The Battle for the Public Service Is Just Beginning

When then-President Trump signed an executive order in October 2020 to make it easier to fire federal employees, it set off a firestorm over fears that Trump was attempting to overturn 140 years of federal policy and politicize the civil service. So when President Biden in January rescinded that executive order with one of his own that restored the status quo, many breathed  a sigh of relief. 

Some merit system proponents concluded they had dodged a bullet aimed at the heart of a system intended to protect federal employees from political interference. Some conservatives were disappointed that they had lost their chance to make it easier to fire poor performers. But in the aftermath of a contentious election and a global pandemic, many people simply considered the issue a trivial game of inside baseball.

They’re all wrong. 

We are in the midst of a critical debate over the future of the federal workforce—and with it, about the future role of the federal government. It is raising questions more fundamental than at any time since the passage of the Pendleton Act, which established the civil service system in 1883. The questions speak to the role of administrators in our constitutional system of governance and, indeed, the Constitution itself. The issues are gaining steam on the right, all but guaranteeing that the Trump executive order—or something like it—will continue to at the center of the debate over workforce policy in the public sector, not only at the federal level but in the states as well. The debate, however, is not being joined from the left, except to thwart efforts to cut the number of federal employees and make it easier to fire employees. Both sides are missing the most important issue: how to equip the federal government to deliver services to the public, in the best way possible.

The stakes here are enormous. Let’s unpack the issues.

The Problems are Real 

The central argument of the reformers from the right is that public employees in general—and public employee unions in particular—are unaccountable to elected officials. The protections long afforded them, therefore, should be abolished or, at least, scaled back. 

Best-selling author Philip K. Howard has for some time contended that elected officials do not have sufficient control over the government workforce. The reasons, he argued in a February op-ed in USA Today, are that public employees are represented by unions and that the unions promote featherbedding on the job. Howard writes that “public employee unions are politically impregnable, even though, “Public union power is largely an accident of history.” In Article IV, Section 4, he points out the guarantee of “a Republican Form of Government.” The rising power of public employee unions, reinforced by the difficulty of removing poor performers, means that “elected officials lack the ability to run government.” That, he concludes, violates the guarantee and leads to abuses of power, which “cry out for constitutional redress.”

There are, in fact, interlocking arguments that have developed over time: that government workers enjoy political and procedural protections that were not envisioned in the Constitution; that the Constitution vests power in elected officials—power public employees can easily frustrate; that this creates both political and operational problems for government; and that as a result, the government is encountering existential problems that require fundamental reforms to weaken the role of unions and to make it easier for elected officials to replace government workers, especially poor performers. 

Howard has laid out the broad theory, and former Heritage Foundation analyst and Trump administration official James Sherk has developed the details. In 2017, he wrote a memo calling on the federal government to stop collecting union dues and to “explore the ‘Constitution Option’ for firing federal employees.” He contended, “There are legal arguments that Article II executive power gives the president inherent authority to dismiss any federal employee.” That, he argued, “implies civil service legislation and union contracts impeding that authority are unconstitutional.” What the government needed was “an originalist interpretation of the constitution” that created the legal foundation for the president to issue an executive order to dismiss any federal official without cause.

Three years later, this memo provided the foundation for the Trump executive order that created a new Schedule F in the federal personnel system, which weakened the job protections provided federal employees and made it possible to fire them at will. It was the culmination of a long-term strategy, but time ran out for executing it. Since leaving the White House, however, Sherk has written a detailed policy paper to continue the campaign and, he warns, “Biden is refilling the swamp with unelected bureaucrats.”

The Schedule F debate, therefore, is far from over. Its supporters are loading up for another run and, in the meantime, are pressing their case at the state level. It’s worth noting, moreover, that not only did Schedule F aim at making it easier to fire feds without cause, including for political reasons. It also would have made it easier to hire feds based on their political affiliation. This is shaping up as one of the most far-reaching battles over the workings of government in a very long time. 

It would be simplistic to dismiss the arguments made by Howard and Sherk as a contrived case from the far right. They have identified very real and very serious problems that, they believe, call for dismantling civil service protections. (I profoundly disagree with their solutions. They are Madisonians, perhaps Jacksonians, while I’m fundamentally a Hamiltonian.) Too often, the federal government is clumsy instead of agile in responding to big problems; elected officials of both parties are often frustrated with the problem of convincing the bureaucracy to pursue the policies they thought they had been elected to fulfill; and poor performers are indeed difficult to fire. These arguments combine to frame a genuine constitutional crisis about the ability of voters to shape government through the decisions of the people they elect.

