You Report to Me: Accountability for the Failing Administrative State

By David Bernhardt

In this firsthand account, David Bernhardt, 53rd Secretary of the United States Department of the Interior, describes how he witnessed firsthand the administrative state's transformation from a collection of departments under the command of the President into a sprawling and unaccountable bureaucracy.

“Resistance” to the Trump presidency within the civil service drew media attention, but it was only part of a larger problem: a federal bureaucracy that often goes its own way, contrary to the policies of elected leadership. In this insider’s account, David L. Bernhardt reveals how the bureaucratic swamp really operates and how unaccountable power has been concentrated deep within the administrative state, resulting in dysfunction.

Executive agencies were created to implement legislation and presidential directives, yet career civil servants use them to advance their own agendas instead. Congress often writes laws broadly, letting subject-matter experts at administrative agencies fill in the details with regulations. Then, agency employees sometimes substitute their own policy preferences for actual statutory or regulatory language. They may also fail to appreciate that their authority is delegated from an official who answers to the president. Bernhardt gives examples of federal employees undermining the administration’s policies simply by refusing to work on a task, slow-walking it, or doing a subpar job.

Administrative agencies have further gained power through judicial deference to an agency’s own interpretation of a statute when its enforcement action is challenged. Courts essentially abdicate their role of interpreting the law, leaving citizens with little recourse against penalties or prohibitions. Both legislative and judicial powers have thus been shifted to the executive branch, where they are exercised without adequate political oversight.

Drawing on his experiences working under two administrations, Bernhardt explains how President Trump’s enabling leadership showed a path for reining in the administrative state. He calls on political leadership to turn off autopilot and take control of their agencies, and on Congress and the judiciary to assert their constitutional authority, before an unaccountable federal bureaucracy destroys the Founders’ vision of government by consent of the governed.

• Language: English
• Publisher: Encounter Books
• Release date: Oct 22, 2024
• ISBN: 9781641774123

David Bernhardt

DAVID BERNHARDT is the only person to ever be confirmed by the U.S. Senate to serve as secretary, deputy secretary, and solicitor of the Department of the Interior in its 173+-year history. The Department of the Interior is a cabinet department with an asset portfolio that exceeds $300 billion, a budget that exceeds $16 billion, and nearly 70,000 employees. Bernhardt served as the 53rdSecretary of the Interior under President Donald J. Trump. He also served for nearly eight years as a political appointee within the George W. Bush administration at Interior and as the Commissioner to the International Boundary, U.S. and Canada.  David grew up in the rural western Colorado community of Rifle and he is an avid hunter and angler. He is married to Gena Bernhardt, and they have a son, William, and a daughter, Katherine. He resides in Arlington Virginia, with his wife, daughter, a yellow Labrador retriever, and a cat.

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Cover: You Report to Me, Accountability for the Failing Administrative State by David Bernhardt

Praise for You Report to Me

As Solicitor, Deputy Secretary and Secretary of the U.S. Department of the Interior, David was a talented and diligent public administrator. His willingness to share his thoughts and experiences of driving change within the executive branch is to be embraced. They will contribute to the debate of precisely how policymakers can work to deliver better results for the American people.

—U.S. Senator Dan Sullivan

Secretary Bernhardt is one of the most astute experts in administrative, environmental, and natural resource policy I have ever worked with. I had the privilege of hosting him in rural North Dakota where he listened to landowners and farmers discuss the overreaches of the Fish and Wildlife Service. Standing in the heart of the prairie potholes, he was blunt yet constructive and everyone left the meeting better informed and hopeful some progress could be made. David’s candor in this book is a refreshing reminder of basic civics: officials elected by the public determine policy and the bureaucracy should follow their lead.

—U.S. Senator Kevin Cramer

In a Washington, D.C., filled with officeholders who leave no mark, David Bernhardt stood up—and stood out. His stewardship of American lands and heritage as President Trump’s Secretary of the Interior was marked by a drive to transform his Department on the American people’s behalf… I can’t think of anyone better placed to explore, explain, and advance the America First Agenda.

—Brooke Rollins, President and CEO of the America First Policy Institute

David Bernhardt is an effective public administrator who strove to make improvements during his tenure in the executive branch. His willingness to provide an insider’s perspective on driving change during the Trump administration, as well as lessons for future political appointees, should be welcomed.

—Matt Schlapp, Chairman of the Conservative Political Action Coalition (CPAC)

You Report to Me

Accountability for the

Failing Administrative State

David Bernhardt

© 2023 by David L. Bernhardt;

Preamble © 2024 by David L. Bernhardt;

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Encounter Books, 900 Broadway, Suite 601, New York, New York 10003.

First American edition published in 2023 by Encounter Books, an activity of Encounter for Culture and Education, Inc., a nonprofit, tax-exempt corporation.

