Bureaucratic Resistance and the National Security State 104 Iowa Law Review 2018-2019

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104 Iowa L. Rev. 139 (2018-2019)
Bureaucratic Resistance and the National Security State

handle is hein.journals/ilr104 and id is 145 raw text is:

Bureaucratic Resistance and the National

Security State

Rebecca Ingber*

ABSTRACT: Modern accounts of the national security state tend toward one
of two opposing views of bureaucratic tensions within it: At one extreme, the
executive branch bureaucracy is a shadowy deep state, unaccountable to the
public or even to the elected President. On this account, bureaucratic obstacles
to the President's agenda are inherently suspect, even dangerous. At the other
end, bureaucratic resistance to the President represents a necessary benevolent
constraint on an otherwise imperial executive. This account hails the
bureaucracy as the modern incanation of the separation of powers, an
alternative to the traditional checks on the President of the courts and
Congress, which are faulted with falling down on the job. These deep state
and benevolent constraints approaches to bureaucratic behavior track
debates in the scholarship over the legitimacy of the administrative state more
broadly, and are used as rhetorical devices to challenge or defend current
allocations of power. These accounts lead, respectively, to fear of or over-
reliance on bureaucratic resistance-which I define here broadly as action or
inaction within the executive branch that hinders executive movement-as a
means of checking Presidential power. Fear of bureaucratic resistance results
in an erosion of valuable internal checks on the President. Alternatively, over-
reliance on these internal checks may result in complacency, and an
abdication of responsibility by the traditional external checks, namely members
of Congress and the courts. Both approaches result in an insufficiently
constrained President, which should concern most advocates and opponents
of the administrative state.

* Associate Professor, Boston University School of Law. I am grateful toJack Beermann,
Pam Bookman, Jessica Bulman-Pozen, Bennett Capers, Daniela Caruso, Kris Collins, Ashley
Deeks, Stacey Dogan, David Fontana, Ahmed Ghappour, Paul R. Gugliuzza, Monica Hakimi, Gary
Lawson, Tracey Maclin, Linda McClain, Anton Metlitsky, Gillian Metzger, Jon Michaels, Martha
Minow, Henry Monaghan, Nancy Moore, Mark Nevitt, David Noll, Nicholas Parrillo, Deborah
Pearlstein, David Pozen, Daphna Renan, David Rubenstein, Katherine Silbaugh, Theodore Sims,
Mila Sohoni, Glen Staszewski, Rory Van Loo, Steve Vladeck, and Matthew Waxman, as well as
participants at the Administrative Law New Scholarship Roundtable at Michigan, the New Voices
in Administrative Law workshop at the Association of American Law Schools annual meeting, and
the BU Law faculty workshop, for generous discussions and comments on drafts. For excellent
research assistance, I thank Margaret Chrusciel, Lindsay Ladner, and Stew Sibert.

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