Monday, January 30, 2017

Ethical Critique of Government

I haven't said much about the flurry of presidential memoranda and occasional executive orders (there is a difference, despite the fact that they are constantly reported as if they were the same), in part because getting accurate information about what is going on with them has been even more difficult than usual. If there has ever been a time that has made clear the truth that a serious reasoner should take news as notification and not as information -- as a signpost or flag saying, "These things might be worth looking at", rather than as a source for drawing conclusions -- this time is it. Shortly after people started talking about the executive order on entry into the US (which, annoyingly, doesn't seem to have received an EO number yet), practically everything that I saw being said about it turned out to be wrong within a matter of hours. Nothing is more dangerous to critical thought under such circumstances than relying on rumor rather than on evidence actually in possession.

When evaluating government actions ethically, there are basically three layers that need to be kept distinct and yet which all need to be considered. The first layer is the internal ethics of government operations, the ethics that must be maintained for it to function properly in the first place. This is what usually gets called 'government ethics' -- it deals with impartiality, conflict of interest, transparency, and so forth, and, as I've noted before, the first and most basic principle is that all actions of an agency of government must have an appropriate and specific ground of authority. This kind of ethics can get very tedious, and it only takes one so far, but it is the fundamental defense against government corruption. When violation of principles at this level becomes widespread, the cancer is sometimes untreatable, because all the mechanisms for treating it are themselves becoming compromised; a government that at least upholds these principles can be brought back to health, whatever the politicians do.

To give an example of what one must not do, take Mark Alfano's recommendations. He says people should save alt- and rogue- government Twitter handles on the following grounds:

Here is why you need to follow them: the Trump administration has issued gag orders to many government agencies that are meant to supply citizens with the truth. Officially, they are now meant to clear everything they say to media, on social media, etc. with the administration.


This is utterly absurd in a number of ways.

(1) The Twitter handles in question are almost certainly fake and very certainly unverifiable.

(2) This is in fact normal; it is standard transition protocol for government agencies to restrict non-essential communications where the new administration has not established or reaffirmed policy on communication. Moreover, all government agencies always have to clear what they say to media, on social media, with the administration, either directly or by complying with an administration policy. A government agency in the executive branch cannot do anything except insofar as it is required to meet statutory ends and is in compliance with guidelines for means deriving from the Office of the President. Again, the basic principle is that government action must be justified by a proper ground of authority.

The rationale here is straightforward: government agencies in the executive branch are basically proxies of the Office of the President, formed by, and operating in accordance with, Congressional statute. They have no legitimate existence outside this. A civil service in which operation outside these bounds is common is a civil service that is corrupt and operating inconsistently with its very reason for existence.

(3) As noted above, the Twitter handles are almost certainly fake; no serious civil servant would be likely to indulge in such an action, because any such action is inconsistent with the civil service itself. It is illegal -- and immoral, for obvious ethical reasons -- to represent yourself as a government agency when you do not have the authority to do so, and civil servants are bound by oath to uphold the Constitution and the law, and thus to recognize that all executive authority is invested in the Office of the President, and thus to comply with anything that the President sees fit to impose, as long as it is consistent with the Constitution and the law. A civil service that does not do this is self-subverting and destroys the entire ethical structure of the organization.

Alfano's argument, seeing a stark contrast between "resistance" and "obedience", is essentially that somehow government agencies -- and thus civil servants in them -- are independent of Constitutional authority. The civil service is the primary, although not the only, bulwark against the corruption of the government itself; it is not a panacea, but maintaining its ethical integrity is one of the most important things if you want to place limits on how far corruption can go. Alfano, however, is treating as ethically acceptable the violation of the most basic principles sustaining that ethical integrity. This is absurd, though; if you see a crack in the dam, you don't help the situation by blowing extra holes in it.

Ironically, despite Alfano's attempt to suggest otherwise, this is not something that has been done by the Trump administration so far. Very notably, and whatever else one might say, thus far admirably, every action has been explicitly linked to a specific and appropriate ground of authority -- in particular, already existing statutory law or Obama administration precedent. Not all of the actions may survive closer scrutiny -- the laws or precedents themselves might not turn out to be acceptable, or the particular extension might have particular problems not implied simply by the laws or precedents themselves -- but nothing has been done in violation of the internal ethics of government operation. For instance, the executive order on entry into the US is entirely legal, because Congress has given the President an extraordinary amount of authority to make decisions on immigration. There are, to be sure, questions about particular actions of U.S. Customs and Border Protection (in their manner of complying are they also complying with other statutory and constitutional obligations?). There are also signs that the order may have been pushed through without time for a thorough review by the Office of Legal Counsel beforehand (which would violate no requirement but is certainly unwise) and that the implementation was flawed due to a failure to properly prepare the relevant agencies.

