David Bernhardt is the author of You Report to Me: Accountability for the Failing Administrative State. He is a former Secretary of the Interior, and currently serves as an advisory board member at Advancing American Freedom and Chairman of the America First Policy Institute's Center for American Freedom.
Federal Newswire:
After serving in the Bush Administration, what made you decide to return to government service under the Trump Administration?
David Bernhardt:
President Trump did a couple things during the campaign in 2016 that I found really interesting. He laid out a vision of energy dominance. At the same time, he highlighted a serious interest in being a conservation steward, highlighted the opportunities in recreation and hunting and fishing, and really prioritized both of those values, which I thought was great for a Republican to do.
Then… he gave a series of speeches about energy. His decisions in the campaign assured that when we walked in for the transition it was going to be quite consequential.
Federal Newswire:
We have been reporting on the overwhelming amount of land that the federal government owns. How does this ownership impact state and local governance?
David Bernhardt:
To put this in perspective, the Department of the Interior by itself manages one out of every five acres of land in the United States. Obviously, that one in five acres is not distributed proportionally.
There are some states along the East Coast and Eastern seaboard states that have very little federal land. They have some parks, battlefields, and other things, but generally the farther West you go, the larger swaths and larger percentages of land within states are managed by the federal government.
That affects a number of things. It affects the decisions that are made on that land in terms of who's deciding. Ultimately those decisions are the responsibility of Congress through the property clause of the Constitution. The Congress decides, is this a park, a fish and wildlife refuge, multiple use land, or forest service land?
As a result of that, efforts to acquire more federal land means that there's a consequence to counties, communities, and the private sector when that land moves potentially from private hands to federal hands. That can influence future economic development decisions and future taxation choices. All of those things have a consequence. As you're in the government and you're acquiring land, those are things that I've always thought need to be well-thought-out and be carefully considered.
As a matter of fact, one of the first things I set as a policy was that for an acquisition to be made of private land, you needed the support of the county and the Governor. There was a lot of consternation by those who would rather just see the federal government make a decision. That was one of the first things the Biden administration and Interior got rid of.
But I did that because there are a lot of communities, particularly in the East, that desperately want more public land access, more public land opportunities. They would be supportive of efforts to expand the federal land management regime.
But there are also communities and counties that are over 90% owned by the federal government, and that has a tremendous impact on their ability to influence their destiny if you're taking land off the table for them in the future.
Federal Newswire:
What do you think about the concept of having a no net-loss of private lands, where for every acre of land acquired the government would have to return an acre to private ownership somewhere else?
David Bernhardt:
I've seen that idea at different times, and I think that and similar ideas have merit. My personal view is that the local government's views should be very important.
If Congress makes a decision to spend money on acquiring land, my view is that there are plenty of places that would like to have land acquired. Where I live in Northern Virginia, there's a great benefit to having people have access to public land.
I grew up in Western Colorado. It took me two minutes to be on public land, and for me as a person who is not wealthy, as soon as I was there, I essentially “owned” that land. I could be on it, hunt, fish, it was accessible to me.
If people in a particular jurisdiction really want it and Congress wants to fund it, I'm not opposed to the idea in total. What I am opposed to is that an outside entity that is unaccountable is not considering the views of the local community and what they want their destiny to be.
Federal Newswire:
What are your thoughts on the National Park Service starting to make people pay for access when they didn’t have to before?
David Bernhardt:
There are a couple theories on that that I think are really important. For enhanced recreational opportunities, the concept of the user pays has validity. The question becomes when you're paying for something that's not an enhanced recreational opportunity, or that these are things that are just used to make it difficult to enjoy our public lands.
There are agencies that prefer people actually not visit these facilities.
I'll tell you that during COVID, I was working very hard with our best scientists and public health officers to find ways to ensure access to our public lands. We might [have been] closing movie theaters and closing visitor centers, but [we were also] trying to keep public lands generally accessible.
I had a park make a proposal that they would close the gates of the park, but issue video cameras to park employees and they would literally take videos of the park and make them publicly accessible as a solution. I was like, “that's not a plan that's going to fly.”
These are our public lands, and they need to be accessible to everybody.
Federal Newswire:
What internal pushback did you experience to the idea of moving the Department of Interior headquarters out West?
David Bernhardt:
First off, I think it's important to recognize that there are a ton of great public servants. As a matter of fact, my wife is a member of the civil service, and I would be in big trouble if I didn't highlight that.
