In recent days, Acting Attorney General Sally Yates announced that her department would not defend the president's executive order on immigration. She was promptly fired. President Trump said she "betrayed the Department of Justice." About one thousand State Department career foreign service officers and civil servants used the agency's "dissent channel" to disagree with the same order, prompting Press Secretary Sean Spicer to tell them they should "either get with the program or they can go." Many Americans agree with the president and his press secretary. They are tired of obstruction by bureaucrats. Others cheer the federal workers, recalling the horror of Nazi Germany's civil servants who just followed orders.
This issue is not new. Civil servants have taken what they regard as principled stands before. The "dissent channel" was used to question President Obama's lack of more aggressive action on Syria. Some civil servants objected to the use of "enhanced interrogation techniques" during the Iraq War. Presidents, of course, don't usually appreciate federal workers who refuse to "salute the flag."
What is the obligation of government workers when they disagree with what they are directed to do? This question is important for them but also for us, since our judgment of and trust in the bureaucracy and its leaders - and our understanding of our governmental system - depends on the answer.
Fortunately, there is a touchstone: the U.S. Constitution. Every public servant, from the president to the lowliest clerk, takes an oath to "preserve, protect and defend" it. American civil servants do not take an oath to obey the president. While in almost all cases they should and do, this distinction matters. When orders from superiors appear to civil servants to conflict with Constitutional values and established law, they have a moral obligation to object. The way in which they should do so, not their obligation to do so, is the relevant question.
Unfortunately, most civil servants get little help in thinking through this. Taking the oath is usually sandwiched between signing forms and getting office supplies on their first day at work, rendering it devoid of the historical and moral force it should play in their careers. Nor do they receive training in taking an ethical stand when they need to do so.
Unfortunately as well, most citizens - including some presidents - don't appreciate this obligation. Using the business model with which they are most familiar, they assume that you do what your boss says or get fired. They see bureaucrats as pampered employees who ignore or defy their boss with an impunity unacceptable in the private sector. Yet government is not a private business. Employees of private companies don't take a solemn oath to defend the Constitution. The goal of business is profit. The end of government is justice.
Further, leaders in government who insist on lockstep compliance and prevent or punish dissent are asking their employees to disregard their professional expertise, which they are duty-bound to provide. Such leaders disrespect their own Constitutional oath. Without a willingness to consider the knowledge their subordinates provide, they can't be sure they are doing the right thing. Indeed, the State Department's dissent channel was established expressly for this purpose. From the Bay of Pigs to Vietnam to Iran-Contra to Abu Ghraib prison, just to cite recent examples, we know too well the consequences for presidential efficacy and America values when dissent is submerged or punished.
President Trump had the right to fire Sally Yates. She was a political appointee, serving at the pleasure of the president. Yet when he told her she betrayed her agency, he was wrong. She used her best professional judgment about the law and her reading of the Constitution to take a principled stand. You may disagree with her conclusion, but her action was honorable.
President Trump does not have the right to take punitive action against career civil servants because they disagree with him or his appointees on Constitutional grounds. Merit System Principles were established in law to ensure that employees are protected against such retaliation because faithfulness to the Constitution is more important than obedience to superiors. This does not, of course, mean that civil servants should glibly or thoughtlessly disobey. Such acts are a form of civil disobedience and, in the extreme, threaten the administration of government and the public trust. Civil servants have an obligation to voice their concerns internally, in private, and to use the chain of command to seek decisions consistent with the Constitution and the law. Only when that fails, and they have carefully considered the appropriateness, manner, and impact of public dissent, should they take more serious action.
The administration of our government depends on mutual respect among political leaders and public servants - and an understanding by them that they each have a Constitutional obligation. It depends on blending the professional judgment of long-serving careerists with the political judgment of the people's elected and appointed officials. Finally, it depends on the public's appreciation and support for this and thus on respecting public servants who thoughtfully, carefully and honorably dissent because they want to "preserve, protect, and defend" the Constitution.