CHAPTER 1
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CIVIL SERVANTS and SERVANT LEADERS
Unelected public servants are found at all levels of government—federal, state, and local—but the modern model for all is found in the federal employment systems. More specifically, it is in the concept and operation of the federal civil service system, which governs the appointment and tenure of most federal workers. Those who believe that the unelected federal “bureaucracy” is a “Deep State” covertly dedicated to the overthrow of elected government see the civil service as a fundamentally unconstitutional innovation, a monster of very recent creation. Such demonizing mythology aside, the truth is that the origin of the unelected government is found in the Constitution, under Section 2 of Article II. The article defines the powers of the Executive Branch, and the second paragraph of its Section 2 assigns to the president the power to “nominate, and by and with the Advice and Consent of the Senate, [to] appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” Thus the president has the power to make all appointments not otherwise provided for in the Constitution. These are subject to the Senate’s advice and consent unless Congress, by law, vests “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.”
In other words, the unelected government, what I have called the Fourth Branch, is rooted in the Constitution through the powers that it grants either to the president or the Congress. In turn, Congress may grant the president, the courts, or heads of departments power to hire unelected public servants. In all cases, however, the creation of the unelected government flows from the Constitution, the supreme authority and originating law of the nation.
The framers of the Constitution recognized that the elected government of our republic was not in itself sufficient to govern us. It cannot alone get government done. It does not alone possess all the expertise necessary to lead, let alone manage, so vast an enterprise as a nation. If this was true in the late eighteenth century, it is even truer in a twenty-first-century geopolitical and technological environment that is far more complex and that therefore requires a cadre of professionals possessing a wide variety of specialized skills, training, education, and experience. The Constitution does not call these “appointments” and hires a Fourth Branch, but that is what the federal civil service (and other government workers) constitute. De jure—in law—there is no Fourth Branch of US government, yet it unquestionably exists de facto, in practice, in reality, in fact.
Does the Fourth Branch compete with the three constitutionally established branches? No. It coexists with them, as provided for in Section 2 of Article II of the Constitution itself. Those three constitutional branches are absolutely necessary to our republic, but they are not sufficient to it, as the framers acknowledged. Moreover, as I have already observed, for most people most of the time and in most situations, it is the members of the Fourth Branch who are, practically speaking, the government. They are the doers. They implement the policies created and interpreted by the three constitutional branches. What is more, although they do not decide or decree policy, they often influence it—not covertly but by intention and design. The Constitution assigns the Senate the roles of advising on and consenting to most “major” presidential appointments, but members of the Fourth Branch do far more advising on a daily basis when it comes to providing the subject-matter expertise and feedback necessary to formulate and modify policy decisions.
As it turned out, following the coming into effect of the Constitution in 1789, the president, as the chief executive—that is, the elected official responsible for faithfully executing the laws—directly or indirectly appointed the unelected personnel whom he deemed necessary to execute government. Most of the agencies in which personnel of the unelected government served were created by the Executive Branch under Article II. And for a full 170 years after the Constitution was ratified, the president had the unquestioned authority to appoint and to terminate what were, in effect, employees of his branch, the Executive Branch. Indeed, in 1789, Congress explicitly voted—by a narrow margin—that it had no authority of approval or disapproval of presidential decisions to terminate appointees.1 Only those few public positions that were independent of the Executive Branch, which today are known as independent agencies, were not subject to presidential appointment or termination.
In 1829, Andrew Jackson took office as the seventh president of the United States. He was regarded as the apostle of the rights of the “common man,” and he made it clear that he intended to usher in an era of more highly participatory democracy. During his two terms and under his influence, many states substantially extended the (still males-only) franchise by dropping property requirements from the ballot, and Jackson waged a mighty battle against the Second Bank of the United States in a successful effort to loosen credit and thereby free up sources of finance for the common man, especially on the frontier. Of course, slavery received Jackson’s full support, and, under him, the Indian Removal Act of 1830 was implemented, sending many thousands of Native Americans into exile from their eastern homelands to the desolation of “Indian Territory” in and around what is today Oklahoma. Yet, despite its many deplorable aspects, I believe that the profound shift toward greater democracy during the Age of Jackson has been a very good and necessary thing for our nation, as was the debate that Jackson’s presidency ignited over the balance between big government and small government. It is a debate that continues—and should continue—to this day.
