Does Trump have the right idea for dismantling the Deep State?

The cornerstone of Donald Trump’s “plan to dismantle the deep state” is to assert the power to fire senior civil servants at will: “First, I will immediately reissue my 2020 executive order, restoring the president’s authority to remove rogue bureaucrats. And I will wield that power very aggressively.

Trump’s diagnosis is partially correct, but his reform proposal completely misses the point. He is right that instead of a “merit system”, the federal civil service has become a kind of anti-merit system:

• Federal employees are largely unaccountable: 99% of federal employees rate themselves as “completely successful.” Poor performers are virtually impossible to fire, even if they are caught surfing porn sites.
• Many federal workers are also unmanageable: Supervisors must work together to negotiate with “union representatives” basic management choices – who does what, even who sits at what desk.
• Federal officials can subvert lawful directives from political officials under the pretense of following a bureaucratic maze. True believers in agencies simply wait until the next election to make a decision. There’s an acronym for it: Webehwyg (We-be-wig): “We’ll be here when you’re gone.”

Trump’s proposed Schedule F addresses only one of these flaws – bureaucratic subversion. By giving Trump the power to fire senior government officials for almost any reason, Schedule F goes too far while doing too little. The proposed change should aspire to be a “merit system” rather than a new spoils system, and must be much bolder to attract the talent needed for 21st century government.

Schedule F goes too far. Trump’s executive order will move 50,000 or more senior officials to the new Schedule F, which covers “at-will” workers.

Schedule F assumes that public employees should do whatever the president wants. However, government officials have a dual loyalty – they honor the direction of political leaders within the limits of law and ethics. The “merit system” requires a culture of professionalism in which civil servants are held accountable for performance but also protected from partisan retribution.

Instead, Schedule F would create an ethos of fear by urging senior officials to behave like toads – to follow whatever the president orders, even if it contradicts facts or science. This is not an abstract concern for Trump, as the “Sharpiegate” incident showed when he pressed weather officials to confirm his false claim that Hurricane Dorian would hit Alabama and when he tried to get FDA officials to reauthorize the use of hydroxychloroquine for the treatment Covid.

Schedule F also allows the president to hire senior civil service officials regardless of qualifications. The main flaw of the 19th-century spoils system was seen as imposing serious public obligations on bumbling political hacks rather than their partisanship. It’s hard to see how a new version of the spoils system is in the public interest.

Schedule F doesn’t do enough. Annex F in no way strengthens the power of senior civil servants to manage employees below them. Complex legal procedures, for example, require a supervisor to prove in a grievance procedure that Mr. How can a supervisor prove bad attitude or bad judgment? Staff ratings can be easily verified by other colleagues, but they are sentences, not objective facts. The near impossibility of proving ineffectiveness results in almost zero liability.

The main harm of lack of accountability is not the mass of poor performers, but a depressed public culture. Mutual trust is difficult when everyone knows that results don’t matter.

“We see deep dissatisfaction in the public service,” concluded the 2003 Volcker Commission. “They don’t like the protections afforded to underperformers, making their jobs harder and tarnishing the reputations of all government workers.”

Schedule F also does not remove the stranglehold of union collective bargaining, which requires separate negotiation of even minor management choices – such as software update training.

Modernizing the Civil Service by Executive Order. Like outdated infrastructure, the structure of the US civil service should be largely thrown out. Designed to allow clerks to process forms, then changed in the 1960s to appease federal unions, the civil service system is a rusty industrial-age machine, disconnected from efficiency and repugnant to highly skilled workers. The mandate to overhaul the civil service was first made in 1989 by Paul Volcker, but numerous reform proposals have gone nowhere due to congressional indifference and union opposition.

Trump’s Schedule F, while limited, points the way to a bolder approach – beginning to overhaul the civil service by executive order. By asserting the constitutional powers of the executive branch, the president may relinquish rigid congressional and trade union control and provoke a constitutional complaint to be resolved by the Supreme Court. The dispute will also likely put civil service reform out of the closet and onto the Congressional agenda.

The Constitution’s Article II states that “executive power shall be vested in the President.” Numerous Supreme Court decisions have limited Congress’s ability to interfere with the “executive branch” regarding personnel decisions. Under these rulings, the president can disavow key aspects of civil service law, including refusing to abide by:

• detailed disciplinary procedures that prevent termination, punishment or even fair evaluation of work performance;
• collective bargaining forces that prevail over managerial power; AND
• mechanical recruitment procedures that displace good candidates.

Instead of these statutory provisions, the president, through executive order, could provide a framework to advance the goals of the merit system—generally, empowering officials to take responsibility and empowering other officials to hold them accountable. Protection against unfair personnel decisions can be achieved by delegating oversight authority to an independent group or committee, rather than through legal processes.

Congress will continue to kick the can until forced to act. Transforming the civil service by executive order could prompt Congress to make a long-awaited modernization of the government’s operating machinery.