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Why the president can’t just fire bureaucrats

The "unitary executive theory" has its limits

- September 20, 2023

The 2024 presidential campaign will be about many policy issues – immigration, inflation, indictments – but underlying all of them will be a vision of presidential power. So far, whoever wins, the future presidency looks to be “imperial.” In some versions even “infinite.” After all, Donald Trump claimed in 2020 that as president he had “total authority,” building on his famous assertion that “I have an Article II” granting “the right to do whatever I want as president.” Moving forward, Trump wants to do quite a lot, including impounding congressionally-mandated spending (perhaps to “defund the FBI”) and denying citizenship to those born in the United States.

Other Republican hopefuls have promised to bomb and/or invade Mexico and to reverse the Watergate-era reforms that sought to depoliticize the Justice Department. For his part, while President Joe Biden has conceded limits on executive authority, he has also tested them, with aggressive administrative action in domestic policy ranging from immigration to student loans, as well as with regards to the war powers.

Do these pledges and initiatives rest on, ahem, Good Authority? Our launch provides an excellent opportunity to wander across not just Article II but the rest of the U.S. Constitution and a wide swath of American history as well. Since my GA overlords feel (surely wrongly) that your interest in this topic may not be as capacious as the internet, we’ll work in installments. After all, as Lyndon Johnson once said, “you can put a lot of whiskey into a man if you just let him sip it.”

Let’s start by sipping a basic question: Can the President fire everyone? Vivek Ramaswamy pledged recently that he would use executive authority to reduce the federal civilian workforce by more than a million employees during his first year in office – half the government’s total person-power – while eliminating entire agencies and reorganizing others. Florida Gov. Ron DeSantis ramped up the rhetoric from pink slip to Red Wedding: “All of these deep-state people, you know, we are going to start slitting throats on Day 1,” he promised New Hampshire voters in August.

But no bloodbath is imminent, unless Congress sharpens the knife. That is certainly the case when it comes to a president’s ability to unilaterally reshape the size and structure of the executive branch. Congress created that structure in law, reauthorizes it, and (government shutdowns aside) funds it. To wipe out budgeted personnel would amount to impoundment – the subject of a future post, but – which both law and Supreme Court precedent prohibit. By the way, close to half the civilian workers in the entirety of the Cabinet-level departments are employed just by the Pentagon (about 750,000 civilian employees as of March 2023) and the Department of Homeland Security (about 216,000).

Ramaswamy claims language in the 1977 Reorganization Act allows the president to “abolish” an agency. But the operative parts of that law expired decades ago, in 1984; the most recent credible attempt to restore them was abandoned in 2004. And even when in effect, according to the Congressional Research Service, the 1977 act included prohibitions “on the abolition of any enforcement or statutory program” and against “establishing, abolishing, transferring, or consolidating” departments or independent agencies. Ramaswamy quotes language left over in the U.S. Code telling the president “to determine what changes in [executive] organization are necessary.” But this is a mission statement, not a mandate. It does not translate the president’s assessment of the matter into a new organization chart without congressional approval. Even the expired statutory sections that follow the quoted language required that a presidential proposal receive affirmative votes by both chambers of Congress.

Political appointees do serve at “the pleasure of the president,” and the president can fire them. But the vast majority of federal officials are career employees hired on a competitive basis and with protections against being dismissed at will or on partisan grounds. The idea is to promote political neutrality and substantive expertise in government. This ethos grew in fits and starts from the corruption of the “spoils system” and took a huge step forward with the creation of a Civil Service Commission in 1871 and the Pendleton Act of 1883. 

Adherents to the strongest form of “unitary executive” theory argue that any member of the executive branch must be under direct presidential control. Since (the argument goes, as in this memo by former attorney general William Barr), the Constitution vests “the executive Power” in a single president, any authority exercised by any other member of the executive branch is at least implicitly delegated by the president to that official. If so, the president must be able to fire her if she does not comply with the president’s preferences. Perhaps it is even unconstitutional for Congress to impose any limits on presidential control of any part of the executive branch.

Now, a long history of jurisprudence suggests that Congress can in fact insulate some positions from political control, requiring that they be removed only for cause. This includes members of regulatory boards like the Federal Trade Commission and “inferior officers” who don’t need Senate confirmation – like civil servants. The executive removal power is not, in fact, “illimitable.”

But that doesn’t mean it can’t be tweaked. Project 2025, a plan developed by the Heritage Foundation and other groups for a Republican president to enact, would revive an October 2020 Trump executive order (rescinded by Biden in January 2021) creating a new “Schedule F” category of federal employees. That would require career civil servants engaged in a range of “substantive policy-related work” to become something like at-will employees. While they could not be hired or fired explicitly on the basis of their political affiliation, they could be installed without a merit-based competitive process and could be readily removed.

The Schedule F proposal does not eliminate the civil service – but would merely reduce (likely dramatically) the number of employees who could claim its protections. There is precedent for using executive orders to add new categories to the ranks of federal employees “excepted” from the merit system, as Dwight Eisenhower did in creating “Schedule C” employees in 1953 to provide a home for political appointees’ closest aides.

The scope of Schedule F will certainly lead to legal challenges: Arguably, it changes the law rather than merely changes how it is implemented. To bolster that position, the Biden administration recently announced new personnel regulations guaranteeing continued job protections for workers whose positions get reclassified. Still, that rule could itself be overturned if a new president were to strip those protections once again.   

Bureaucratic politics frustrate all presidents. Their challenge is to manage the executive branch, not to level it. After all, as public administration scholar Donald Moynihan puts it, “it turns out you do need expertise, technical skills and policy knowledge to run a large, modern and complex federal government.” And political scientists have shown that partisan responsiveness and substantive competence tend to be substitutes for each other, not complements. “Obliterating” those ruled by statute rather than presidential whim may be satisfying. But it is unlikely to lead to good governance.

Image: Photo courtesy of © Trev Adams from Pexels via Canva.com