That crisis isn’t going away. It’s likely to get even worse. And that will only throw more gasoline on this fire. Therefore, we need to carefully consider the important questions that Howard and Sherk raise.

So let’s dig deeper into the four issues at play: the constitutional debate; the question of firing feds; the problem of accountability; and the challenge of agile government.

1. The Constitution 

Sherk and Howard argue that neither the Constitution, adopted in 1787, nor the Pendleton Act, passed in 1883, ever intended that there would be a federal bureaucracy with such extensive and insular power. 

They build their argument on Article II of the Constitution. It is their contention that, since the article holds that “the executive power shall be vested in a President” and since, as James Madison wrote, “If any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” Therefore, they argue, the president has the authority to remove federal employees from their positions—and to do so at will. 

There’s a profound paradox here, of course, in arguing the original intent of the founders by pointing to a part of the Constitution that, in fact, doesn’t say what they say it says. That portion of the Constitution is short and vague, and the early debates of the founders spent very little time on anything dealing with the executive establishment. They were concerned principally with creating the chief executive that they knew, from the Articles of Confederation days, that the country needed—and ensuring that the power of the president could be checked by the other branches. In Federalist 70, Alexander Hamilton famously wrote about the importance of “energy in the Executive.” In exploring the role of the president he talks about the president’s connection with citizens, the power to appoint ambassadors, and his power with respect to the legislature. There’s nothing about the ability to fire federal employees. 

An originalist reading of the Constitution simply does not make the case about the power of a president to remove federal employees, with or without cause. This just wasn’t something the Founding Fathers spent time on. In fact, if we are to draw anything from the founders’ debate, it’s worth considering what Hamilton—the founder who spent the most time thinking about the new chief executive—had to say about what the executive establishment ought to look like.  The answer: very little. There simply isn’t a case in the founders’ debate for arguing that they intended to make it possible for the president to remove federal bureaucrats. They didn’t explore how to remove those they didn’t spend time thinking about. 

2. Firing Feds

At the center of the case for a radical change in the civil service system is the argument that, over time, it has evolved from a system that hires the best and brightest to one that protects the lame and the lazy. Sherk contends that this was never what the Pendleton Act intended, and that the gradual accretion of protections reinforces poor performance and contributes to the erosion of democratic accountability. 

The federal civil service system and the protections provided to employees have both evolved considerably since passage of the Pendleton Act. The original act covered just 10% of the federal workforce; the merit system now covers 90% of all feds. The original act was just over 2,600 words long. Title V of the U.S. Code, which contains the regulations to administer the civil service system, is more than 1,000 pages. It’s certainly debatable whether that’s effective or desirable—the current system has few defenders, the current regulations are often impossibly dense, and any agency with the chance to escape it has done so. 

Title V, in fact, now only covers about half of all federal employees, with other titles expanding to accommodate employees in Defense, Homeland Security, Veterans Affairs, and State. There’s a very important debate to be had about the need to figure out which policies ought to apply to all feds and the agencies they work for, and what flexibilities ought to be allowed to agency managers. The proliferation of legal authorities in the current merit system has made a mess of government's performance. But it’s a very long road from the original passage of the Pendleton Act to where we stand today. The original language of the Pendleton Act, which is just a brief outline of a merit system that was designed for a very different time, provides few useful answers for the federal workforce today. 

Sherk and Howard make a good case that we do a poor job of managing the performance of federal employees. But, in fact, it’s very easy to fire feds during their initial probationary period, for any reason and without due process, as long as decision isn’t a direct violation of law (like discrimination by race or partisan affiliation). After that, employees can be—and are—fired for poor performance or misconduct, although they have long-established due process protections established by the U.S. Supreme Court.

The argument for firing feds rests on an implicit assumption about the private sector: that private managers can rid themselves of employees much easier and do so far more often. In fact, private sector workers also enjoy many legal protections, which limit  employers’ freedom to fire people. 

Comparing the rate of firing for cause between government and the private sector is hard to do. In the private sector, there simply is no good database to establish how many workers are fired for cause, a question that the Office of Personnel Management tracks very closely for the federal government. The Bureau of Labor Statistics measures separations from private employment, but it does not distinguish between firings for cause versus other forms of dismissal, such as shifting economic circumstances. In addition, of course, the separation rate for private employers varies enormously, from finance and insurance companies (where turnover is relatively low) to arts, entertainment, and recreation (where it’s very high). An analysis of available data, which I recently posted on GovExec.com, shows the rate of layoffs and discharges in industries similar to government wasn’t markedly different than rates of firing for cause in the federal government. 

