Before Donald Trump promised to “Make America Great Again,” he entertained millions of Americans through a weekly ritual of telling his least favorite employees, “You’re fired!”
Yet despite his pledges to “drain the swamp,” Trump won’t be able to do the same thing with most of his new workforce: the federal bureaucracy.
But he should.
The American people are paying for employees they can’t even control. Federal bureaucrats enjoy ludicrous protections that far exceed what average Americans can expect in their own jobs and thus isolate the bureaucracy from the will of the American people. To correct this, Congress should pass a law to make all federal employees serve at will — just like Americans in the private sector. If a bureaucrat underperforms, undermines policy, or is no longer needed, he should be dismissed.
Once upon a time, this was common sense. In 1820 Congress so feared a permanent bureaucracy that it required all functionaries to be reappointed every four years. American politics embraced the principle “to the victor goes the spoils,” empowering the president to choose his personnel and control the machinery of government. The spoils system’s most famous advocate was another populist rabble-rouser with a magnificent mane, also sneered at by the elites: Andrew Jackson. Jackson believed that no particular class should dominate government decade after decade, and that government jobs were readily fillable by those in the private sector. For a modern analogy: There’s no reason why a FedEx employee couldn’t replace a bad postal worker.
Much later in the 19th century, a disgruntled job seeker assassinated President James Garfield. Astoundingly, Congress responded by reducing presidential authority over choosing federal employees. Imagine if, in response to discovering that John Hinckley shot Ronald Reagan to get the attention of the actress Jodie Foster, Congress had banned movies, lest they inspire similar acts. Increasing presidential security would have been a better response than catering to the whims of lunatics. Instead, Congress planted the seeds for a permanent bureaucracy.
In the 20th century, despite skepticism from Franklin Roosevelt and early labor leaders, bureaucrats unionized and began to help elect the bosses with whom they would negotiate, further entrenching themselves into lifelong jobs paid for by taxpayers.
In the 1970s, two centuries into the American republic’s hiring and firing of employees, the Supreme Court suddenly found that bureaucrats had a property interest in their jobs and could not be fired without due process of law. The absurd result has made unelected bureaucrats unaccountable to democratic rule.
The Supreme Court found that bureaucrats had a property interest in their jobs and could not be fired without due process. The absurd result has made unelected bureaucrats unaccountable to democratic rule.
Today, excluding our military, there are over 2.7 million federal employees, who practically define “job security.” Because of this strained reading of the Constitution’s Fifth Amendment, one that surely defies the meaning intended by the Founding Fathers, bureaucrats enjoy extraordinary protections against being fired once they have completed their first year. Such an employee may remain on the job for 170 days after his superiors have decided to fire him. You might think his job then ends, but you’d be wrong. Once a bureaucrat is fired, he can appeal his termination, a process that takes an average of 243 days to complete.
In 2015, only 0.2 percent of the federal workforce was let go — that’s two out of every 1,000 employees. And of those bureaucrats fired, the vast majority were in their first year, before the protections kick in. For context, Andrew Jackson replaced 10 percent of the bureaucracy he inherited. Jack Welch would be proud.
Most federal employees are presumably competent, but not 99.8 percent. Set aside your personal experience with the Post Office and consider these examples: Years after discovering that an Environmental Protection Agency employee viewed pornography two to six hours a day at work, he remained on the payroll. A Veterans Administration employee, fired over her role in an armed robbery, was reinstated. And managers at the General Services Administration were fired over a lavish $800,000 Las Vegas conference — but were reinstated when a panel found they didn’t know and had no reason to know of the plans. Shouldn’t they have known? These are the vestiges of what supporters call the “merit system.”
But federal employees must be more than basically competent. They must be willing to execute and not slow-walk the agenda of their boss, the elected representative of the American people, and the person from whom they constitutionally derive their power: the president of the United States. Read Article II of the Constitution: All executive power is vested in the president. Bureaucrats go unmentioned.
Furthermore, evidence suggests that bureaucrats are not sympathetic to Republicans. One study found that 95 percent of presidential-campaign contributions from federal employees in 2016 went to Hillary Clinton. And this is hardly a new phenomenon: Republican administrations have been attempting to battle recalcitrant bureaucrats for decades with limited success. Presidentially appointed bosses are hamstrung, captured by their permanent peers. Richard Nixon’s White House counsel frustratingly said of the administration’s appointees, “We only see them at the White House Christmas party; they go and marry the natives.” No wonder the British television series Yes, Minister, a comical take on bureaucracy’s power over politicians, was Margaret Thatcher’s favorite show.
Perhaps the Trump administration can do better. Trump has introduced a hiring freeze, but this is an imperfect measure: A freeze stops the growth of government payrolls but does not replace bad apples. For comparison, although the Reagan administration ultimately lost the battle to cut bureaucrats, it did manage to increase the proportion of Republican civil servants from 19 percent in the Nixon administration to 50 percent by 1987.
But to actually make bureaucrats accountable, Congress needs to change the law. House Republicans have invoked the Holman Rule, which permits Congress to pass amendments to appropriations bills eliminating individual agencies or reducing a problematic bureaucrat’s salary to as little as $1. But should it really take an act of Congress to fire a single bureaucrat? Instead, give the president back his constitutional power.
A Government Business Council poll before the election revealed that 27 percent of federal employees said they would consider leaving government if Trump won. Hopefully they will be more determined to follow through than all the celebrities who promised self-exile.
— Grant Starrett was a candidate for the Republican nomination for U.S. Congress from Tennessee’s fourth district in 2016.