In 1881, a president was assassinated over the future of the civil service. James Garfield, who believed in civil service reform, was shot by a syphilitic maniac, Charles Giteau, who was enraged at not being given a government job. The debate that partially led to the assassination in some way mirrors our current debates over the nature of the executive branch, and its resolution offers some guidelines we could do well to follow.
Garfield had opposed what was called the “spoils system” (from Andrew Jackson’s claim, “to the victor belong the spoils”) where supporters, friends, and relatives of the electoral victor were rewarded with government jobs. Giteau delusionally thought he was deserving of such reward, and shot Garfield with at least a hope of Vice President Chester A. Arthur returning to the system. Arthur had been a beneficiary of the spoils system, and his place on the ticket was a sop to the “stalwarts” who supported it (Garfield’s supporters were called “half-breeds.” It is a shame our political labels are not so colorful today.)
Yet Arthur, the accidental president, proved not to be quite so stalwart. Garfield took many weeks to die, and Arthur filled those weeks with soul-searching and remorse, spurred on by the beginnings of a long, one-sided correspondence with a young woman from New York, Julia Sand. Miss Sand urged Arthur to take up Garfield’s aim of civil service reform, and that is the path he chose, working with Congress to pass the Pendleton Act, which ensured merit-based appointments. The fascinating story of Arthur and Sand is told in a new documentary from the Competitive Enterprise Institute, Dear Mr. President.
At issue today, however, is just how responsive the civil service should be to the president. It is generally accepted that the federal civil service is inefficient and that bad performers are almost impossible to fire. Moreover, Republicans have been complaining for decades that career civil servants are often obstructive to political appointees’ attempts to introduce change. This has led many to allege the existence of a “deep state,” an unelected branch of government that pursues its own ends regardless of the results of elections, and which actively seeks to undermine the efforts or even legitimacy of actions performed by political appointees.
Even if the “deep state” does not exist in the way its critics allege, there is clearly something wrong with the way the career civil service operates, as these complaints are only ever one way (Democrat political appointees generally seem to get their way.) Moreover, there are genuine questions as to the constitutionality of the career civil service. The President is supposed to have the power to appoint such officials; the appropriate part of the appointments clause of the Constitution (Article II, Section 2, Clause 2) reads, “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” This was clearly envisaged to allow the President to staff the executive branch as he sees fit.
It follows that arrangements that restrict this power, particularly when it comes to firing officials, raise constitutional problems. We are seeing this play out in the job security of commissioners and other officers of so-called independent agencies right now, where the President has fired such officers to whom Congress gave a degree of protection by law. Given the precedents of Free Enterprise Fund and Seila Law, it is likely that the Supreme Court will uphold these firings.
However, the biggest obstacle to the President firing obstructive inferior officers is generally not a law protecting the positions specifically but the existence of union contracts, negotiated between government as employer and the employee unions, governed by the National Labor Relations Act. This has been the case since President John F. Kennedy issued an executive order in 1962 that allowed federal employees to join labor unions. Since then, government unions have not just rewarded their employees with job security and higher than average pay, but have become an important lobbying force, driving the move towards bigger government, which means more federal employees and therefore more union dues.
However, before Kennedy’s order it was by no means uncontroversial to assert that collective bargaining had a place in federal employment. No less a figure than Franklin D. Roosevelt wrote in 1937 to the President of the unofficial union, the National Federation of Federal Employees, saying,
All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress.
FDR was correct. Binding the government as employer by means of union contracts also binds the government as sovereign, which is a problem for representative democratic government.
The first step, therefore, in reinstituting legitimate presidential authority over the staffing of the executive branch, must be to cancel collective bargaining arrangements with government unions. President Trump has already done this with unions at agencies that deal with national security, using powers under the Civil Service Reform Act. The President cited various forms of contract-related obstructionism in announcing the order, including the filing of grievances and blocking the implementation of the VA Accountability Act, thereby directly inconveniencing the President’s constitutional responsibility to faithfully execute the laws.
Congress needs to back up the President by banning collective bargaining in the federal government entirely.
However, this is just the first step. The next step, as recommended by Judge Glock and Renu Mukherjee of the Manhattan Institute, should be to make federal employment explicitly at-will. President Trump’s Schedule Policy/Career does this for certain policymaking positions, but that only represents a small fraction of the federal workforce. Glock and Mukherjee examine civil service reforms at the state level that have introduced at-will employment. They find that, “States that have created at-will employment and kept employee grievances inside departments have seen improved management and limited evidence of politicization or patronage.”
That last point is crucial, for it speaks to the spirit that motivated Sand, Arthur, and the Pendleton Act. To allow legitimate Presidential discretion over the staffing of offices of state instead to return to the spoils system would get us nowhere. There must be a role for permanent career civil servants, not least to ensure continuity and needed expertise for each new administration. While at-will employment could theoretically lead to that situation, the states show that in practice it has not, and that state administrations of both parties have reaped the benefits. What it does allow for is the firing of poor performers, thereby lifting the overall competence level of the civil service.
Moreover, civil servants are also protected by the First Amendment. As Glock and Mukherjee say, “Supreme Court jurisprudence from Elrod v. Burns (1976) onward states that the First Amendment forbids governments from making personnel decisions based on patronage or party membership unless personnel are in policymaking positions.” This should ensure that the spirit of Pendleton lives on.
Yet even without union contracts and protected employment status, some might fear that the spirit of the deep state might encourage some to obstruct the President’s will, while others might worry that the President or his deputies might ask the civil servant to do something illegal. For this, I suggest that something akin to the Armstrong Memorandum, that governed my actions when I was a UK civil servant, should be written into the terms and conditions of federal employment.
Briefly, the Armstrong Memorandum said that the duty of the civil servant is to the political representative of the government of the day and that should the civil servant feel unable to carry out instructions, they were expected to resign. An appeals process was in place for those who felt that they were being asked to do something illegal. As the memorandum says, “When, having been given all the relevant information and advice, the Minister has taken a decision, it is the duty of civil servants loyally to carry out that decision with precisely the same energy and good will, whether they agree with it or not.”
Finally, one aspect of the Pendleton Act that could do with revival is the return of competitive examination for civil service positions. Such examinations ensure that the civil service is staffed with people with cognitive abilities to understand complex situations and reach difficult decisions. They were, however, the target of the idea that testing is somehow racist that infested the 1970s and so fell victim to the Carter administration’s discretion following the Civil Service Reform Act. As entrepreneur Joe Lonsdale says, it was merit that enabled NASA to get to the moon, build the Pentagon quickly, and create the atomic bomb. Reinstituting merit as a central element of the civil service will not only make our government efficient, it will also return us to the spirit that motivated Arthur to reform the executive so thoroughly after the national tragedy of Garfield’s death.