Valuing the Deep State Part VI: Schedule F

The full compilation of Francis Fukuyama's Valuing the Deep State series can be accessed here.

In their campaign against the “deep state,” the Republicans want not just to reform the civil service—a bureaucracy that genuinely needs reform—but to gut it from top to bottom. If a Republican is elected president in 2024 this will almost certainly happen, even if the candidate is Ron DeSantis or someone else other than Donald Trump. Hostility to the permanent civil service has become one of the unifying issues of the new, populist Republican Party.

This hostility was expressed by J. D. Vance while campaigning for Senate in Ohio. In the interview, he suggested that if Trump were to win the presidency again in 2024, he should “fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts stop you, stand before the country, and say—quoting Andrew Jackson—’the chief justice has made his ruling. Now let him enforce it.'”

The Republicans already tried to do this. On Oct. 21, 2020, the Trump administration issued Executive Order 13957, which created a new “Schedule F” category for federal employees and ordered all agencies to move large numbers of their employees into this category. ___STEADY_PAYWALL___This order would in effect strip the newly re-categorized employees of their civil service protections and leave them vulnerable to termination. Had Donald Trump won a second term, he would have been able to dismiss large numbers of protected civil servants (like Dr. Anthony Fauci or Ambassador Marie Yovanovitch) and replace them with his own political appointees.

One of the first acts of the incoming Biden administration was to reverse Schedule F. Like many actions taken by the outgoing administration, the executive order was not planned particularly well, and few executive agencies complied with it. There is reason, however, to believe that the Schedule F executive order was not simply a one-off parting shot by an outgoing administration, but the opening salvo in a larger conservative plan to weaken the career civil service. To date, 28 Republican-dominated states have moved their state bureaucracies to at-will employment. The federal-level strategy would revolve around getting the Supreme Court to determine that merit-based hiring is per se unconstitutional, and that the entire classification system that has existed since passage of the 1883 Pendleton Act needs to be replaced with what amounts to at-will hiring and firing. The Schedule F executive order was simply to be a stalking horse for a coming legal challenge that would force the Supreme Court, now with a strong 6-3 conservative majority after the confirmation of Amy Coney Barrett, to address this issue.

The ability of Congress to regulate appointments and removals seemed a matter of settled law through most of the 20^th century but in recent years has come under renewed attack by conservatives who echo many arguments raised in the 1930s against the New Deal administrative state. The most far-reaching of their claims is that the delegation of authority to agencies by Congress is per se unconstitutional.

The constitutional argument is made on two separate grounds. The first is built around the theory of the “unitary executive,” which sees the U.S. Constitution as giving the president rather than Congress clear authority over the entire executive branch. The current federal executive is anything but unified, with an alphabet soup of agencies led by multimember boards and independent bodies like the Federal Reserve. A second constitutional argument concerns separation of powers.  Many federal agencies in effect perform legislative and judicial functions, such as the decisions by administrative law judges who are not Article III jurists. The Administrative Procedure Act tacitly acknowledges that federal agencies are performing quasi-legislative acts when they issue new rules; the ex ante procedural constraints it specifies merely limit their extent.

The right of presidents to appoint senior officers like cabinet secretaries with the advice and consent of the Senate is uncontested, and was affirmed in jurisprudence going all the way back to Marbury v. Madison. Article II, Section 2 states however that “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” It is on this ground that the Pendleton Act has been deemed constitutional over the decades; the real issue would seem to be the location of the dividing line between “inferior Officers” and their superiors.

However, as noted in my previous post, presidential appointment and removal power were never considered equivalent, and extensive removal power had been accepted since the decision of 1789. But in the post-World War II period this power was limited by an increasing number of procedural rights to appeal by career civil servants.

The case for enhanced removal power can be made on the grounds of government efficiency. Bureaucrats are not necessarily impartial public servants, but individuals with their own policy preferences who might seek to obstruct policy changes resulting from an election that brings a new party to power. In addition, civil servants seek to protect their own self-interest in ways that often do not correspond with public interest. From the beginning of the Progressive Era, civil servants organized themselves into public sector unions that sought not just to protect the merit system but also incumbency. While the existing system permits for-cause removals, judicial protections have expanded so substantially under union pressure in the second half of the 20^th century that public managers find themselves unable to remove incompetent employees. Conservatives argued a pragmatic argument that disciplining the federal work force had become nearly impossible. Moreover, the clear vesting of removal power in the head of the executive branch affords in theory greater accountability since voters can eject the president if they don’t like his decisions.

As the J. D. Vance quote cited earlier suggests, however, there is a second, less legitimate argument in favor of increased political control which has to do with political patronage. The merit-based civil service system was created to deal with problems of patronage and corruption that had plagued American public administration since the 1820s, preventing the emergence of a high-capacity bureaucracy sufficient to meet the demands of a complex and rapidly-changing economy and society. Patronage power nonetheless remained a powerful demand on the part of politicians. Needless to say, the conservative agenda of abolishing civil service protections under something like “Schedule F” will vastly increase opportunities for patronage and the prospect that capable professional civil servants will be replaced by political appointees whose main qualification is their partisan loyalty. We have already seen a preview of what this would look like in the Trump presidency, when competent civil servants were replaced by poorly qualified Trump partisans. The damage was limited then by the paucity of qualified loyalists. As Jonathan Swann has documented in Axios, the Republicans are spending their time out of office compiling lists of political appointees they would put into bureaucratic posts should they recover the presidency in 2024.

It is hard to describe the damage that will be done to American government if these plans are carried out. While there is a good case to be made for great flexibility in the hiring and firing of federal officials, the wholesale replacement of thousands of public servants with political cronies would take the nation back to the spoils system of the 19^th century. Republicans think that they will be undermining the deep state, but they will simply be politicizing functions that should be carried out in an impartial way, and will destroy the ethic of neutral public service that animates much of the government. When they lose power, as they necessarily will, the other party will simply get rid of their partisans and replace them with Democratic loyalists in a way that undermines any continuity in government. Who will want a career in public service under these conditions?  Only political hacks, opportunists, and those who see openings for personal enrichment in the bureaucracy.

This is not to say that the current system under which the federal bureaucracy operates is a good one, or that public sector reform isn’t urgent and necessary. But there are better ways of going about this other than the wholesale destruction of the career civil service, which I will detail in my final post.

Francis Fukuyama is chairman of the editorial board of American Purpose and Olivier Nomellini Senior Fellow and director of the Ford Dorsey Master’s in International Policy program at Stanford University’s Freeman Spogli Institute for International Studies.

Image: Donald Trump speaking at CPAC 2011 in Washington, D.C. (Flickr: Gage Skidmore)

The full compilation of Francis Fukuyama's Valuing the Deep State series can be accessed here.