Encounter Books website address: www.encounterbooks.com

Manufactured in the United States and printed on acid-free paper. The paper used in this publication meets the minimum requirements of ANSI/NISO Z39.48-1992 (R 1997) ( Permanence of Paper).

FIRST AMERICAN PAPERBACK EDITION

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA IS AVAILABLE

Information for this title can be found at the Library of Congress website under the following ISBN 978-1-64177-411-6 and LCCN 2024022306.

Dedication

To my wife, Gena

CONTENTS

PREAMBLE

In June of 2022, when I first submitted a draft manuscript of this book to Encounter, I was hopeful they would agree to publish it for three reasons.

First, having spent much of my career as a political appointee at the U.S. Department of the Interior, I’d hoped to provide readers with a perspective on how the federal bureaucratic swamp really worked, and to help show how power has concentrated in the career bureaucracy.

Second, I thought the book might encourage both current and future policymakers to at least consider the need to reassert control over the large federal bureaucracy before it destroys our Founders’ vision of a government based on the consent of the governed.

Finally, by contrasting how presidents George W. Bush and Donald J. Trump had managed the executive agencies, including the Department of the Interior where I’d worked, I hoped to highlight how Trump’s timely and direct approach had facilitated far greater productivity than Bush’s efforts had. Shortly after the hardcover was published, I sat down with former president Trump and told him how much I’d appreciated his personal interest in achieving good outcomes for the American people. His hunger for real results, coupled with the freedom he gave me and my predecessor to accomplish the goals he had clearly established, fostered more successes in a single term than were achievable in eight years of the George W. Bush administration.

What is stunning, at least to me, is that better outcomes are possible at all. For meaningful results to be achieved, policymakers must have the courage to lead by making decisions and accepting responsibility for them, to be held accountable under our constitutional structure whether their jobs are in the legislative, judicial, or executive branch. To date, many policymakers recognize that the public is unlikely to hold them to account if they fail. So they choose the easy path, serving as little more than placeholders and ensuring the government’s performance continues to fall short.

This is why one highlight of the feedback to this book was the communications I received from state policymakers who had shared in the challenges I’d identified, which turned out to be as relevant at the state level as in Washington. I was also pleasantly surprised by the specific actions they said they were taking to deliver better outcomes to the people of their states. This furthered my view that policymakers really can make things better, provided they’re willing to put in the effort and do their jobs.

This gave me faith that in the future, and hopefully soon, the American people will clearly convey to all levels of government that results matter. I hope this new softcover version will help you arrive at the same conclusion—and in turn give you the confidence to demand more from those who seek the privilege to represent you.

INTRODUCTION

On a cold day in December 2018, while serving as the deputy secretary at the U.S. Department of the Interior, I received a directive to report to the Oval Office to meet with the president of the United States. This was the first time I had been called to the Oval Office, and the circumstances were not ideal.

I understood that my direct supervisor at Interior, Secretary Ryan Zinke, was in the process of resigning. The Washington Post had reported that Zinke was on the verge of being fired after the department’s inspector general made a criminal referral to the Department of Justice. Zinke, on the other hand, had told me that he was going to resign and that it was entirely his own choice. Given these divergent reports, I was unsure what to expect as I headed over to the White House.

When I crossed the threshold into the Oval Office, President Trump looked up from the Resolute Desk and told me to take a seat. A kind host, he asked if I wanted a Coke. He made a few comments regarding his perspective on the current situation with Secretary Zinke, then we briefly discussed the Department of the Interior’s priorities. The president appeared interested in our national parks, deregulation, energy activities, mining, outdoor recreation, forest health, and timber management. He then asked my perspective on a few people he was considering as replacements for Zinke. As the discussion wrapped up, he explained, You’re going to be running the ship for a while. Do you have any questions?*

I cleared my throat, feeling like the backup quarterback about to be thrown into the game. I had many questions, in fact, but I settled on one: Who do I report to?

President Trump looked at me quizzically. You report to me, he said.

I know that’s what the Constitution says, I acknowledged, choosing my words carefully, but who do I actually report to?

You report to me, he repeated. He could not have been more clear. I reported directly to him and to no one else!

Walking back to Interior’s massive headquarters on C Street, I recognized that the president’s words, if true, meant that my tenure, no matter how short, would be very different from those of the two secretaries I had worked under in the George W. Bush administration. White House staff had played a major role in overseeing the cabinet then, at least at Interior. It was often a lengthy and difficult process for a cabinet secretary to get an idea or an initiative before the president. The process took even longer when the White House staff held a policy view different from that of the cabinet secretary.

