Firing Government Employees Is Too Hard; the Constitution Intended for It to Be Easier

It’s hard to get rid of a career bureaucrat, even at the managerial level. “After you’ve been here for a year, it’s easier to kill you than fire you.” That’s what my co-workers at the Bureau of Labor Statistics would tell me on a sunny day, after we’d used up our lunch hour, but wanted to walk around the National Mall rather than go back to work. I was reminded of this when I learned that not one IRS employee has been so much as reprimanded for their role in making incredibly burdensome, intrusive, and unconstitutional demands for irrelevant information from non-profit groups critical of the government. (By contrast, the head of the IRS was forced to leave his position a month earlier than he wished, in a presidential “firing” designed to create the illusion of accountability.) As Reason magazine notes:

The IRS has admitted to sitting on applications for tax-exempt status by Tea Party groups for political reasons.

According to the government’s own investigation, applications containing terms such as Tea Party and Patriot were singled out for delays and holds even as groups with liberal-sounding names like “Bus for Progress” and “Progress Florida” sailed through the process.

President Obama said “the report’s findings are intolerable and inexcusable” and even fired the acting head of the Internal Revenue Service.

But “intolerable and inexcusable” doesn’t mean any consequences, at least not yet. Lois Lerner, the director of the IRS Exempt Organization Division, is now pleading the Fifth Amendment to avoid answering any questions. (Even left-leaning fact-checkers say she has lied to the public.)

But the IRS managers and employees responsible for this “inexcusable” conduct may escape punishment. If President Obama secretly doesn’t want to fire IRS employees for harassing his political enemies, he could cite civil-service protections that make it harder to get rid of bad employees, as an excuse not to fire them. That’s true even if his administration could, with difficulty, terminate them. (Some federal employees do get fired for misconduct, but the percentage is tiny and insignificant compared to the private sector termination rate. As the August 8, 2000, Houston Chronicle noted, few employees with ‘‘poor’’ ratings ever get fired.  Civil-service employees ‘‘are almost impossible to fire,’’ said the November 30, 1992, San Francisco Chronicle, although it was talking more about incompetent employees than those who engage in misconduct.)

What the IRS did may be intolerable to Republicans and Independents, but not to a great many Democrats, who harbor an exaggerated fear of the Tea Party, based on false claims that it was a well-funded astroturf movement created by the Koch Brothers and other hobgoblins of the progressive mind. The IRS’s inquiries seem to have turned up no evidence of any such astroturf conspiracies (news coverage makes plain that the Tea Party groups investigated by the IRS were mostly shoestring operations run by poorly-funded political novices with barely enough money to warrant seeking tax-exempt status). But federal tax dollars went to promote such conspiracy theories, giving them an official government seal of approval, and perhaps influencing impressionable IRS employees and managers to harass them and other groups. (Although the IRS also investigated other groups, such as those that “criticized how the country is being run,” opposed deficit spending, or taught about the Constitution.)

The IRS’s discrimination against non-liberal groups is probably nothing new, but perhaps more pervasive under Democratic presidents (such as FDR, whose son says that he was likely the president who began the practice of using the IRS against a president’s political enemies). Even under past Republican presidents, liberal IRS bureaucrats have audited many conservative D.C. non-profits, such as one I used to work for, with little apparent logical reason for doing so, and no resulting tax liability or increased tax collections. As the Washington Examiner‘s Tim Carney notes, the IRS is a liberal-dominated agency.

Under the original meaning of the Constitution, a president, or his alter egos (like a cabinet secretary) could simply fire many of these miscreants, as matter of constitutional prerogative, regardless of what statutes or civil-service regulations say. (The Constitution’s Appointments Clause gives the president, or heads of departments, the ability to appoint “Officers of the United States,” a category that includes any federal employee with significant authority. In its Myers decision, the Supreme Court interpreted that to mean that the president and heads of departments can fire federal officials, such as postmasters, without cause, and replace them with new appointees.)

So a Republican president who wanted to keep left-leaning IRS managers from harassing conservatives could use the threat of termination to dissuade them from doing so. And if they did so, a Democratic president could not use the excuse of civil-service protections to not fire them, and civil-service regulations making it hard to fire government employees would not provide him with plausible deniability when he refused to rein in abuses by his political supporters at the IRS. The Constitution itself would override contrary civil-service regulations barring discharge at will.

But over the past few generations, the courts have weakened this tool in several ways. First, many lower courts have defined who is an “officer” covered by the Appointments Clause more narrowly, dramatically shrinking the percentage of federal employees who are deemed “officers” and thus subject to at-will termination. Second, the courts have allowed “inferior” officers (as opposed to “principal” officers) to be protected against at-will termination in various situations, making it harder to fire them. (Although CEI did manage to get the Supreme Court to strip members of one regulatory body of their protection against at-will termination in a 2010 ruling, that recognized that firing is an indispensable tool of accountability.) Third, they have assumed the validity of civil-service regulations protecting against at-will termination, even for senior civil servants who wield significant executive authority, like those in the Senior Executive Service, who plainly are terminable-at-will “Officers of the United States” in a constitutional sense. (As the November 30, 1992, San Francisco Chronicle noted, even government managers who ‘‘head up” a “nationwide or department wide program” have received civil-service protections, despite their role in setting government policy and the consequent need for them to be politically accountable.)

Under early Supreme Court decisions, it is clear that IRS managers, and even a few IRS employees with no subordinate, would qualify as terminable at-will “officers of the United States.” As I explain in this law review article, early Supreme Court decisions classified as fireable officers ‘‘thousands of clerks’’ and an ‘‘assistant surgeon,’’ not just managers.

Perhaps the original broad concept of who is an “officer” subject to plenary discharge needs to be restored. Assuming that Republican and Democratic administrations regularly alternate in power in the future (which is admittedly not guaranteed to happen, given recent demographic changes that favor the Democratic party), allowing agency managers and supervisors to be fired at will with each new administration would prevent agencies from being taken over by left-wing subcultures and interest groups. It would thus lead to more ideological balance and diversity at agencies like the Justice Department’s Civil Rights Division, and the EEOC, which are overwhelmingly liberal, and hostile to conservative employees, even in Republican administrations (the Obama Justice Department hired 113 progressives or leftists for 113 openings. But their applicant pool is so left-leaning that even if they had hired without regard to ideology — which they didn’t — probably 90 or more of the hires would have been left-leaning anyway).

A broader definition of “officers” would give Department heads in a conservative administration the ability to pick managers who support their policies and are willing to carry them out without foot-dragging. That would enable them to give the voters the very policies they voted for (in the same way that left-leaning administrations can count on civil servants to carry out their policies without foot-dragging. (When I worked in the Education Department, some of the left-leaning career employees could scarcely conceal their disdain for the political appointee who headed the office, an experienced litigator who had argued landmark civil-liberties and civil-rights cases. They also did what they could to impede circumvent effective oversight. By contrast, those employees worked faithfully to advance the goals of left-leaning administrations.)