Notice & Comment

The Federal Bureaucrats in Your Neighborhood, by Dave Owen

In his influential dissent in Garcia v. San Antonio Metropolitan Transit Authority , 469 U.S. 528 (1985). Justice Lewis Powell offered up a harsh take on federal administrative governance. “The administration and enforcement of federal laws and regulations,” he wrote, “necessarily are largely in the hands of staff and civil service employees. These employees may have little or no knowledge of the States and localities that will be affected by the statutes and regulations for which they are responsible. In any case, they hardly are as accessible and responsive as those who occupy analogous positions in state and local governments.” Id. at 576-77.

There is nothing exceptional about this assertion. Other Supreme Court opinions contain similar statements. Politicians voice similar critiques all the time. Academics, too, tend to view the federal government through this lens. A bedrock assumption of many political, judicial, and academic debates about federalism is that federal governance means governance by somewhat isolated and insulated bureaucrats in Washington, D.C. That assumption in turn animates many prescriptions for reform.

In a recent article, however, I argue that this common assumption is wrong. The argument begins with a simple fact: most federal bureaucrats do not work in Washington, D.C. Indeed, over eighty percent of federal employees work outside the Beltway, in places as remote as the Malheur National Wildlife Refuge and in major cities across the nation. Nor is all the authority concentrated in Washington. Most federal agencies do have their headquarters there, and D.C. officials and staff therefore do exert a disproportionate influence on federal governance. But a disproportionate influence is not the same thing as complete dominance, and in many agencies, the difference is huge. For example, in the U.S. Army Corps of Engineers’ regulatory program (which was the primary focus of my research), key decisions about regulatory governance are made in division, district, and field offices across the entire country (in the article, and in this post, I use the umbrella term “regional offices” to describe all of these sub-national offices). District commanders “are the ones who make the decision,” one staff member in the D.C. headquarters explained to me, “and we reinforce that every chance we get.”

Why does this matter? To some readers of this blog—particularly those who work for the federal government in places other than Washington, DC—the geographic decentralization of federal agencies probably is old news. An article that just purports to uncover this phenomenon therefore would have a bit of a Columbus-discovering-America ring to it; it would bring into focus a reality that, for many people, never was obscure in the first place. But acknowledging the geographic decentralization of the federal government matters because assumptions about centralization underlie the worldviews of many important decision-makers, and also their prescriptions for governmental reform. To provide just a few examples:

Justice Powell’s claim that federal employees are ignorant of local conditions is not at all unique. Many Supreme Court opinions and academic articles make similar claims, asserting, for example, that empowering states “assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). For some agencies, this may be accurate; the Office of Information and Regulatory Affairs, for example, is a purely D.C.-based entity. But suggesting that federal employee who was born and raised, and now is employed, in some Midwestern city is less aware of local conditions than a state employee in that same city is a facially dubious proposition. According to the federal employees I interviewed, that assertion also is generally false. As one longtime Army Corps staff member explained, “[i]n terms of [the states] knowing the resource better than the feds, my sense of it is that’s not necessarily true because . . . the way our geographic jurisdictions are established our staffs are very familiar with the resources and . . . our applications are very sensitive to the region.”

From Alexis de Tocqueville to Cass Sunstein, scholars of American governance have warned that the geographic centralization of administrative governance will decrease the accessibility and accountability of governance. Indeed, according to some scholars—and some Supreme Court justices—the lost accessibility associated with an over-centralized federal government is a real and problematic phenomenon. Again, that may be true for some agencies. But for the Army Corps staff I talked to, phone calls and meetings with local officials, state regulators, and private entities in their immediate geographic areas formed a significant part of each day’s work.

Assumptions about unaccountability have important implications for debates about executive authority. In recent years, many prominent legal thinkers—then-professor Elena Kagan and Chief Justice John Roberts among them—have argued that heightened presidential authority is necessary to ensure accountability within the federal government. The basic theory is straightforward: the president is accountable to the electorate, while lower-level federal officials are buried within a faceless, inaccessible bureaucracy, so accountability means ensuring those bureaucrats are more directly responsive to the president. But if geographic proximity promotes daily interaction, and daily interaction in turn creates alternative pathways of accountability, then centralizing more authority within the parts of the federal government that really are in Washington D.C. may not be such a good idea. Particularly for the routine issues that government encounters every day—and that few voters pay any attention to—establishing a field office may be a better pathway to accountability.

One of the basic premises of federalism theory is that state and local governments are the “laboratories of democracy,” the places where governmental innovation is most likely to arise. As the Supreme Court once put it, a governance system that reduces the power of the federal government and empowers states “allows for more innovation and experimentation in government.” Gregory, 501 U.S. at 458. That premise again animates many proposals for reform. Federalism and governance scholars from a variety of different schools of thought and ideological persuasions seem to agree that geographic centralization diminishes the federal government’s ability to experiment or innovate. But my research uncovered ample evidence that regional offices within the federal government can, and do, serve as incubators for innovative ideas. Those offices also can help convey state and local ideas beyond their places of origin—a subject to be explored in more detail in a later post. Those capacities suggest that the traditional rhetoric about federal uniformity is overblown.

In that same Garcia dissent, Justice Powell contrasted the flaws of federal governance with “the far more effective role of democratic self-government at the state and local levels.” 469 U.S. at 576. His point, essentially, was that federal governance is less democratically legitimate then state and local governance. Again, that is not a particularly rare assertion. It pervades political rhetoric, and I have heard similar things said many times in my classrooms. At the margins, it energizes the kinds of people who think that traveling, heavily armed, from other states to eastern Oregon, taking over a federal wildlife refuge (and thus, ironically, keeping federal employees who actually live in nearby communities from going to work), and demanding reduced federal land management authority is somehow a heroic thing to do. Justice Powell, of course, did not go nearly that far. But if the caricatures that judges, justices, and legal scholars often paint of the federal government get further distorted in some dark corners of the popular imagination, that should not be all that surprising. And if, instead, we acknowledge that federal bureaucrats are often our neighbors, that acknowledgment should weaken claims that federal governance faces a legitimacy deficit.

In short, many of the advantages that federalism theory has traditionally ascribed to state and local governments are shared by sub-national offices within the federal government. That does not mean that regional federal offices and state and local offices are interchangeable; clearly there are differences in structure and authority, and federal, state, and local offices do respond to different segments of the electorate. But the differences are much more subtle than the traditional rhetoric of federalism has let on.

*Dave Owen is a professor at the University of California, Hastings College of Law, where he teaches courses in environmental, natural resources, and administrative law.