The Gathering Storm Threatening the Civil Service

It’s no secret that a wild and woolly presidential race is shaping up for 2024. But, in a much quieter way, truly epic storm clouds are gathering on the future of the civil service.

Members of Donald Trump’s administration, who championed a broad assault on the protections afforded federal employees, have concluded that their biggest mistake was not starting earlier, as Don Moynihan points out. These advisors, along with a broad collection of allies on the right and center of American politics, are determined not to allow that to happen again.

Here’s a partial lineup of the issues being raised:

The Heritage Foundation’s “Project 2025”  to root out the “deep state.” In what is perhaps the earliest launch of a major transition guide in history, Heritage has produced a hefty book, Mandate for Leadership: The Conservative Promise. It’s the work of 350 conservative thinkers, backed by 45 right-of-center organizations. “It’s past time to lay the groundwork for a White House more friendly to the right,” Heritage contends. “For decades, as the left has continued its march through America’s institutions, conservatives have been outgunned and outmatched when it comes to the art of government.” They’re mounting a counterattack.

The 17-page chapter on the civil service, co-authored by Donald Devine, Dennis Dean Kirk and Paul Dans, is a thoughtful but piercing critique of the existing civil service system. The trio calls for a stronger examination-based hiring system, a balanced performance rating system, pay for strong performers, an easier road for firing poor performers and cuts in what they view as a too-generous pension system. They say it’s essential “to identify and eliminate functions and programs that are duplicated across Cabinet departments or spread across multiple agencies,” and they call for implementing the Schedule F plan to make far more federal employees—in at least the tens of thousands—at-will workers who could be easily dismissed.

They also call for stronger political leadership of the public service, beginning with a faster start to filling all presidential appointments. At the core, they conclude that “the federal government’s bureaucracy cannot even meet its own civil service ideals.” That’s because the system’s problems “are rooted in the progressive ideology that unelected experts can and should be trusted to promote the general welfare in just about every area of social life.” Schedule F’s vastly greater power to hire and fire federal employees to root out this “deep state” collection of problems would rebalance the system.

Most ominously, they conclude with a hint of a constitutional challenge to the civil service. “Modern progressive politics has simply given the national government more to do than the complex separation-of-powers Constitution allows,” they write.

An attack on the constitutionality of public sector unions. In the new book NOT Accountable released in January 2023—and NOT in the title is in fact capitalized—best-selling author Philip Howard makes a powerful case against the power of public employee unions. Through a large number of examples, mostly related to state and local public unions, he launches a robust assault on unions and the constitutional issues they pose. “Accountability is basically nonexistent in American government,” he writes. “Performance doesn’t matter.” The reason, he says, is simple. “Police unions, teachers unions and other public sector unions have built a fortress against supervisory decisions.”

“Public employee unions in America are engines of selfishness—partisan machines dedicated to their own self-interest.” Moreover, “The American republic no longer works as designed because union controls disempower elected officials from managing government.” As a result, Howard concludes, public employee unions have built power that is unconstitutional because they prevent elected executives from exercising their constitutional obligations.

Howard is working to mount a challenge to the constitutionality of the 1978 Civil Service Reform Act, especially with the bargaining rights of federal public employee unions. Given the current makeup of the judiciary, it won’t be hard to find a federal district court friendly to this argument. And once the door to the constitutionality of this bedrock legislation is cracked open, it’s hard to predict how far the argument will go.

The campaign for Schedule F. James Sherk, who championed the adoption of Schedule F in the last months of the Trump administration, has been strengthening the case for bringing it back in a Republican White House, right from the start. In a Wall Street Journal op-ed, he contended last August: “While many career employees faithfully implement the president’s policies, others don’t.” He pointed to the role of Dr. Deborah Birx, the White House coronavirus coordinator under Trump. Sherk accused her of “insubordination” in blocking the position that Trump favored on locking down the economy.

“Career employees should give their best advice to political appointees, but once politically accountable officials make a decision, career staff should implement it faithfully,” Sherk said. Too often, however, this isn’t the case, Sherk contended, and the result is “sabotage“ against administration policy. The remedy, he said, is to bring back Schedule F.  Standing behind Sherk is his Center for American Freedom, a one-year-old research group in the America First Policy Institute.

Republican candidates echo the themes. In his first campaign rally, Donald Trump picked up on the theme. “Either the deep state destroys America, or we destroy the deep state,” he said in Waco, Texas, in March. Republican Florida Gov. Ron DeSantis, a potential 2024 contender, said he supported Schedule F with an attack on the nation’s health agencies. “They need to be cleaned out,” he said back in March, “because they totally failed and they’re not advocating for the best interests of the people of this country. It’s been a total disaster.” It’s inconceivable that a major Republican candidate would stake out a position any more favorable to federal employees.

So where does this leave the future of the civil service? Here, in brief, is the case conservatives are making for rooting out the “deep state:” 

• Federal employees have amassed great power;
• They often exercise that power in opposition to the views of elected officials and their political appointees;
• This is creating a “deep state” that frustrates the ability of presidents who win elections to advance their policies;
• This, in turn, has created unconstitutional barriers to the president’s responsibility, in Article II of the Constitution, to “take Care that the Laws be faithfully executed;”
• The core of the problem lies in the power of public employee unions and the role of experts; and,
• Congress doesn’t have a seat at this table. It’s an executive branch-centered argument.

Conservatives are offering two tracks for remedies: executive action, especially through a revival of Schedule F; and judicial cases, especially through challenges to the role of public employee unions and, even more fundamentally, to the role of the merit system itself.

Conservatives are uniting behind these propositions. From the left, however, there’s barely a peep, at least on the issues that conservatives are staking out. Good government groups are arguing for a protection of the merit system and opposition to Schedule F, including work by the nonprofit Partnership for Public Service and the National Academy of Public Administration. (Full disclosure: I’ve contributed to the NAPA work.)  

But in the storm that’s gathering on the horizon, the case for good government through the merit system is under growing—and powerful—assault. The “deep state” debate is grabbing the public agenda, and the attacks have the grips of powerful bulldogs.

We’re in for a very big debate about the future of the civil service. It could even prove existential. The fundamental principles on which the system has grown since its creation in 1883 are under the most profound attacks ever seen.

Donald F. Kettl is the co-author, with William D. Eggers, of the new book, Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.