The Civil Service System is Unconstitutional
By: Philip K. Howard
President Trump wants to overhaul the civil service. Even ardent liberals agree it needs to be rebuilt, but past efforts at reform have withered in Congress under union power and public indifference. There’s a more direct path: Mr. Trump can repudiate civil service in its current form as a violation of the Constitution’s mandate that “the executive power shall be vested in a President.”
Executive power is toothless without practical authority over personnel. “If any power whatsoever is in its nature executive,” James Madison once observed, “it is the power of appointing, overseeing, and controlling those who execute the laws.” Taking away the president’s power over executive branch employees is synonymous with removing his executive power altogether. Yet this is exactly the case today.
Because of civil-service laws passed by Congress many years ago, the president has direct authority over a mere 2% of the federal workforce.
The question is whether those laws are constitutional. Does Congress have the power to tell the president that he cannot terminate inept or insubordinate employees? The answer, I believe, is self-evident. A determined president could replace the civil-service system on his own, by executive order. The move would doubtless be challenged in court, but it would likely be upheld, especially if the new framework advances legitimate goals, honors principles of neutral hiring and is designed to foster a culture of excellence.
Although civil service was once thought the cure for corruption, it has become a cancer, killing good government. Accountability is nonexistent: More civil servants die on the job than are terminated or demoted. The culture this has created within many agencies is awful. The accountability vacuum removes the oxygen of purpose and replaces it with stale resignation.
“When a single individual free rides,” a 2006 study of organizational behavior found, there is a “precipitous decline in teammate contributions.” Human initiative is replaced by a “suffocating bureaucracy,” as the National Commission on the Public Service — led by Paul Volcker in 1989 and again in 2003 — found.
Instead of promoting pride in public service, the commission reported, good workers resent “the protections provided to those poor performers among them who impede their own work and drag down the reputation of all government workers.”
Overhauling the civil service must be the cornerstone of any serious effort to fix broken government. Regulatory reform is otherwise impossible. What replaces red tape? People. Scrapping mindless rules requires empowering humans to take responsibility for results. Real choices — say, to focus environmental review on material impacts — can be practical again. Thick rule books could be replaced by pamphlets. But no one wants to give officials flexibility to use common sense unless they also can be held accountable when they are incompetent or mean-spirited.
Democracy requires an unbroken chain of accountability. Why don’t problems get fixed when a new president rolls into town? One reason is that civil servants keep doing things the way they always have. There’s an acronym for how they deal with incoming administrations: Webehwyg (pronounced WE-be-wig) — “We’ll be here when you’re gone.”
A historical halo hovers over the civil service because it replaced the spoils system, in which public jobs were rewarded to political hacks. As originally designed in the Pendleton Act of 1883, civil service was a system of neutral hiring. Reform leader George William Curtis believed that “if the front door were properly tended, the back door would take care of itself.” Originally civil service did not diminish the president’s power to manage or fire federal employees (other than barring demands for campaign contributions), because that was considered unconstitutional.
The slow dissipation of presidential power over subsequent decades is a story rich with irony. Designed to avoid capture by special interests, the civil service became a special interest of its own. First, public employees got Congress to legislate modest protections against termination. Then JFK, as payback for their support, signed an executive order allowing public unions to collectively bargain. The Supreme Court held that these legal protections made public jobs a property right protected by the Constitution’s Due Process Clause. Then Congress enshrined these protections in statute.
We’ve come full circle: Instead of guarding against public jobs as political property, civil service has become a property right of the employees themselves. Federal workers answer to no one.
But this triumph of public unions turns out to be their weakness. By removing one of the president’s main constitutional prerogatives, it has opened the door for him to assert his rights by executive order. Public unions, we now know after a half century of experience, do not advance the public good. They have succeeded mainly in destroying the concept of merit in the merit system.
An executive order breaking Congress’s personnel shackles would of course result in a constitutional challenge, which ultimately would be resolved by the Supreme Court. That’s why it is critical for Mr. Trump to take the high road and ensure that the new civil-service framework is fair-minded and respectful. Templates already exist with nonpartisan groups such as the Partnership for Public Service.
Rebuilding a responsive government culture is not as difficult as you might think. What’s needed isn’t a mass purge, but the prospect of accountability. This would inspire confidence in workers that others will do their share. As recently as the 1950s, federal officials were able to make public choices that were practical and timely, and three-quarters of Americans trusted government.
America needs to remake Washington for the 21st century. The only path forward is to return to constitutional first principles and, by executive order, create a civil-service system that actually serves the American people.
This article originally appeared in the Wall Street Journal on Jan. 30, 2017. A longer version of this article appears in The American Interest.