A Civil Service for the Twenty-First Century

In 1881, a president was assassinated over the future of the civil service. James Garfield, who believed in civil service reform, was shot by a syphilitic maniac, Charles Giteau, who […]

In 1881, a president was assassinated over the future of the civil service. James Garfield, who believed in civil service reform, was shot by a syphilitic maniac, Charles Giteau, who was enraged at not being given a government job. The debate that partially led to the assassination in some way mirrors our current debates over the nature of the executive branch, and its resolution offers some guidelines we could do well to follow.  

Garfield had opposed what was called the “spoils system” (from Andrew Jackson’s claim, “to the victor belong the spoils”) where supporters, friends, and relatives of the electoral victor were rewarded with government jobs. Giteau delusionally thought he was deserving of such reward, and shot Garfield with at least a hope of Vice President Chester A. Arthur returning to the system. Arthur had been a beneficiary of the spoils system, and his place on the ticket was a sop to the “stalwarts” who supported it (Garfield’s supporters were called “half-breeds.” It is a shame our political labels are not so colorful today.) 

Yet Arthur, the accidental president, proved not to be quite so stalwart. Garfield took many weeks to die, and Arthur filled those weeks with soul-searching and remorse, spurred on by the beginnings of a long, one-sided correspondence with a young woman from New York, Julia Sand. Miss Sand urged Arthur to take up Garfield’s aim of civil service reform, and that is the path he chose, working with Congress to pass the Pendleton Act, which ensured merit-based appointments. The fascinating story of Arthur and Sand is told in a new documentary from the Competitive Enterprise Institute, Dear Mr. President. 

At issue today, however, is just how responsive the civil service should be to the president. It is generally accepted that the federal civil service is inefficient and that bad performers are almost impossible to fire. Moreover, Republicans have been complaining for decades that career civil servants are often obstructive to political appointees’ attempts to introduce change. This has led many to allege the existence of a “deep state,” an unelected branch of government that pursues its own ends regardless of the results of elections, and which actively seeks to undermine the efforts or even legitimacy of actions performed by political appointees. 

Even if the “deep state” does not exist in the way its critics allege, there is clearly something wrong with the way the career civil service operates, as these complaints are only ever one way (Democrat political appointees generally seem to get their way.) Moreover, there are genuine questions as to the constitutionality of the career civil service. The President is supposed to have the power to appoint such officials; the appropriate part of the appointments clause of the Constitution (Article II, Section 2, Clause 2) reads, “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.” This was clearly envisaged to allow the President to staff the executive branch as he sees fit. 

It follows that arrangements that restrict this power, particularly when it comes to firing officials, raise constitutional problems. We are seeing this play out in the job security of commissioners and other officers of so-called independent agencies right now, where the President has fired such officers to whom Congress gave a degree of protection by law. Given the precedents of Free Enterprise Fund and Seila Law, it is likely that the Supreme Court will uphold these firings. 

However, the biggest obstacle to the President firing obstructive inferior officers is generally not a law protecting the positions specifically but the existence of union contracts, negotiated between government as employer and the employee unions, governed by the National Labor Relations Act. This has been the case since President John F. Kennedy issued an executive order in 1962 that allowed federal employees to join labor unions. Since then, government unions have not just rewarded their employees with job security and higher than average pay, but have become an important lobbying force, driving the move towards bigger government, which means more federal employees and therefore more union dues. 

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