Last week, President Trump issued a new Executive Order that, if implemented, could dramatically change the U.S. federal civil service—and in so doing threatens to subvert one of the most important bulwarks against corruption in all of U.S. law.
First, a quick synopsis of what the order does: Federal civil service laws are complex, but simplifying a bit, the bulk of U.S. civil service positions fall under something called the “competitive service” (also known as the “merit system”), in which hiring is based on competitive examinations administered by the Office of Personnel Management. Furthermore, those holding competitive service positions can only be removed for good cause (that is, they can’t be fired at will), and removals of such officials are reviewable by an independent commission called the Merit Systems Protection Board. Also importantly, those in the competitive service are entitled to union representation. Not all federal positions have these protections; the most senior civil servants are part of a different system (the “Senior Executive Service”), and there are a number of other relatively narrowly drawn exemptions for particular classes of jobs, typically those for which hiring by competitive examination is not practical (the “excepted service”). President Trump’s new Executive Order would shift from the competitive service to the excepted service any position that has “a confidential, policy-determining, policy-making, or policy-advocating character.” If that sounds very broad, it’s because it is. The Executive Order, if implemented, could shift tens of thousands, or possibly hundreds of thousands, of federal civil service positions out of the competitive service, thus giving the President the authority to fire the holders of those positions at will, as well as the authority to replace them with political appointees.
It’s not entirely clear whether the new order is legal. The relevant statute does contain a provision that allows the President to create “necessary exceptions” from the merit system insofar as “conditions of good government warrant.” Past presidents have exercised this authority, though to the best of my (limited) knowledge, President Trump’s Executive Order is unprecedented in both the breadth of its coverage and the thinness of its proffered justifications. That might matter, because there are a handful of prior court opinions (though none at the Supreme Court level) that suggest that the President’s authority to exempt positions from the merit system is not unlimited. It’s also not certain whether the Executive Order will ever go into effect. If Joe Biden wins next week’s election, he could reverse the order as soon as he’s inaugurated, and it’s unclear whether the Trump Administration will be able effect any actual reclassifications under the order prior to inauguration day. (The order itself calls on all agencies to prepare a preliminary list of affected positions by inauguration day, but it’s possible that agencies might move faster and reclassify some positions before then.)
For purposes of the present post, I want to put those issues aside. I also will put aside, for now, broader questions of whether the Executive Order would worsen the politicization of federal agencies or undermine their overall quality (themes I’ve explored in other work). Instead, my objective here is to elaborate on why this Executive Order, if implemented, poses such a significant corruption threat. To do that, let’s consider three forms of corruption (or corruption-facilitating practices) that the civil service merit system is meant to constrain, and the impact that this Executive Order would have on each:
- Patronage. The first way in which the civil service merit system curbs corruption is by limiting the opportunities for political parties to use government jobs as a way to reward supporters (and, concomitantly, to use the power over government personnel as a way to punish those viewed as insufficiently loyal). As a historical matter, the merit system was envisioned principally as an anti-patronage reform, one meant to displace the so-called “spoils system” that had dominated federal appointments since at least Jackson Administration. Patronage hiring—which still exists to some degree—may or may not be corruption per se. But it is at least corruption-adjacent, and historically the spoils system was most definitely associated with—indeed, deeply enmeshed with—more overt forms of systemic corruption. Serious civil service reform began in the United States with the passage of the Pendleton Act in 1883, and expanded at both the federal and state levels over the course of the next half-century. To be sure, as noted above, a thin but important layer of top-level government posts with significant policymaking responsibilities, as well as a select number of other positions, remain outside the coverage of the merit system. Nevertheless, the shift of most other federal positions into the competitive service has been instrumental in stamping out the corrupt Jacksonian spoils system. It’s not yet clear whether Trump’s new Executive Order, if implemented, might bring back some form of spoils system, and the corrupt practices that typically come along with it. Perhaps the threat is mitigated by other changes in law and institutions. It’s also possible that the number of employees shifted from the competitive service to the executive service might not end up being that large. (Ten thousand may sound like a lot, but in a federal civilian workforce of over 2 million, it’s only half a percentage point. Of course, if the number of civil servants shifted from the competitive service to the excepted service ends up being closer to 100,000, that might be a different story.) Still, this is a matter of concern, especially because the legal theory for the shift advanced by President Trump’s Executive Order is so broad that, if accepted, it would seem to open the door to even more radical attacks on the merit system if President Trump pulls off an upset in next week’s election. If that happens, we may find ourselves on the road to Spoils System 2.0.