There's always been an element of resistance. When I first started with [Interior Secretary 2001-06] Gail Norton, one of my first matters was a water rights case related to the National Park Service. I went down and met with the National Park Service.
[As] a young lawyer [at the time], I go in, and have an idea of what we need to do and have my understanding of the law, the facts, and the Secretary's views. I lay out what I think our next steps should be and one of the senior executives in the Park Service says to me, "Good luck with that, kid."
I thought, well, that's not the way the organizational chart looks, so I went up to my office and I sat there for a couple hours thinking, okay, what do I actually tell the Secretary?
She's a wonderful person, but she's probably not going to react well to me saying, "Hey, I'm the new guy, and here's what they said." So I had to think that through and ultimately figured out a way to work through that issue. That was in 2001.
My book, You Report to Me, has a whole series of vignettes about experiences of other appointees in the Trump administration with the bureaucracy. The reason those vignettes are in there is because, to me, they were really different than even what I experienced in 2001.
In 2017, there were multiple instances–and these are highlighted in the book–where the Administration was promoting a policy and there's not only, "Good luck with that kid," there's active pushback. My concern with that is very fundamental.
There are about 2.2 million civil servants, and every time there's an election, there's a change in about 3,500 positions. If you have a scenario where a President is elected with a change of vision and a changed message, as Trump’s certainly was, and the administrative state simply ignores the direction of the leadership from a policy perspective, my concern is… what it means to the people who believe that they voted for change and they don't see it.
I think that's a fundamental threat to our system of governance if that were to continue. And so the title of the book, You Report to Me, is really about a vignette that I had with the President where he told me I reported to him. But it also stands for the principle that everybody in government–the elected officials, career officials, and political appointees–ultimately report to the people.
The actions that they take need to be informed by the law, the facts, and the policy preferences of whoever's elected, whether the person I voted for won or lost. At the end of the day, elections must have consequences.
Federal Newswire:
The Chevron doctrine is the idea that agencies are given weight before the courts in terms of how they interpret laws, and the Hour doctrine relates to how the agencies interpret their own regulations. What are your views on these doctrines?
David Bernhardt:
I think fundamentally there are three things, and these are really what I highlight in the book, You Report to Me.
Congress's ability to delegate authority through very vague and broadly crafted laws has enabled agencies to move in very significantly different directions than Congress thought.
Once courts moved away from a requirement that the agencies [must] persuade the courts–the executive agencies were then more and more emboldened to push farther and farther on issues. What agencies do is, the senior management delegates authority down, and then has very little accountability.
What you have happen is a very junior official can end up taking a very extraordinary position that the Department of Justice will defend. What that has done is really push the envelope on the power of the executive branch. In doing that, I think one easy thing to do is for the policymakers and agencies to recognize what their job is.
In my case, when I was the Secretary of the Interior, the job was to supervise all functions of the department. Supervision is an active word, it's not passive. It's not a figurehead, it's not to show up at a party and be the reception person. It's an active term, “supervise.” It also conveys an element of accountability. If something goes wrong in that department, you should own all of the responsibility, and policymakers have often wanted to push decisions away.
When I was the solicitor, there were some policymakers that loved nothing better than if I could come up with an answer to a problem that said they had no discretion. They wanted to be told they had no discretion because then they could say, "Well, David put me in this box."
As policymakers, we often say, "Well, that was made by Joe Smith in Tupelo, Mississippi, and it's really out of my hands."
Those are convenient ways to not take accountability. But when they go on for decades, they also lead to an impression that the people who aren't in charge are in charge, and that's inappropriate.
Federal Newswire:
President Trump issued an executive order on regulatory transparency and accountability. President Biden rescinded that order. Why is transparency and accountability vital?
David Bernhardt:
At Interior, we implemented policies very aggressively to be transparent. At the end of the day–and I highlight this in the book–there are instances where employees won't follow the law or regulations, and instances where maybe they'll hide what their policy actually is.
The citizenry has a right to know what's happening. They should have the ability to see for themselves what standards are going to be used, because otherwise what we have is an arbitrary form of government.
Ultimately, it's very easy to say, “Well, all you have to do is take me to court.” But that's not really viable for many people.
At the end of the day, arbitrary government leads to a lack of trust in government. That is where I fear we're headed if we don't begin to address some of these issues.
Federal Newswire:
How do folks find out more about the work that you're doing?
David Bernhardt:
Go to American First Policy Institute. There's great stuff there and if you're interested in the book, go to www.youreporttome.com.