I experienced President Bush’s staff-dominated agency oversight process when I worked as the counselor to the secretary and later as solicitor (chief legal officer) for the Department of the Interior. During that time, I witnessed Secretary Gale Norton working on energy development issues for months with White House staff before she was able to raise them directly with the president. A similar dynamic played out when I worked closely with Secretary Dirk Kempthorne as he wrestled with the question of whether the polar bear was either a threatened species or an endangered species under the Endangered Species Act (ESA), an issue that caused significant concern among the president’s advisors at the White House.

The U.S. Fish and Wildlife Service, after missing a legal deadline and entering into a settlement agreement in federal court, had committed to an effort to determine whether the polar bear was a threatened species under the terms of the ESA. In enacting that law in 1973, Congress defined what constitutes an endangered species or a threatened species, and then tasked the secretary of the interior with establishing by regulation if a given species falls into one of these categories on the basis of five specific factors. Before making such a determination, the secretary is required to conduct a review of the species’ status and take account of efforts made by any state or nation to protect that species. In doing so, the secretary must rely solely on the best scientific and commercial data available to him.

These legal requirements placed limitations on Secretary Kempthorne’s discretion. He was not free to adopt any policy that he or the White House might prefer, but was bound by the law that Congress enacted and by the facts before him. Because of the settlement agreement, he could not wait to develop more data before making his determination. At the same time, he recognized the concerns of the White House. Kempthorne had never had to answer to a boss in his career up to that point, and he agonized over the issue. He was not enthusiastic about making a decision that was inconsistent with the policy perspective of the president or his staff, yet he was determined to make the decision he believed was most appropriate given the law and the facts.

A wide range of entities outside the Fish and Wildlife Service—including other federal agencies, national trade associations, business interests, political leaders, and state governments—were extremely worried that listing the polar bear would trigger an avalanche of new regulations related to global warming under the umbrella of the ESA. After examining the facts and the law, Kempthorne was inclined to list the polar bear as a threatened species. His decision was met with great concern from White House staff who indicated their understanding of President Bush’s view to the contrary. After months of dialogue with lower-level White House staff, Kempthorne and I finally met with the chief of staff, Josh Bolton, who made it clear that he wanted the secretary to take ten days to consider alternatives before making a final decision.

Over the next ten days, at Kempthorne’s direction, I worked with a team of lawyers and scientists to write a draft alternative rule, accepting the best scientific and commercial data available but rendering a determination that the polar bear was neither an endangered species nor a threatened species under the law. It was a massive undertaking. The alternative rule we developed was not an approach that Kempthorne or his policy senior advisors found persuasive. At his request, I called the White House deputy chief of staff and informed him that the secretary planned to go forward with listing the polar bear as a threatened species, despite the concerns expressed by the White House staff.

The deputy chief of staff returned with a message from President Bush informing him that while the president continued to support the views of a majority of his advisors, what mattered most to him was that Secretary Kempthorne was comfortable with his own decision. It was exactly what any cabinet secretary should hope to hear from the president—a message essentially saying, Congress has tasked you with a legal responsibility to carry out the law. I put you in this position. I know you have carefully looked at the matter. Make the decision you think is right.

Relieved to hear it, Kempthorne made what he believed to be the correct decision, though many disagreed. But while the message was great, the White House process for arriving at this point was ridiculous, filled with consternation and staff conflict. Most importantly, Kempthorne appeared to have never had the chance to make his case directly to the president.

Given my experience with presidential oversight during the George W. Bush administration, I was skeptical of the likelihood that I would be communicating directly with President Trump to help him accomplish his agenda. Soon after I took the helm of the Department of the Interior on January 2, 2019, I had occasion to put this approach to the test.

A government shutdown started on December 22, 2018, while I was the deputy secretary. In anticipation of a potential shutdown, informed by Secretary Zinke’s policy direction, Interior had formulated a shutdown plan for national parks and other public lands that differed from the approach taken in 2013 by Obama administration officials, who had needlessly and inappropriately shuttered parks and even open-air monuments. The National Park Service went so far as to erect barriers around the World War II Memorial on the National Mall so that visitors couldn’t access what is an otherwise open space during the government shutdown. Members of the public were outraged by the Park Service’s actions, which resonated as petty and vindictive. Zinke wanted to avoid a similar controversy and maintain public access to the parks throughout a shutdown.

Under Zinke’s plan, the parks would be left largely accessible and staffed with law enforcement officers. The gates to the parks would remain open and no entrance fees would be collected. This plan assumed the best of the American people. It assumed that visitors to the parks would largely be responsible and would follow the basic tenet of any backcountry experience: pack it in, pack it out. While this plan would have worked well for the anticipated shortterm shutdown, this particular shutdown lasted over a month, and a few negative consequences appeared after a couple of days. Trash began to pile up in some of the parks, and some visitors misbehaved. Restrooms were either closed or not properly maintained.

