Abstract

The American administrative state is at a turning point. Between the Heritage Foundation’s Project 2025 plan for a new Republican administration and the current cases before the US Supreme Court questioning long-standing foundations of administrative law, populists are putting a target on the backs of independent agencies and their expertise. The success of either Project 2025 with its proposal to mass-fire civil servants to replace them with political appointees or a victory for the current plaintiffs challenging the “Chevron doctrine” at the Supreme Court may erase the tradition of having neutral state officials and specialized expertise play a crucial role in policy processes.   
 
The US is not alone in this; aspirational autocrats around the world have found ways to mass-fire civil servants and eliminate professional expertise as part of their campaign to bend the state to their will. Those who have been tracking democratic backsliding around the world have shown that attacks on a neutral and expert civil service come straight from the autocratic playbook.  
 
But precisely because so many people have taken the idea of a politically neutral and expert civil service for granted, it is hard to muster a principled defense of the tradition. Why, in a democracy, don’t all state employees serve at the pleasure of elected officials? What authorizes agencies to bring specialized expertise to bear if that expertise has not been democratically certified? Why should the pledge to replace career civil servants with political appointees not be greeted simply as the ever-increasing democratization of government?  
 
As those who seek to replace career civil servants with political appointees and to substitute purely political agendas for professional expertise get closer to realizing their vision, it is necessary to recover the history, experience and philosophies of governance that brought virtually all of the democratic world to this model of state organization and to assess what – if anything – is worth defending.

In this workshop, historians, political theorists, political scientists, law professors and practitioners will gather to consider the present state of the career civil service with the goal of educating each other and sharpening our sense of the defensibility (or not!) of placing long-serving neutral experts in the heart of democratic government.   

The workshop is open to PU ID holders. The panel on “The End of Civil Service?” is open to the public.

Schedule

Friday, April 26

Wooten Hall, Room 301 (unless otherwise noted)

9:45 - 10 am Opening welcome: Kim Lane Scheppele

10-11:15 am  The Democratic Challenge of Politically Buffered State Bureaucracy

This session will foreground democratic objections to having long-term politically buffered state employees carrying out key state functions.   We will focus on the questions of democratic accountability and the preference for elite over common knowledge, laying out the core normative question of the workshop:   Why should long-term neutral and expert state employees have such a large role in the creation and administration of policy in a democracy? 

Opening comments:
Mark Graber, University of Maryland Carey School of Law  
Steven Macedo, Princeton University 
Joseph Heath, University of Toronto 

11:30 am – 12:45 pm Before the Civil Service – America and Elsewhere

This session will focus on the various historical trajectories through which states came both to buffer “officers” and employees of the state from political winds of change and to create legal structures through which these employees stayed in office longer than the democratic officials who were guiding them.  Why did the United States – and other states – settle on the model of a neutral civil service?   What were the roads not taken?

Opening Comments:
Melissa Lane, Princeton University
Jane Manners, Temple University Beasley School of Law and Law and Human Values Faculty Fellow, Princeton University.  
Matthias Rossback, State of North-Rhine Westphalia, Germany (speaking in personal capacity)

2-3:30 pm   Public Panel: Heritage Foundation's Project 2025: “The End of the Civil Service?” 
Aaron Burr Hall, Room 219

With the publication of Project 2025 by the Heritage Foundation, the political neutrality of the civil service in the United States has come under serious challenge.  Starting with then-President Donald Trump’s executive order creating Schedule F which would have reclassified key civil service employees as workers who could be fired at political will, Project 2025 proposes to bring independent federal agencies under direct control of the President. Project 2025 not only changes the structure of federal employment but does so with a particular set of political aims in mind:   To entrench a conservative program across the board by ensuring that federal agencies must follow directions from the top.   

Chair:  Kim Lane Scheppele, Princeton University

Panelists:
Daniel Weiner, Brennan Center for Justice
Paul Starr, Princeton University 
Cary Coglianese, University of Pennsylvania Carey School of Law 

4-5:15 pm  The Judiciary v. the Bureaucracy:  Who Has the Last Word?

A politically buffered civil service is not the only not-directly-accountable feature of modern democracies; judiciaries with the power of judicial review are also in the mix.  In the US at the moment, the long-standing Chevron Doctrine is under attack.  Chevron is the 40-year-old Supreme Court precedent establishing that courts must defer to an agency’s reasonable interpretation of an ambiguous statute.  Two cases before the Court this term challenge this doctrine, and all signs indicate that the Court is ready to strike Chevron down.   But rather than restore the interpretation of laws to those who are directly democratically elected, the Court seems poised to reserve those questions for itself.  Where do courts fit into the mix as we think about the structure of the democratic state and how does judicial oversight of administrative agencies affect the democratic accountability of their decisions?  

Opening comments:
Jed Shugerman, Boston University School of Law
Cary Coglianese, University of Pennsylvania Carey School of Law and Director of the Penn Program on Regulation 
Nicholas Parrillo, Yale Law School 

5:15-6:30 pm   Administrative Self-Defense

As politically buffered state bureaucracies come under attack in the US and elsewhere, what methods of self-defense can and should state employees use to maintain their neutrality and to preserve their ability to bring expertise to the policy table?    In some places, state employees have formed unions; in other places, they rely on appeals to the judiciary.  In still other places, they open up their decision making processes more directly to democratic input.  What are the options for embattled bureaucrats to defend themselves?  And, in keeping with the theme of the conference, can politically buffered bureaucrats be defended on democratic grounds?

Opening comments:
Oren Tamir, soon to join the faculty at the University of Arizona Law School
Nicholas Handler, Stanford Law School 
Andrea Scoseria Katz, Washington University School of Law, St. Louis 

Saturday, April 27

Wooten Hall, Room 301 

9:30-10:45 am Democratic Backsliding and Autocratic Control of the State

All over the world, democracy has come under attack from both right (in Europe and North America) and left (in Latin America).  Aspirational autocrats are winning elections and then entrenching themselves in power so that they cannot be removed. A key element in this entrenchment is taking control of the state bureaucracy so that autocratizing programs cannot be stopped by state employees who refuse to carry out orders.   Instead, the bureaucracy becomes a weapon in the battle for political control. In this session, we will extend our discussion to the role of state bureaucracies in countries undergoing democratic backsliding, which (all indicators show) includes the United States.  

Opening comments:
Pratap Mehta, Princeton University
Netta Barak-Corren, Hebrew University and Law and Human Values Fellow, Princeton University

11 am -12:15 pm   Ways Forward and Hopeful Examples

In this workshop, we’ve put the current challenges to the American administrative state into historical and comparative perspective, in order to ask how politically buffered state employees fit (or not) a model of democratic governance.    In this session, we will consider possible avenues forward for the US in a legal world without Chevron and in a political world where the administrative state is persistently under attack from one side of the political spectrum in particular.  As we think about ways forward for the US, we will consider some hopeful examples where bureaucratic reform had led to increasing the democratic accountability and resilience of the state.  

Opening comments:
Kim Lane Scheppele, Princeton University