Yes, it’s certainly hard to fire feds. But there isn’t evidence that similar private sector industries fire employees for cause at a significantly higher rate than in the federal government. There are, to be sure, anecdotes about misbehavior of federal employees. But even a casual look at the news headlines turns up outrageous behavior by private sector workers. Beyond these anecdotes, there just isn’t good evidence that the situation is markedly worse in the federal government. We should not blow up the whole system on the basis of individual cases. 

3. Accountability 

The case for making it easier to fire feds becomes more pointed on the question of whether federal officials are sufficiently accountable to their political executives and, ultimately, to the president. Sherk writes, “Removal restrictions can also undermine the government’s democratic accountability,” because democratic accountability “exists only if career staff are meaningfully accountable to presidential appointees. In practice, removal restrictions significantly weaken this accountability.” The argument has merit. There’s evidence that, during the Trump administration, members of the career civil service slowed, obstructed, or sometimes ignored the policies laid out by superiors to undermine the Trump agenda. 

Trump officials were understandably enraged by what they viewed as bureaucratic sabotage. For their part, federal employees viewed their quiet resistance as an important barrier to policies that conflicted with science, long-standing practice, and sometimes the law. This conflict set the stage for the arguments about the “deep state.” More fundamentally, it framed the central battle: how much authority political appointees should have in pursuing the president’s agenda, and what responsibility career officials ought to have in pushing back on issues they believe are wrong-headed or illegal. 

There’s nothing new about this tension, which has plagued democratic governments since the Age of Enlightenment in the 18th century. Scholars have found considerable evidence that political meddling in the work of government would “reduce the effectiveness of government and increase corruption,” as noted personnel expert James L. Perry puts it. That was the driving force behind the passage of the Pendleton Act, and it’s the consensus of most scholars in the field today. But that scarcely proved convincing to Trump administration officials frustrated with their inability to drive a policy agenda through a federal bureaucracy they viewed as obstructionist, at best. 

There are laws that prohibit federal employees from blocking the legal decisions of their political superiors, and there are legal procedures for political appointees to deal with those who disobey the instructions they get. “‘Resistance’ based on political differences is unprofessional and improper, regardless of which side one favors,” one former high-level federal career official told me. “We already have a law that provides exactly that,” the official said, “and we didn't need a new executive order.” 

There’s a huge issue here: how best to ensure that the federal bureaucracy acts professionally on the political choices made by voters. This is an issue that needs a careful and fundamental debate, and that debate is certain to challenge the views of those on both the right and the left.  What that debate does not need is an executive order that hides the big questions in the fog of an ideological war. This is an ageless question that has become unquestionably more pointed today. It deserves an out-in-the-open debate.

4. Responsive Government 

What ought to drive that debate is not how to use the public service to fight partisan right v. left partisan or ideological battles. The real question, too often obscured by the angry rhetoric, is how best to deliver quality, responsive government services to Americans. The debate over accountability and firing authority has diverted attention away from what matters most: government’s mission. We need to focus far more on the what—the outcomes we achieve—than the what and the how—the tools we use to achieve them. Too often, these questions have become ideological battles and the battles have focused on process to the exclusion of mission.  

Too often, the public service has become the front lines of a proxy war over the size, shape, goals, and performance of government itself. If we disagree about those mega-issues, we ought to contest them directly, instead of fighting them out over the desks of those who go to work trying to do the public’s business. But fight the proxy war we do: how many federal employees we should have; whether federal employees should have union representation; how to make it easier to fire feds; how to undermine government programs by attacking those hired to administer them. 

While I profoundly disagree with the prescription Sherk and Howard promote, they have nonetheless laid out important problems in the civil service largely ignored by their opponents on the left, whose primary response has been to defend the status quo by protecting the representation of unions and the number of federal jobs. As a result, right and left are waging an epic battle—over precisely the wrong questions. 

