becingber.bsky.social
Law prof at Cardozo Law. Former U.S. State Dept a few times over. Writes on international law, war powers and national security, presidential power and bureaucracy.
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Yes.
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2/ "We’re not asking members of Congress to do us a favor; we’re asking them to do their jobs."
Secretary William J. Perry
Secretary Leon E. Panetta
Secretary Chuck Hagel
Secretary James N. Mattis
Secretary Lloyd J. Austin III
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We didn’t want WWIII, but if it was going to happen, we wanted it to be us and all of Europe vs the Soviets, not us and some of Europe vs the Soviets and some of Europe.
The US supported a united Europe. Not bc we’re suckers, but bc a prosperous, peaceful, democratic Europe was in US interests.
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There is much room to disagree with and challenge US foreign policy over the last many decades.
But working to aid Ukraine and help unite Europe in the face of Russian aggression was an unalloyed good.
One of the many reasons this image sucks the air from my lungs.
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Example 1/n of sitting member of Congress who writes laws and has an independent duty to uphold them, saying she hopes the courts will check the President’s violation of a congressional statute rather than use congressional tools to do so herself.
www.pressherald.com/2025/02/07/s...
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I don’t say this to be a doomsayer. Rather we’ve seen Congress and the public abdicate responsibility when they think some other entity — here courts, then a #resistance from within —would save the country from the President it chose. And the fact is, it is going to take all of us.
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And the career bureaucracy depends for its life on the courts and Congress -- and that means all of us -- continuing to support it.
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I said it then and I will say it again: the career bureaucracy is not going to save us from our political choices. And it shouldn't. It can be an important hurdle, a first line of defense to a president bent on breaking the law and norms. But it is not a barrier.
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In any event, I once spent a lot of time thinking about the career bureaucracy versus the deep state mythology, and I could not be more disheartened that this work is now once again so relevant. Worse than relevant -- reaching a crisis point.
papers.ssrn.com/sol3/papers....
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More often, bureaucratic resistance is a lot more mundane -- asking questions, crossing t's and dotting i's and just making sure the paperwork is filed. What I have called bureaucratic "neutral friction." But all of this might feel menacing to a president who views himself as above the law.
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When an ambassador refuses to help the president seek political favors as a quid pro quo, when a civil servant refuses access to sensitive personnel files to an unauthorized private actor, when a solider refuses to commit a war crime--they act on legitimate authority from an elected body, Congress.
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Both of these mythologies miss the legitimacy and authority that bureaucrats operate with when they *do* constrain presidential action. The bureaucracy may be housed in the executive, but it is created and protected by Congress, and serves as its eyes and ears in areas Congress cannot tread.
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Both of these mythologies miss how the career bureaucracy works as a practical matter--just take a look at any org chart to see how varied and disaggregated the components of the bureaucracy are, and each organizational pyramid comes together in a politically appointed head.
More importantly--
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Trump's critics compounded the myth by overly placing their hopes in a #Resistance-from-within, as if the disaggregated bureaucracy from the foreign service to military to air traffic controllers to FBI agents would band together and conspire to save the country from our own political choices.
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We have been watching this movie now for a while. Trump and his surrogates' "deep state" rhetoric has been pernicious over time in creating a mythology about the career bureaucracy as an organized cabal of bogeymen steering the ship of state in contravention to the will of the elected president.
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Of course, for the entirety of this young country’s history, we have managed to hold up the public law house of cards without needing to enforce it through criminal prosecution of the President. We can continue to do so but it requires faith in the project of public law.
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If the only role for public law is criminal prosecution, then in the wake of that failure and the Court’s immunity decision, perhaps it is no surprise that the public has shifted to a self-defeating nihilism about the President’s current defiance of statutes and the Constitution.
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Relatedly, some legal commentators may have done the public a disservice over the last decade in overly fixating the public imagination on the idea that the former president was going to be perp walked imminently.
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Let’s not pretend this is some complex legal question only special elites like JD Vance can understand. Everyone can see what Trump and Musk are claiming power to do — raze the federal bureaucracy to the ground in contravention of the congressional statutes that build, regulate, and protect it.
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This is the other piece and the most important one — it’s not a neutral theory of presidential supremacy that Vance actually espouses. It’s a theory of my-guy supremacy.