Does Trump have the right idea about dismantling the Deep State?

The lynchpin of Donald Trump’s “plan to dismantle the deep state” is to assert authority to dismiss senior civil servants at will: “First, I will immediately re-issue my 2020 executive order restoring the president’s authority to remove rogue bureaucrats. And I will wield that power very aggressively.”

Trump’s diagnosis is correct in part but his reform proposal badly misses the target. He is correct that, instead of a “merit system,” federal civil service has become a kind of anti-merit system:

• Federal employees are largely unaccountable: 99% of federal employees are rated “fully successful.” Poor performers are practically impossible to fire, even when caught spending their days surfing porn sites.
• Many federal employees also are unmanageable: Supervisors must collectively bargain with “union reps” rudimentary management choices—who does what, even who sits at what desk. 
• Federal officials can subvert lawful directives from political officials by the pretext of following the bureaucratic labyrinth. True believers within agencies simply drag their feet until the next election. There’s an acronym for it: Webehwyg (We-be-wig): “We’ll be here when you’re gone.”

Trump’s proposed Schedule F addresses only one of these flaws, bureaucratic subversion. By giving Trump the authority to fire senior civil servants for almost any reason, Schedule F goes too far while doing too little. The proposed overhaul should aspire to be a “merit system,” not a new spoils system, and must be far bolder to attract the talent needed in 21st century government.

Schedule F goes too far. Trump’s executive order would transfer 50,000 or more senior civil servants into a new Schedule F of “at will” employees.

Schedule F presumes that public employees should do whatever the president wants. But civil servants have dual loyalty— to honor the direction of political leaders within the boundaries of law and ethics. A “merit system” requires a culture of professionalism, in which civil servants are accountable for performance but also protected from partisan retribution.

Schedule F would instead create an ethos of fear, inducing senior civil servants to act like toadies—to follow any presidential dictate even if contrary to fact or science. This is not an abstract fear with Trump, as demonstrated in the “Sharpiegate” incident when he pressured weather officials to affirm his inaccurate assertion that Hurricane Dorian would impact Alabama, and when he tried to get FDA officials to reauthorize the use of hydroxychloroquine to treat Covid.

Schedule F also allows the president to hire senior civil service staff without regard to qualifications. Giving serious public responsibilities to inept political hacks, not their partisanship, was considered the principal defect of the 19th century spoils system. It’s hard to see how a new version of the spoils system is in the public interest. 

Schedule F does too little. Schedule F does nothing to empower senior civil servants to manage the employees below them. Elaborate legal procedures require a supervisor, for example, to prove in a grievance proceeding that Mr. X doesn’t try hard, or is unresponsive to citizen needs. How does a supervisor prove a bad attitude or poor judgment? Personnel judgments can be readily reviewed by other co-workers, but they are judgments, not objective facts. The near-impossibility of proving ineffectiveness is why there’s near-zero accountability.

The main harm of no accountability is not a mass of poor performers, but a dispirited public culture. Mutual trust is difficult when everyone knows performance doesn’t matter.

“We note deep disaffection within the public service,” the 2003 Volcker Commission concluded. “They resent the protections provided to those poor performers among them who impede their own work and drag down the reputation of all government workers.”

Nor does Schedule F remove the chokehold of public union collective bargaining agreements, which require even minor managerial choices—such as training for a software upgrade—to be separately negotiated.   

Modernizing civil service by executive order. Like obsolete infrastructure, America’s civil service framework should be largely scrapped. Designed to accommodate clerks processing forms, and then amended in the 1960s to appease federal unions, the civil service system is a rusty industrial age machine disconnected from performance and repellant to highly qualified people. The imperative to overhaul civil service was first sounded in 1989 by Paul Volcker, but numerous reform proposals have gone nowhere because of congressional indifference and union opposition.  

Trump’s Schedule F, although ham-fisted, points the way to a bolder approach—to start remaking civil service by executive order. By asserting the constitutional powers of the executive, the president can disavow rigid congressional and union controls, and provoke a constitutional challenge to be decided by the Supreme Court. This dispute will also likely catapult civil service reform from a back closet to the top of Congress’s agenda.

The Constitution in Article II provides that “the executive Power shall be vested in a President.” Numerous rulings by the Supreme Court have limited Congress’s ability to impinge on “executive power” regarding personnel judgments. Under these rulings, a president could disavow key aspects of civil service law, including refusing to comply with:

• the detailed disciplinary procedures that make it impractical to terminate, discipline, or even give an honest job performance evaluation;
• collective bargaining powers that preempt managerial authority; and
• the mechanistic hiring procedures that drive away good candidates.  

In the place of these statutory provisions, a president by executive order could provide a framework aimed at implementing the goals of a merit system—generally, empowering officials to take responsibility and empowering other officials to hold them accountable. Protecting against unfair personnel decisions can be achieved by giving oversight authority to an independent group or committee, not by legal trials.

Congress will continue to kick the can down the road until forced to act. Remaking civil service by executive order could prod Congress into a long overdue modernization of the operating machinery of government.