, the average length of time it took the BLM to initiate and complete an environmental impact statement dropped dramatically. The change also improved the quality of the impact statements because senior managers actually had to read the documents and defend their team’s work product. They were now directly accountable for the environmental impact statements, not 40 people whose names were on a surname sheet. By getting people in a room or on a call together, we could also tell whether or not the state directors had read the documents. When they did, those directors realized how poorly drafted and redundant the documents had become. It appeared to me that managers had been forwarding documents to D.C. for years without having taken the time to read them before attaching their name. Most importantly, when decision makers had to be accountable for the documents they provided, the very purpose of the National Environmental Policy Act was better served. Instead of developing environmental impact statements just to stave off litigation, staff began drafting documents that truly informed agency leaders of the potential consequences of proposed actions and set out a reasonable range of alternatives.
In the absence of clear deadlines and effective oversight, routine agency processes can morph into unrecognizable caricatures of government procedure, with little benefit to the public. As the size of government grows ever larger, agencies become further removed from the mission of delivering services for the American people and less responsive to their needs.
I hope that by sharing my perspective I can help Americans appreciate that a representative government requires the political leadership—of both parties—to reassert control of administrative agencies. Our institutions are failing the American people and will continue to do so until accountability is demanded by the public and restored by our political leaders.