Impeachment Charade Proves It’s High Time To End Court Deference To Biased Federal Agencies

Impeachment Charade Proves It’s High Time To End Court Deference To Biased Federal Agencies

This entire episode, and many more, should cause us to rethink certain legal principles related to federal employees that have governed us for decades.
Cleta Mitchell
By

The public hearings in the House impeachment inquiry have demonstrated one conclusive fact: career federal employees who have testified, as well as the secret federal employee who started all this, are not whistleblowers. When President Trump upset their established order, they became tattletales.

Listening to and watching the testimony brought back stark reminders of what happens when civil-service-protected federal employees decide to ignore established law and precedent and throw in with one political party to do its bidding against the party’s—and the employees’—political opponents.

I represented a number of citizens groups during the targeting by the Internal Revenue Service (IRS) between 2009 and 2013. Hundreds of such groups involving thousands of American citizens suffered at the hands of career civil service IRS employees. The employees deep-sixed and held up for years the applications for exempt status of hundreds of tea party and conservative organizations. It was all in keeping with concerns by Democrats in Congress and the Obama administration about the rise of these conservative voices.

I spoke to a number of IRS employees over the four years of the scandal, but never once did any one of them cough up that something screwy was going on, even when I asked directly, “Are you holding up the application because of this group’s opposition to Obamacare?” They lied and said “No, of course not.” Not one IRS employee ever felt compelled to formally report or blow the whistle in any manner on the clear wrongdoing by the top brass in the agency.

Why? Because the federal workforce, largely in Washington, DC, shares the same political beliefs and philosophies as the Democrats and their hometown newspaper, the Washington Post. So when President Obama orchestrated a political jihad against his opponents, IRS employees were only too happy to accommodate him.

After former Rep. Peter Roskam (R-Ill.) took over in 2015 as chairman of the IRS Oversight Subcommittee of the House Ways and Means Committee, he conducted a town hall meeting with a large group of IRS employees. When he talked about his concerns regarding the targeting and the need to ensure it didn’t happen again, some IRS employees reportedly challenged his comments, arguing he was in the grip of “dark money” groups, and justifying the targeting as “morally necessary.”

We have now witnessed House Democrats trotting out career federal employees who have apparently engaged in gripe sessions about President Trump’s conduct of foreign policy because they disagree with it. Somehow, the president’s views, described very clearly during the 2016 campaign, run afoul of the views of the smart people in the career ranks of the foreign service.

Before these hearings, most people had never heard of the “interagency consensus,” which is apparently the foreign policy position of the United States toward every country in the world that is agreed to by career federal personnel, notwithstanding the contrary views of the elected president of the United States.

This entire episode, and many more, should cause us to rethink certain legal principles related to federal employees that have governed us for decades.

In particular, the hearings provide ample grounds to overturn the Supreme Court’s 1984 decision in Chevron U.S.A., Inc. v. National Resources Defense Council, in which the court articulated a principle that federal agency decisions should receive deference in federal litigation because of the “expertise” of the federal agency in matters involving the agency. Known popularly as Chevron deference, it presupposes that the agency and its employees are not only experts, but are philosophically neutral in the discharge of their duties.

What we’ve seen during the Rep. Adam Schiff hearings is that “experts” in federal agencies exhibit bias and political philosophies of their own. They are not neutral.

None of the precincts in and around Washington DC are red. When the votes are cast, 100 percent of the precincts populated by large numbers of federal workers are blue. Every review of political contributions by federal employees reveals that federal employees give virtually no campaign contributions to Republican candidates.

Judicial deference to decisions made by the partisans populating federal agencies is tantamount to courts stacking the decks against any litigant who doesn’t toe the Democrats’ party line on a wide range of issues and policies.

It isn’t just that these people form the backbone of the resistance to President Trump. The reality is that no conservative, smaller government, pro-America president will ever be allowed success by these partisans who command and control the direction, actions, and decisions of the federal government.

These hearings offer the strongest argument yet for overturning Chevron deference. The highly prejudiced and political decision-makers of the federal government and its obviously opinionated employees should be never be afforded deference by the federal judiciary.

If we learn nothing else from the impeachment inquiry, it should be abundantly clear that the federal workforce is a political party of its own and does not deserve judicial deference of any kind.

Cleta Mitchell, Esq. is a partner in the Washington, DC office of Foley and Lardner, LLP. She represented numerous citizens groups targeted by the Internal Revenue Service during the Obama administration.

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