To ‘drain the swamp,’ Trump should look to states’ civil service reform

President Donald Trump was known for his liberal use of the phrase “you’re fired” on his TV show “The Apprentice.” However, he will find it considerably more difficult to manage a federal bureaucracy in which the president and his political appointees are often powerless to control the career civil servants who staff the executive branch.

The new president has already had a number of high-profile battles with the rank-and-file, in agencies like the EPA and the National Park Service. Trump, and the movement that swept him into office, would do well to consider the example of our seventh president, Andrew Jackson, and the pathway laid out by innovative state policy, in reforming civil service in America.

{mosads}The problem of agencies unresponsive to political will and elected representatives far predates the Trump phenomenon. Civil service employees first became a protected class under the Pendleton Civil Service Reform Act, passed over a century ago in the 1880s.

Under the earlier civil service system, federal employees could be more easily hired and fired at will. As Jarrett Stepman noted in The Daily Signal, bureaucrats were actually limited to terms of four years in the early 19th century. President Jackson argued for a general “rotation in office” for civil servants in his first address to Congress, and warned that America’s republican ideals would be put at risk if we allowed them to treat office as a “species of property.”

The Pendleton Act was a well-intentioned attempt to curb the “spoils system” that many accused the Jacksonian system of creating. But the result has been to increase in the power of the bureaucracy, and to diminish the power of Congress and the President to staff agencies or make needed changes to how they operate.

Trump clashes with resistant civil servants: https://t.co/YgVoR2xrCy pic.twitter.com/Rlu2Qrx3m3

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While the Jacksonian system may not have been perfect, the cure has turned out to be worse than the disease. Because of a provision in the Pendleton Act that allows presidents to expand the Act’s protections “from time to time,” locking in their own set of appointees, in modern times more than 90 percent of the federal civilian workforce has been given permanent protection from their elected bosses.

The civil service reforms over the past century have created a monster; a class of permanent, unelected bureaucrats given massive power to intrude into the affairs of the American people.

While there have been a number of attempts to reintroduce political control over the executive agencies, and some of them even hold promise, none gets to the root of the bureaucracy’s fundamental unaccountability to the winds of democratic change.

Congress can use the Congressional Review Act to overrule much of the Obama administration’s rulemaking, and the proposed REINS Act would provide Congressional oversight over the rules agencies promulgate.

Congress has tried to restrain agency power before. The Administrative Procedure Act, which lays out the system by which agencies can issue rules, is itself a mid-century attempt by Congress to rein in out-of-control agencies. But the APA provides only weak substitute protections: notice and comment in place of Due Process, administrative review in place of judicial, and procedure instead of democratic accountability.

Fundamentally, almost three million federal civilian employees remain free to undermine the political policies of their democratically-elected superiors.

As in many policy areas, the states have been leading the way in reforming their own civil services. States like Georgia, Florida, Texas, and most recently Wisconsin have implemented a system of “at will” employment for public employees, while also washing away many of the Byzantine procedures that have calcified agency practices.

Many commentators have remarked upon the Jacksonian timbre of President Trump’s inaugural address. The new President has even moved Jackson’s portrait and statue into the Oval Office. He can spend his presidency locked in battle with millions of civil servants every time he wants to change agency policy, or he can look to the example of Andrew Jackson and states like Texas.

If the President takes action to reform a runaway agency class by instituting civil service reform, he will truly be returning political control to the people and their elected representatives in Congress and the White House.

Inez Feltscher Stepman is the Director of the Education and Workforce Development Task Force at the American Legislative Exchange Council (ALEC).

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