The latter is a serious issue that is a common problem with executive orders. People tend to think that when a law is passed, or an executive order is assigned, that it is somehow already in effect as if by magic; but in reality it has to propagate through an immense government machinery with an immense amount of inertia, filled with ordinary people who have to figure out how they are supposed to put it into effect. Sudden turns of policy, as this certainly was, are recipes for grinding gears and broken parts and complete breakdowns at crucial points. Unfortunately, this is very common with executive orders. It happens with laws, as well, but there are several buffers reducing the problem there, including the Office of the President itself, which is able to take the pressure off of the agencies by making decisions as to the best way to implement the law. Executive orders, all too often, make the false assumption that everyone down the line can make the right call on how to comply.

Whatever may be said, however, it is clearly illegitimate to try to save ethics in government by subverting the means for government to be ethical in its operations.

But all of this is only at the first level of ethics of governance. The broader, and more difficult, and yet more important level is what might be called political ethics, and it concerns ends as much as means. The handling of legal permanent residents -- green card holders -- obviously raised some serious problems. Strictly speaking, since they are not citizens, they do not have the same presumptions in their favor as citizens, but in practice Americans expect that legal permanent residents will be treated well. Good treatment of legal permanent residents is a protection for citizens. And this seems clearly to have been operative here. In extending the order to legal permanent residents, the administration made the same error that has occasionally been made when governments attempt to make it difficult for people disagreeing with government policy to have a livelihood: often people, even in agreement with the general policy, don't look at this and say, "Justice is being done," they look at it and say, "Just a step or two more and they could do the same to me." Complying with a rudimentary fairness based on its citizenry's long-term foreseeable self-interest is a low bar for a government to reach, but it is sometimes not reached, as seems to have been the case here. People have different views about how to handle immigration and reception of refugees; but it's a standard expectation across very different views that you should try to treat people fairly, whatever you end up doing, and nobody regards the government springing things on people suddenly as a fair form of governance in any other area of life.

But all of this is in some sense outside the major portion of the dispute, which is about the ethical question of whether the President's power should extend so far in the first place. What we are getting with President Trump is not Trump seizing power for the Presidency; it is Trump using power the Presidency has had, often for a long time. This is unfortunately, I think, lost in much of the 'resistance' talk among opponents of the current administration. When someone is 'resisting', as a matter of ethics it matters quite considerable what, precisely, is being resisted; and if you say that you are resisting Trump, you have in some sense already lost the path. Resisting Trump is a personal animus; resisting the Trump administration a political obstruction; but if your resistance is really grounded in ethical considerations, what you are resisting has to be ethical, and not subordinate the ethical to something else. An ethically grounded resistance is one that resists not the fact that Trump is doing something but that anyone in the Office of the President can do it at all. And the reasonable approach to such problems is to work to set in place statutes that make it so no one can.

That's only two layers. The third, and most important, is social. If we may allow for some oversimplification, the first layer is primarily about the means of government; the second layer is about the appropriate ends of government action and the fit of means to those ends; but the third layer is about how we as citizens and human beings relate to government, and how it is related to us. The most fundamental ethical critique of government is self-critique, and the most fundamental rebuke of corruption in government is incorrupt behavior in its citizens. Every ethical problem in government that is not simply a case of confusion or individual poor judgment is an outgrowth of a broader ethical problem in society; if society had certain norms in place, and upheld them, that particular ethical problem would never have arisen at all. A large-scale ethical problem in government always reflects some failing or defect in the combined actions by which its citizenry create, maintain, and develop common good; the corruption is always rooted more deeply than just government operations or politics. And such problems are always difficult to uproot, because doing so requires working with your fellow citizens to live a better way, which is something that occurs well upstream of any government actions. Perhaps that sounds sappy, but the fact of the matter is, if ethical critique does not ultimately reach this point, it is incomplete, and you are only running around treating symptoms of a much larger disease.

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