The National Academy of Public Administration, in its 2017, 2018, and 2021 reports, laid out a road forward: creating an agile, flexible system to accomplish the federal government’s goals in ways that are consistent with the country’s long tradition of merit in government. We don’t need a one-size-fits-all system. But we do need a system that balances the need for a professional public service with the imperative for responsive democratic government. Those are questions not served by the case for making it easier to fire feds or the campaign to defend federal positions. What matters most is creating a system that improves government’s ability to do the public’s work, in ways that are responsive to the public’s will but which are protected from political interference. Before the creation of the civil service system, the federal government was plagued by incompetence, corruption and political favoritism, the violent culmination of which resulted in the assassination of President James Garfield. 

A Way Forward

We need a way forward that builds a government—and a merit system—that fits the needs of the 21st century. That surely requires careful professional analysis and a searching political debate. But, if we’re going to have a debate, we need to focus on how government can deliver on the needs of Americans, not how to transform its public service into a football kicked between political rivals.

Moreover, we need to find the right way to address the future of the public service. There are two important points here. First, what we should not do: The Sherk and Howard approach treats the problems of the public service, at their core, as procedural problems. The problems of the public service, however, flow fundamentally from substantive challenges, about how to get the job done. It would be a truly grave error to substitute the former for the latter. 

Second, what we should do: The fundamental problem of the public service is its growing difficulty of producing the results citizens—and the policymakers they elect—expect. We need to focus on results, not processes. 

Here’s where we need to start.

• Mission matters most. The fundamental purpose of the public service is to do the public’s business. Period. It’s not to provide a reservoir of jobs, strengthen unions, attack public employees, refight constitutional battles, or create a battleground for ideological conflict. The essential first step is to ask how we can get the right people, with the right skills, in the right places, at the right time, to serve the public. 

• Merit is key. The basic principle of hiring people for what they know, not who they know, has been the foundation of the public service since the very start. So, of course, is the principle of separating people who don’t effectively serve the public’s mission. The essential second step is to reinforce the principle of merit but refit it for the 21st century, with new systems of hiring, promoting, motivating public employees—and, yes, firing them when they fail to serve the mission. But the nonpartisan foundation of expertise lies at the core. There isn’t a partisan way of delivering Social Security checks, managing air traffic, or forecasting the path of hurricanes. Citizens would be outraged if they ever imagined that the service they got depended on their partisan identification.

• Accountability lies at the core. Like every other element on American government, we need effective accountability for public employees. But the accountability we need is to government’s mission, as defined in law, not to political pressure, as shaped in the back room. The relationship between career employees, political appointees and the law is always a complex one. But accountability is not defined by the capacity of political appointees to fire subordinates. It is defined, rather, by their ability to accomplish the government’s mission. We need a far more robust system of performance management, which couples government’s outcomes with how employees contribute to it. We’ve made great progress on this essential third step by engaging employees to provide unmatched customer service, even if the customer of an employee is inside government itself. 

• Human capital ought to drive the pursuit of performance. The first three steps point to the fourth: viewing government employees as the government’s most important assets and creating a system that finds and nourishes those most important to achieving its mission. This requires a radical rethinking of our human resources system, shifting HR from an add-on that officials from both political parties (and the employees themselves) often find troublesome to a core function of government, linked to its mission. It should not be one more thing to do but, rather, the way we think about doing everything. That will be even more important as government moves ever deeper into the networked information age, where agile bridge builders will be essential to getting the job done. 

We’ve got a lot of work ahead of us, and we have a reservoir of mistrust we need to drain. There were surely resisters in the bureaucracy during the Trump years. Just as surely, there was poor leadership that left the career bureaucracy rudderless. This, of course, is not purely a problem of Trumpism. Democratic administrations have often had similar problems.

When it comes to federal employees, the picture is fuzzy about how much partisan bias there might be. In the 2020 election cycle, about two-thirds of the donations made by federal employees went to Democrats, although Republicans fared better in the State Department  (with 46% of donations from employees there going to Republican candidates) and the Postal Service (with 38% of the money going to Republicans). But there’s also evidence that the number of Republicans and Democrats in the federal workforce is roughly balanced, as it is in the country as a whole, and a Pew Research Center analysis found that Democratic and Republican members of the House represent about the same number of federal employees around the country. 

There might well be partisan leanings in the workforce, but the frustrations that surfaced in the Schedule F proposals flow more from the pathologies of the system than the biases of federal employees. And, in any event, every public servant swears an oath to serve the country, not their partisan beliefs.

It’s time to shift the debate about the public service from partisanship to pragmatism: how best to accomplish the work of the people, with a workforce expert enough to do the job. This might well be the most important debate we can have about the performance of American government. Indeed, the trust of citizens in their government hinges on this far more than we know.