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Small Strikes Against the Administrative State

eye on the news

Small Strikes Against the Administrative State

President Trump takes some incremental steps to tame a massive federal bureaucracy. June 6, 2018
Politics and law

The 2016 election shocked voters, political commentators, and policymakers, but the administrative state—the vast network of agencies and bureaucratic personnel that operates largely unchecked, making policy decisions that affect millions of Americans— chugged along with uninterrupted purpose. A recent, low-profile move by the Trump administration could begin untangling some of it, though. Last week, Trump signed a trio of executive orders that would streamline the Byzantine dismissal procedures for federal employees who don’t perform in their jobs. The orders also rein in the immense power of federal-employee unions by curtailing the practice of “union time,” which forces taxpayers to pay even for the time public employees spend on union activities, and revise collective bargaining rules.

Not surprisingly, the moves were greeted with hostility in some quarters. J. David Cox, president of the American Federation of Government Employees (AFGE), the largest federal-workers’ union, called the executive orders “a denial of democracy.” He’s got it backwards: the professional civil service today numbers 2.8 million bureaucrats, many wielding the kind of rulemaking power that the Founders granted only to the elected members of Congress. These civil “servants” are neither universally competent nor nonpartisan, and, protected by a century’s worth of job protections, they keep their positions, no matter who American voters put in the Oval Office.

The government doesn’t even consider incompetence grounds for dismissal. It frequently takes a year or more to fire an employee, even for criminal acts. The system allows employees to defend themselves in proceedings that resemble civil trials. So many federal employees were watching pornography during work hours that Congress had to carve out an exemption to the civil-service laws so that violators could be fired. Even so, only 0.3 percent of the federal workforce was dismissed in 2016, including through budget layoffs, a small fraction of the dismissal rate in the private sector.

Inefficiency and incompetence are only the beginning; the deeper constitutional problem with the modern civil service lies in its partisanship and lack of accountability. Defenders of the status quo argue that the civil service shouldn’t be “politicized,” but it’s hard to imagine a more politically biased institution, outside of university faculty lounges. During the last election, 95 percent of candidate donations from federal employees went to Hillary Clinton. In the State Department, it was 99 percent. Few IRS employees objected to Lois Lerner’s use of the agency to target political opponents under the Obama administration. Career EPA officials launched a fight against President Trump’s appointee to run the agency. Hundreds of lower-level bureaucrats gathered to learn how to obstruct Trump’s policy agenda. And that’s without mentioning the current fight between the president and his Department of Justice and FBI.

It’s fair to call civilian government service the wing of the Democratic Party that doesn’t have to worry about running for election. There’s a reason that incoming Republican administrations talk of “landing teams,” as though taking control of executive agencies were akin to invading Omaha Beach. Republican administrations spend time and political capital fighting their own employees, who oppose conservative policies. 

More than a century of job protections for the civil service has not given us the professionalized, nonpartisan, efficient administration of government that proponents in the Progressive Era envisioned. The older, Andrew Jackson-created spoils system had its corruptions, but the “cure,” in the form of a now millions-strong class of professional bureaucrats, has been worse than the disease. Increasingly, the expansive and powerful administrative state answers to no one.

While many on the right have sounded the alarm about the administrative state, few have focused on the importance of personnel to a president’s ability to exercise his duties. The battle represents nothing less than restoring small-r republican governance. While Trump’s executive orders offer an incremental approach to reform—the task of more substantially changing civil-service laws falls to Congress—they indicate an outsider administration’s willingness to challenge long-established norms regarding federal employees. If Trump can pressure Congress to pass revisions to civil-service protections, he will not be working against democracy, as his critics claim. He will, rather, be fulfilling his inaugural promise to begin returning control of the government to the people.

Photo: BrianAJackson/iStock

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