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Is Our Federal Bureaucracy Unconstitutional?

By Mark Hemingway
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For years now this magazine has been arguing that civil service reform is a necessary condition for fixing a myriad of America’s problems. When the IRS starts politically targeting people and the VA’s incompetence is killing veterans, and both are almost entirely resistant to the efforts by Congress to fire anyone, bureaucrats have, in effect, become our masters.

Now, Philip K. Howard, whose 1994 book The Death of Common Sense proved instrumental in encouraging reform of the legal profession, is sounding the alarm about the federal bureaucracy. In fact, he makes the case in a recent Wall Street Journal op-ed that the civil service system as we know it is unconstitutional:

President Trump wants to overhaul the civil service. Even ardent liberals agree it needs to be rebuilt, but past efforts at reform have withered in Congress under union power and public indifference. There’s a more direct path: Mr. Trump can repudiate civil service in its current form as a violation of the Constitution’s mandate that “the executive power shall be vested in a President.” Executive power is toothless without practical authority over personnel. “If any power whatsoever is in its nature executive,” James Madison once observed, “it is the power of appointing, overseeing, and controlling those who execute the laws.” Taking away the president’s power over executive branch employees is synonymous with removing his executive power altogether. Yet this is exactly the case today. Because of civil-service laws passed by Congress many years ago, the president has direct authority over a mere 2% of the federal workforce. The question is whether those laws are constitutional. Does Congress have the power to tell the president that he cannot terminate inept or insubordinate employees? The answer, I believe, is self-evident. A determined president could replace the civil-service system on his own, by executive order. The move would doubtless be challenged in court, but it would likely be upheld, especially if the new framework advances legitimate goals, honors principles of neutral hiring and is designed to foster a culture of excellence.

It’s worth reading the rest of the op-ed for an overview of Howard’s argument. However, Howard has also concurrently released a longer journal article in The American Interest on civil service reform that deserves to be read. Having a fuller picture of the history and questionable legal framework that undergirds the current morass of incompetence in federal agencies is the only way to understand how to rein in the incredible amount of administrative state excesses. For instance, did you know that one reason why it’s difficult to fire federal workers is that holding on to their taxpayer-funded jobs is considered a property right? That’s insane:

The slow dissipation of presidential power is a story rich with irony—designed to avoid interest group capture, the civil service became its own special interest. First public employees got Congress to legislate protections against politically motivated termination. Then JFK, as a reward for public employee support, signed an Executive Order allowing public unions to bargain collectively with the government. Then the Supreme Court held that all these legal protections meant that public employment was a form of property right, protected by the Due Process Clause. Then Congress gave JFK’s Executive Order statutory power. So we’ve come full circle: Instead of guarding against public jobs as political property, the civil service has become a property right of the employees themselves. The layers of legal protection put the President in the position of a legal supplicant, facing union and constitutional hurdles that effectively eliminate accountability as a meaningful concept. Public employees answer to no one.

Replacing the civil service system by executive order here would be very bold and would likely cause a lot of angst should Trump pursue such a course of action—and that’s true even by the current histrionic current standards where when Trump lightly sneezes and protests break out across the country. Nonetheless, Howard makes a compelling case that this is the right thing to do on principle. It also might be a winning fight to pick if federal workers are forced to defend the fact that the two million or so federal workers get paid an average of $123,000 a year and can’t get fired even when people die because of a bumbling agency. It also seems like the GOP Congress might finally be itching to do something about a bureaucracy where their union questionably takes taxpayer dollars to fund the campaigns of the Democratic opposition.

Failing that, there’s only one other proposal that would adequately address this problem that’s been made in recent years, and it’s no less dramatic. We might have to take Charles Murray’s advice in his excellent book, By the People: Rebuilding Liberty Without Permission, and sue the federal government into oblivion.

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