The day before Christmas, I witnessed problems firsthand on the National Mall, where many visitors had bought refreshments from the commercial food trucks parked along the mall and left trash that was now overflowing the receptacles and littering the normally pristine lawn. The City of Washington was making an effort to collect some of the trash, but it hardly matched what the dedicated facility staff of the National Park Service did routinely. On Christmas Day, lacking a more sensible option, I secured a Park Service dually pickup truck and took it to the National Mall, collected loads of trash, and hauled it to a dumpster myself. As I filled bag after bag with trash, the wheels in my head were turning. I thought about the hourly facility workers for the parks who were not getting paid. I wondered if there was a way that I could get the facility and maintenance staff paid and back to work, while keeping Zinke’s general plan maintaining public access in place. It dawned on me that the Park Service had a reserve of over $250 million from recreation fees. I wondered if that money could be used to pay facilities staff and law enforcement so the parks could be kept clean and safe for visitors during the shutdown.

In previous government shutdowns, some national parks had remained open because particular states agreed to fund the National Park Service’s continued operations that were important to the state economy. Normally these transactions were instigated by local park superintendents or local park concessionaires, who approached state political leaders and asked them to fund these federal operations out of the state taxpayers’ pockets. In addition to accommodating the interest of the state, this approach also ensured that federal employees who would otherwise be furloughed kept receiving pay. During the shutdown in 2013, for example, Arizona footed the bill to keep the Grand Canyon open, and New York ponied up funds to maintain public access to the Statue of Liberty. Once again, in 2018, superintendents at national parks were trying to get the states to fund the operations, even while the National Park Service was sitting on a mountain of cash that could potentially be used for that very purpose. It seemed to me like extortion.

I examined the relevant law and concluded that the Department of the Interior could almost certainly draw from the previously collected recreation fees to pay for law enforcement, trash cleanup, and facility maintenance during the shutdown. Shortly after I had assumed leadership of the department following the New Year’s holiday, the department’s lawyers reviewed the matter, agreed with my understanding of the law, and secured approval from the White House Office of Management and Budget to modify our plan. We had a way to ensure that law enforcement and maintenance staff were paid and in place, to keep the parks accessible to the public, and to avoid the controversies of previous shutdowns, without having to shake down the states.

My decision was bound to get media attention, so I wanted to make sure that White House leadership were informed before reading about it in the press. Recalling my first conversation with the president, I picked up the phone and called his receptionist.

The White House, how may I help you? answered the president’s personal assistant.

Good morning, I said, this is Deputy Secretary Bernhardt at Interior. I’m serving as the backup quarterback at the Department of the Interior and I need to get information to the president. He told me I should call him if I needed him to know something, but I don’t necessarily need to talk to him. Perhaps you could send me to whomever I’m really supposed to talk to about items like this?

She laughed and replied, The president will call you back in a few minutes.

Sure enough, President Trump returned my call a few minutes later. I laid out the situation and told him what I intended to do. The whole process took a few minutes.

Such was my experience with President Trump throughout my tenure. He was accessible when you needed his input, his counsel, or a decision, and he was more than able to contact you whenever he had an issue he wanted to be addressed. His willingness to work and communicate with the executives he had placed in various cabinet agencies was extraordinary. He empowered the department leadership while also ensuring that information flowed directly from the agencies to him. He expected to communicate directly with me, and I was expected to communicate directly with him. As a cabinet secretary, I understood that he expected me to determine how best to execute the priorities he had asked me to focus on within the confines of the law and get to work. He was focused on outcomes and expected his department leadership to advance his policy agenda. In my opinion, he allowed competent leaders to move forward at a much quicker pace than many of his predecessors by selecting a goal, letting them get to work, and not allowing his other staff to get in their way.

President Trump’s enabling leadership avoided the massive periods of inactivity that plagued much of my prior experience in the Department of the Interior under President George W. Bush. Far more critically, Trump’s expectation that those serving in the executive branch actually report to him reflected a reality about the presidency and his view of it. The Constitution of the United States confers all the executive power of the United States on the president. Only the president has been entrusted by the American people with this power. Therefore, Trump expected that everyone in the executive branch would be working to accomplish the things he committed to the American people that he would do if elected, which he wanted done.

When Congress writes legislation and the president signs it into law, that new law almost always authorizes or directs the head of a cabinet department to carry out some new task. As the department head’s responsibilities expand, that person delegates some authority to subordinates to help fulfill the newly assigned tasks. These subordinates are then empowered to exercise this delegated authority, which the department head can withdraw at any time. Each department head serves at the pleasure of the president. Virtually everyone who serves in the executive branch reports to the president.

As the nation and the federal administrative agencies have grown, the understanding that every federal employee and every government contractor is acting by a delegation of authority from a department head who serves at the pleasure of the president has drifted out of focus. Those who exercise delegated authority often act as if the executive powers were conferred on them directly, making them unaccountable to those who

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