President Biden signed an executive order in January revoking his predecessor’s attempts to make federal bureaucrats fireable and therefore accountable. This will insulate federal employees from accountability for performance or misconduct, protecting bureaucrats who pursue private political agendas.
What political agendas, you might ask? Career employees at the National Labor Relations Board (NLRB) provide one example of deep-seated bias. After Biden removed Peter Robb, the Trump-appointed NLRB general counsel, a retired regional NLRB director e-mailed Biden’s pick for Robb’s successor:
It is such sweet justice to see Robb kicked out on his ass and you replace him … I know it sets a new precedent which the others were averse to seeing. But this situation was different in my mind because, as we both know, Robb did what he could to hollow out the Agency and ruin it. It was only because of the brave resistance of people like you that he did not do more damage. So I celebrated when Robb was shown the door.
Emails show many other “nonpartisan” NLRB civil servants rejoiced at Robb’s abrupt firing and fawned over Biden’s appointee. Such partisanship was not confined to the NLRB. Even the Washington Post admitted how rampant career employees’ opposition to Trump was.
This behavior proves the wisdom of the founders of our civil service. George William Curtis was the chairman of the first Civil Service Commission and a champion of the Pendleton Act that created the federal civil service. He believed federal job protections would “seal up incompetency, negligence, insubordination, insolence, and every other mischief in the service.” So the 1883 Pendleton Act placed almost no restrictions on removals. Initially, agencies could easily and quickly fire insubordinate civil servants.
That is no longer the case. Today’s civil service rules now require proving a federal employee deserved removal. Employees can then extensively appeal. The full process takes years, and removals are often overturned. This system allows many federal employees to keep their jobs despite egregious behavior.
For example, investigators concluded two prosecutors intentionally concealed exculpatory evidence from Sen. Ted Stevens’ defense team during his corruption trial. The judge overseeing the trial said he had “never seen such mishandling or misconduct.”
But the Department of Justice (DOJ) only tried to suspend — not fire — these rogue prosecutors. Even those efforts failed. The Merit Systems Protection Board overturned the suspensions on a technicality, and the DOJ had to pay $643,000 in attorney fees to the prosecutors’ attorneys.
The U.S. Postal Service fared no better after firing an employee arrested for doing drugs over her lunch break. It was forced to pay her back wages with interest.
Where did these exorbitantly defensive federal job protections come from? Congress initially created them to protect federal jobs for veterans.
During World War II, Congress wanted to prevent agencies from circumventing veteran hiring preferences. So, Congress allowed veterans to appeal when their agency removed them.
But by the 1960s, veterans made up much of the federal workforce; excluding non-veterans began to seem arbitrary. Presidents John F. Kennedy and Richard Nixon subsequently extended civil service appeals to non-veterans. Congress codified these appeals in the Civil Service Reform Act of 1978.
The idea that a professional civil service requires stringent restrictions on removals is unfounded. The federal civil service operated without job protections for more than six decades. Several states operate effectively without them now; Arizona, Georgia, Missouri, and Texas state employees have no job protections. Thousands of managerial staff in Florida’s state government also serve at will.
Unfortunately, the myth that civil service job protections are necessary has undermined our democracy by empowering career bureaucracy. No one votes for these employees, but federal job protections empower them to pursue their personal policy preferences anyway.
In the NLRB example, many small business owners believed the Obama administration overregulated. They liked candidate Donald Trump’s deregulatory agenda. President Trump appointed Robb to implement that plan at the NLRB. But many career staff disagreed with Robb’s mission, and their job protections meant Robb could not replace them with staff who would faithfully execute the elected president’s agenda.
With a protected bureaucracy, Americans can vote for whatever policies they want — but they only get them if the bureaucracy agrees. Trump ran on draining the swamp. Biden is now refilling it.