Donald Trump has stirred controversy over his rapid issuance of executive orders, especially the ill-vetted one limiting entry into the United States. If it is true that it was not reviewed by the Justice Department’s Office of Legal Counsel, that was an unforced mistake which should not be repeated in the future. It’s important to do things right.
But controversy will arise even then — and the more so if the Trump White House follows up on suggestions from two creditable sources, who argue that the president has powers that go considerably beyond what is generally recognized.
One comes from Philip K. Howard, the New York lawyer who is the founder and head of Common Good, to whom I have made frequent reference. In The American Interest Howard argues, with careful constitutional and legal citations, that Congress has no power to prevent the president from firing “inept or subordinate” civil servants. To the contrary: “By Executive Order, the President could replace the existing civil service system with a framework consistent with legitimate goals — a new civil service system that honors principles of [politically] neutral hiring and is designed to foster a culture of excellence.”
Howard points out that the unionization of federal employees, by an executive order issued by President Kennedy in 1961, combined with court decisions requiring a form of due process in personnel decisions and the 1978 Civil Service Reform Act, has resulted in the creation of a federal work force that is both unresponsive and ineffective.
His conclusion: “America needs to remake government for the 21st century. The only path forward is to return to constitutional first principles and, by Executive Order, create a civil service system that restores the authority of the President and Federal supervisors to manage public employees. Restoring accountability up the chain of responsibility is no silver bullet, but it will allow public executives to rebuild an energetic and responsive public culture. Instead of being bogged down in employee entitlements, government can once again work for the American people.”
Is President Trump interested? Going this route, as Howard points out, means undergoing challenges that would likely go up to the Supreme Court, and would require much more preparation and groundwork — and consultation with other public figures — than the executive orders of his first full week in office. But it’s an interesting idea.
The other audacious suggestion comes from a more ideological source, the Wall Street Journal columnist Kimberly Strassel. She notes that House Republicans are already busy preparing to overturn Obama administration executive orders finalized in the last 60 legislative days, which goes back to June 2016, under the widely understood terms of the 1996 Congressional Review Act.
But she notes that Todd Gaziano, a staffer who played a major part in drafting that legislation, points out that the CRA starts the clock on the 60-day period either when the agency supplies a required “report” of its regulation or when Congress receives the report, whichever is later. Since many Obama administration agencies failed to supply these “reports” on regulations, that period can be started now or at some later time when the agency, presumably under leadership of the new administration, submits a report.
Also, Strassel argues, the CRA includes not just regulations explicitly labeled as regulations, but also agency “guidance” letters, like the notorious 2011 Department of Education letter requiring colleges and universities to set up kangaroo courts to adjudicate allegations of sexual assault without due process. (For more information, see KC Johnson and Stuart Taylor’s new book The Campus Rape Frenzy.)
Since agencies have probably never submitted reports on such guidance letters to Congress, the 60-day period on each could be triggered by Trump administration appointees. One final fillip: Once Congress disapproves a regulation, the CRA prohibits an agency from reissuing it in “substantially the same form” without congressional authorization.
Obviously there will be lots of squawking, and almost certainly litigation, if the Trump White House adopts Philip Howard’s audacious suggestion or if Republicans in Congress and the administration follow Strassel’s audacious advice. But the potential for major policy change and for major reform of an administrative state that has managed to be both authoritarian and sluggish at the same time is there — if it is employed wisely and with careful preparation.