- Impunity. A second way in which the merit system protects against corruption is by filling the government with career civil servants who are less likely to go along with efforts to ignore or cover up wrongdoing by the President and his or her cronies. Systemic corruption thrives on impunity—the ability of the top leaders, or those who curry favor with those leaders, to avoid accountability for their misdeeds. And even though the top-level officials responsible for law enforcement, such as the cabinet secretaries and senior deputies, are already political appointees, typically the relevant agencies are heavily staffed with career professionals who are likely to know about, and object to, attempts to sweep serious wrongdoing under the rug. Put another way, the civil service is full of potential whistleblowers, both internal and external. Furthermore, many of these officials may proceed with investigations and similar activities (such as audits) even when doing so might be politically inconvenient for the President and his or her allies; some if these officials might be willing to noisily resign if such investigations are squelched for political reasons. President Trump’s Executive Order threatens to undermine this check on presidential impunity. True, separate statutory protections for whistleblowers would still be in place after the implementation of this Executive Order, and would prohibit the government from firing even an at-will employee as retaliation for whistleblowing. But that might not matter so much if virtually all civil servants privy to information about sensitive investigations are party loyalists. (On this point, it’s worth noting that the Executive Order would shift to the excepted service not only those with a policy-making or policy-advising function, but also all of those who have access to confidential information—a broad category that would certainly include anyone working on a sensitive investigation or audit.)
- Weaponization. The third and perhaps most troubling way in which Trump’s new Executive Order poses a corruption threat is the complement of the impunity concern sketched above: Corrupt leaders may seek not only to ensure their own impunity (and that of their cronies and allies), but also to weaponize the institutions of government to attack or undermine their rivals. For example, incumbents may seek to gin up flimsy or phony investigations of political opponents. They might also entrench a system of so-called “crony capitalism” by leveraging the government’s vast regulatory powers to secure economic advantages for themselves and their supporters, while denying those advantages to those viewed as insufficiently loyal. (Consider, for example, questions like whether the government will approve a merger, or grant a waiver from an otherwise applicable regulation, or confer a license.) It’s more difficult to get away with this when many of the bureaucrats involved in making these decisions are career civil servants, with their own sense of professional ethics, as well as concerns about their professional reputations. It’s harder to get the tax authorities to audit your political opponents, or to get law enforcement authorities to announce they’re investigating your rivals for crimes, if the career civil servants in the relevant agencies won’t play ball. Likewise, political meddling in government contracting, permitting, and waiver decisions is much harder if you can’t get civil servants to produce the analyses and make the findings that would support the President’s preferred outcomes. Trump’s new Executive Order is perhaps most pernicious, from an anticorruption standpoint, because it would eliminate this internal check on the abuse of government power. Under the new Executive Order, civil servants can be implicitly (or perhaps even explicitly) threatened with losing their jobs if they don’t support the White House’s position, and those bold enough to resist anyway can simply be fired and replaced with party loyalists who will do the President’s bidding without scruple.
For these reasons, this Executive Order, whatever its other problems or (possible?) merits, is a recipe for egregious grand corruption. Indeed, at the risk of sounding paranoid, I would rate this Executive Order as one of the gravest threats to U.S. government integrity emerging out of the Trump Administration—and that’s saying something.
I enjoyed this post a lot; it gave me some echoes of the “strong” version of the unitary executive theory. I wonder if this move by the President is part of a larger attempt to assert such a power and (somewhat more tangentially) whether a strong unitary executive theory is inherently more susceptible to corruption.
I really appreciated how this post laid out how this new EO was a step farther from the news bulletins of “firing Fauci” to “rule by fiat.” If in the event the election doesn’t turn things around, I do wonder if suddenly the President finds it much easier to fill all those career positions scattered around DC that remained vacant for the entirety of the administration.
Now that we have news that Joe Biden has won, I am curious if he will actually reverse the Executive Order. The Order gives tremendous power to Biden to appoint civil servants who are aligned with his vision and will probably make it easier to carry out his agenda in office. While he may not abuse it in the same way that we fear President Trump will, Biden can still possibly take a narrower approach when it comes to defining who is transferred over to the excepted services.
I tend to think he will reverse it, notwithstanding the fact that it does shift more power to the President. I saw this in part because a big theme of the Biden transition so far (at least according to the reports I’ve seen) will be addressing the demoralization of the professional civil service under Trump. Also, unlike Trump, I think Biden and his people genuinely want a civil service staffed by competent professionals, and while of course they want their people in the top policy positions, I think they’re less concerned with staffing the rest of the government with loyalists. That, at least, is my guess. We’ll know if i’m right in a few months.