All three branches of government are answerable to the Constitution
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Did you know that the organizational chart for the federal government is the only one you’ll ever see that doesn’t have a person or group of people in the top box? Instead, the three branches of government, including President Donald Trump’s executive branch, sit equidistant from each other on a horizontal row below the top box. And inside the top box is the Constitution.
When a federal employee sent me the org chart during the 2016 campaign, I thought of it mostly as a piece of quirky trivia — hey, look, nobody’s in charge! But I’ve thought about that chart again and again in the last week as people in the federal government have either joined forces with the White House or acted out against it in ways we’ve never seen before.
This week Politico reported that two staffers on the House Judiciary Committee had signed nondisclosure agreements with the Trump transition team and worked on the executive order on immigration without informing House leadership or even their own boss what was in the order. It made me wonder if that was even legal, let alone a fireable offense. Whether or not to fire the staffers is up to Chairman Bob Goodlatte, who doesn’t seem overly upset about the arrangement. He said he knew they were working with the transition, but did not say if he knew what was written or that the staffers signed NDAs.
Employment lawyers I spoke with told me that as president, Trump cannot legally ask any federal employee to sign an NDA anymore, although they’re always bound to keep classified and personal information private.
But when congressional staffers secretly work for the executive transition and sign a contract not to tell members of the legislative branch what they’re doing, it begs the question of whom congressional staff and even members of Congress are going to be working for over the next four years — their voters, their constituents, their party or their Constitution?
The same questions hold for staff and members when it comes to working for or against the president’s agenda — who are you working for when you block a nominee or filibuster a Supreme Court pick? Who are you working for when you give a nominee a pass or look the other way in matters of oversight? Advocacy groups and donors are exerting more pressure than ever on lawmakers right now, but they don’t show up anywhere on the org chart when it comes to whom Capitol Hill works for.
That tension — between people’s loyalties, their politics, and their responsibilities — won’t be limited to Capitol Hill during this administration and the answers won’t be clear-cut.
When acting Attorney General Sally Yates announced last Monday that she had instructed lawyers at the Department of Justice not to enforce President Trump’s executive order, the president quickly fired her. Employment lawyers I spoke to said that Trump was well within his right to do that, since Ms. Yates was a political appointee. Unlike civil service employees, Yates and anyone else appointed by a president serves at the pleasure of the president, no matter who that is. They can be fired for a good reason or for no reason at all.
But civil servants are a different story. When nearly 1,000 State Department employees signed a dissent channel to object to the president’s executive order, White House Press Secretary Sean Spicer lashed out at the employees and said they should either “get with the program or go.” That advice certainly holds for political appointees, but it wasn’t true for State Department career personnel, who have such channels specifically to give them a way to dissent from the president. In fact, all career civil service employees have significant protections to ensure that a person is not fired for their politics or political statements.
Whether or not they voted for the president is beside the point as long as the federal employees are performing their jobs properly. But whether they really want to spend their days working for an administration they don’t support is probably a question they should ask themselves.
State governments often have their electorate at the top of the chart. Companies may have the CEO or the board of directors.
But the chart distributed to federal employees to illustrate their role in the sprawling organization reports to no person, no boss, no board of trustees or political party. Instead it ties up neatly at the top underneath the document that Americans agreed to more than 200 years ago as their means of self-government.
The president swears an oath to uphold the Constitution and so do members of Congress. And so does every federal employee — a decision made by President Abraham Lincoln in the 1860s to make it abundantly clear where government workers’ loyalties must lie — not with a person, an idea, a movement, or even with him, the president.
Ultimately, he — and they — were responsible to the Constitution. And nothing has changed.
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