3 take-aways from the Michael Flynn pardon
Trump's plan to remove merit from the merit system
President Trump has mused about firing Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases. Thankfully, he can't do it. Fauci is a career civil servant, and so cannot be removed without cause. But Trump just signed an executive order that would allow him fire Fauci, and tens of thousands of others federal employees. If implemented, it represents the end the U.S. system of a merit-based politically neutral civil service, an essential pillar of U.S. democracy and power over the last century.
With about 4,000 political appointees today, the U.S. federal government is already an outlier in terms of political control of the bureaucracy. Trump's plan could lead to a ten-fold increase, creating an entirely different system turning any federal official with a policymaking role into a new class of at-will political appointee. The vague nature of the "policymaking" classification means it can easily incorporate lower-level officials who help to prepare the budget, or do routine policy analysis.
The federal government has its problems, as does any major organization. Many of those problems come from the fact that public organizations have multiple bosses - Congress, the President and courts - who may disagree on what its mission is. We ask federal bureaucrats to balance these imperatives - responding to Presidential policies while staying true to the law. Investing near-absolute power in one president is a recipe for politicization, corruption and a return to the spoils system. Public servants will be compelled to become yes-men.
I have written about civil service reform and public sector performance, and agree with what other good government advocates have been arguing for decades: a simple and effective way to improve government performance would be to reduce the number of political appointees. The best evidence we have is that such appointees worsen performance, especially when they lack relevant experience. Trump's plan goes in exactly the opposite direction.
The performance of the Trump administration itself offers the single best argument against its plan to politicize the civil service. A president who refuses to listen to advice, and asserts the innate superiority of his own opinions over scientific expertise. Unqualified political appointees. Career officials who have found themselves subject to retaliation if suspected of disloyalty, which often means little more than providing impartial policy analysis. Trump has removed Inspectors General he viewed as disloyal, undermining a primary basis for executive branch accountability.
Indeed, the key failures of the Trump administration arise largely from his dismissal of career officials. Trump would have avoided impeachment if he listened to career officials who warned him of the illegality of withholding public funds from Ukraine. Our COVID response would have been vastly better if Trump listened to federal scientists and public health officials. Instead, Trump appointees sought to undermine and second-guess them, demanding to review and edit scientific documents. Career officials will be much less likely to speak truth to power if it costs them their job.
Just as disturbing as the plan itself is the extraordinary expansion of presidential power it represents. Trump is making the most consequential change to the management of our civil service system since its creation by executive order and without public input. He is asserting, contrary to 140 years of federal personnel policymaking, that he can simply ignore Congress and appoint himself to be sole arbiter of the federal personnel system.
Where does this breathtaking power grab come from? The same unitary executive theory that grants the president complete dominion over the executive branch, and has been used to justify secret torture sites, and re-appropriating congressional funds for Trump's border wall. This dangerous and emerging interpretation is that Article II of the Constitution gives the president the right to fire anyone he wishes. The new executive order seems designed to draw a legal challenge, with the hope that a conservative Supreme Court will agree with this radical deconstruction of public service institutions.
The origins of Trump's plan reveal its purpose: it was outlined to the Domestic Policy Council in 2017 as a "Constitutional option" consistent with "an originalist interpretation." But it was not pursued until the aftermath of impeachment, a moment when Trump targeted federal officials who had spoken up. Trump revamped his Office of Presidential Appointments telling them to find and root out the disloyal. Trump made the acting head of the federal personnel system an appointee who has stated that the origins of the civil service system are unconstitutional.
Americans have become so used to a competent and apolitical civil service that we take it for granted, and are apt to complain about it. The Trump years have reaffirmed the value of this institution. Some of the most revelatory moments over the past four years came when public servants spoke up, reminding us that their oath is to serve the Constitution, not any single president. If Trump is reelected, those servants to the constitution will be shown the door.
Moynihan is a professor at the McCourt School of Public Policy, Georgetown University. @donmoyn