- - Tuesday, March 22, 2022

Former President Donald Trump recently called for letting presidents fire any federal employee. The media went into hysterics, calling the idea a return to the spoils system. These critics are misinformed. The reformers who created the civil service believed federal employees should serve at will. Removal restrictions came much later. And they have proven highly destructive, sheltering poor performers while enabling career bureaucrats to undermine the president. Eliminating federal removal restrictions would strengthen the merit service.

Recently in South Carolina, Mr. Trump said that America should “pass critical reforms making every executive-branch employee fireable by the president of the United States.” Media critics reacted like Dracula to a garlic lover’s pizza. They promptly warned this would effectively repeal the Pendleton Act of 1883, which created America’s professional civil service.

Mr. Trump has a better grasp of the civil service’s history than his critics. The 19th-century civil service reformers sought to stop the politicians from using government jobs to reward supporters. But they also opposed removal restrictions. They wanted to create a merit service. As the president of the Civil Service Reform put it, removal restrictions would “seal up incompetency, negligence, insubordination, insolence, and every other mischief in the service.” So, the Pendleton Act prevented patronage-based hiring while leaving the removal process almost entirely untouched.

Federal employees did not get the right to appeal removals until the 1940s. During World War II, Congress gave veterans federal hiring preferences. Congress also prevented agencies from circumventing the hiring preferences by allowing veterans — and only veterans — to appeal removals to the Civil Service Commission. But by the 1960s, veterans made up a large portion of the federal workforce. It came to seem arbitrary that some federal employees could appeal dismissals, and others could not. So in 1962, President John F. Kennedy issued an executive order allowing nonveterans to appeal dismissals too. Congress subsequently codified removal appeals into law in the 1970s. Removal protections are a modern invention.

The past half-century has demonstrated the wisdom of the civil service reformers’ original vision. Current procedures make removing federal employees prohibitively difficult. It currently takes six months to a year to remove a poor performer — followed by appeals. Surveys show that only a quarter of federal supervisors are confident they could remove a poor performer. Not surprisingly, they rarely try. Each year agencies remove fewer than 4,000 out of 1.6 million tenured federal employees. The system entrenches poor performers in the federal bureaucracy.

Federal employees themselves are fed up with this. In 2018 Mr. Trump signed an executive order making removing poor performers easier (President Biden has since rescinded it). Federal employees supported the order by a two-to-one margin.

Removal restrictions also allow the bureaucracy to pursue its own agenda. Because dismissing a federal employee is almost impossible, many career bureaucrats feel free to defy elected officials. This happened so widely during the Trump administration that it made national news. A new report documents that resistance was even worse behind the scenes. For example, career employees in the Department of Justice’s Civil Rights Division refused to sue Yale University for discriminating against Asian Americans. They knew that a victory would undermine racial preferences in higher education, and they supported racial preferences. So, they refused to assist with the litigation.

Career lawyers at the National Labor Relations Board only briefed political appointees on precedents that supported their preferred case outcomes, omitting contrary precedents. Political appointees had to do their own legal research to understand both sides.

When Mr. Trump issued a federal hiring freeze shortly after taking office, career employees in the Department of Health and Human Services crossed out the starting dates on new hires’ paperwork with sharpie pens. They instead wrote in Jan. 19, 2017 — the day before Trump’s inauguration.

If the president cannot control the executive branch, the government is not accountable to the people. And removal restrictions neuter the president’s ability to control the federal bureaucracy.

Under the Pendleton Act, the president could fire any executive branch employee. Mr. Trump’s proposal would simply return to the original vision for the civil service.

• James Sherk is a nationally recognized expert on civil service and labor policy and serves as director of the Center for American Freedom at the America First Policy Institute. From 2017 to 2021, he served as special assistant to the president on the White House Domestic Policy Council.

Copyright © 2023 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.

Click to Read More and View Comments

Click to Hide