Stuffing the Bureaucracy at the 11th Hour

By Dan Cadman, January 5, 2017

On December 31, the Washington Post published this story: "Federal agencies rush to fill job openings before Trump takes office Jan. 20".

The Post quotes Sean Spicer, the White House press secretary for the incoming Trump administration, as saying this violates an agreement reached between the incoming and outgoing administrations on November 20. It also quotes anonymous sources as confirming that the outgoing administration agreed especially to halt last-minute Senior Executive Service (SES) appointments, but did not necessarily agree to provide a list to the incomers that would make it easier to spot violations of the agreement.

As many readers will be aware, SES appointments are the top of the federal bureaucracy's hierarchical pyramid. They come in two types: political appointments for those at the cabinet and sub-cabinet level, as well as agency heads and the like. But there are also SES appointments of careerists into positions, for instance the deputies and chiefs of staff of agencies, such as those that make up the different organizations of the Department of Homeland Security (DHS), including those responsible for immigration enforcement and adjudication of immigration benefits and naturalization.

Once upon a time, there was a sharp line drawn between political and career SES types, the latter being technocrats who, while perhaps savvy in the ways of their organizations, avoided politics per se. But, as with the Hatch Act itself, that line has been blurred. Many of the SES careerists hired during the eight years of the Obama administration were chosen specifically because they share the same world view — and this is without doubt the case in the sundry immigration agencies within DHS: Customs and Border Protection, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. Without naming names, I can think of various careerists who occupy very senior positions in each of those agencies because they have been more than willing to carry out many of the constitutionally and statutorily dubious programs of the Obama White House.

It would now appear that the Obama administration is acting in bad faith to try to cram as many ideologically simpatico officials as possible into senior civil service positions before they depart for Chicago or wherever they will go after decamping from the White House and the Old and New Executive Office Buildings.

This last-minute cramming poses a difficulty for the Trump White House in many arenas in which the philosophical differences between old and new presidents are marked, which is of course most particularly the case with immigration.

As distasteful as this stuffing of the bureaucracy at the 11th hour may seem (and is), the damage is not irreparable, providing that the Trump administration uses its new authority over the Office of Personnel Management to suss out who these individuals are, what jobs they have been appointed to fill, and, most significantly, what positions they encumbered before the most recent selection.

This last point is of paramount importance, because it is not unknown for outgoing administrations to permit former political appointees to burrow like moles into a new administration by filling careerist positions at the SES, and even the lower GS levels with these former political appointments that are by their nature of a finite duration, unlike career positions.

This notion of "conversion" is not just a theoretical possibility; it is a practice that has had a long and dishonorable history through a number of presidential administrations of both parties. However, the Government Accountability Office (GAO) conducted an audit of the files of OPM and various departments in September of last year ("Office of Personnel Management: Actions Are Needed to Help Ensure the Completeness of Political Conversion Data and Adherence to Policy") and found not only that the practice of making such conversions continues, but that neither OPM nor the departments or agencies audited do a very good job of documenting the practice when it occurs. Significantly, one of the prime offenders, according to the GAO report, is DHS, the department ostensibly in control of our borders.

A cynic might think this failure to document conversions is deliberate, so that ferreting out such moles is not easily done by a new administration. Regardless, it will be important for the Trump administration to take effective action to move such individuals from the positions they newly encumber into other, more innocuous positions should they determine that the individuals are unwilling or unable to hew to the course corrections we, the American people, have been promised, particularly where enforcement of the immigration laws is concerned.