Nevertheless, even under Jackson’s drive to expand democracy and thereby his own party’s voting base, the nation’s leaders increasingly realized the inadequacy of the elected government to sustain the republic without help. Under Jackson, the American people wanted more and more things done. They wanted canals and roads and a host of other public works and initiatives. Who was going to grade a road or dig a canal? The members of Congress? Of course not. Jackson’s administration therefore became a boom time for employment in the unelected government. With that boom in demand came a boom in political patronage. Because the president had the power to appoint just about everyone needful in the Executive Branch agencies, he found himself possessed of a powerful means of encouraging and rewarding party loyalty. To those—and there were some—who objected that such a system of quid pro quo was fundamentally corrupt and undemocratic, New York senator William L. Marcy responded following Jackson’s 1828 electoral victory, “To the victor belongs the spoils!” The “spoils of war” is a phrase applied to the goods and benefits the winners of a military battle rightfully seize from the losers. Marcy’s phrase expressed the highly partisan doctrine that Jackson’s electoral victory meant that he and his party now had the right to direct the benefits of government to those who had supported the victorious party. Thus Jackson, who is credited with dramatically democratizing American government, installed the so-called spoils system into American government.
In this spoils system, government jobs were doled out as rewards for campaign work, for political favors, and for special acts of party loyalty. Jacksonian America thus saw the spectacular and necessary growth of a Fourth Branch, but it was far from apolitical and nonpartisan. Quite the contrary: it was populated by partisan flunkies.
The spoils system developed in response to a need for an unelected branch of government, a large cadre of people to implement the decisions and policies of the elected branches. But, as the years passed, it became all too apparent that filling government job vacancies on the basis of political loyalty rather than demonstrated merit (professional, vocational, and subject-matter qualifications and experience) was producing a federal bureaucracy that was neither fair nor competent. As the demands of the Civil War during 1861–1865 produced in the Union a life-or-death urgency in the need for a legion of competent government workers, cries were raised for a level of reform that would create a merit-based civil service system presided over by a nonpartisan civil service board.
After the Civil War, on March 3, 1871, President Ulysses S. Grant signed the first civil service reform legislation. It created the United States Civil Service Commission. Yet it was Grant’s own attorney general, George Henry Williams, who protested that it would be unconstitutional for Congress to require the president to “appoint the persons named by a civil-service board.”2 The 1871 legislation funded the Civil Service Commission for just two years, and in 1874, Congress, which considered political patronage the fuel of political power, failed to renew funding. Still, a reform movement continued to grow; and in 1883, President Chester A. Arthur signed into law the Pendleton Civil Service Reform Act, which in essence mandated that positions within the federal government be awarded on the basis of merit instead of political party affiliation—though, presumably in an effort to avoid constitutional challenge, it did allow the president to “apply the civil service rules where he saw fit,” and it “did not restrict the President’s general power to remove employees.”3 Later executive orders added the proviso that the president was required to have a nonpolitical reason for removing a civil servant from office.
Reform was far from perfect. Even President Woodrow Wilson (1913–1921), twice elected on platforms of progressive reform, found ways to reward his political allies with handsome jobs in government; and, in 1953, President Dwight D. Eisenhower issued Executive Order 10450, which expanded so-called security criteria for government jobs and, without explicitly mentioning sexual orientation, banned gay and lesbian applicants from federal employment.4
Nevertheless, the civil service system continued to evolve toward the objectivity of a truly merit-based system of hiring and promotion that has made the federal Fourth Branch as close to being apolitical and nonpartisan as any element of our government can be. This has not only raised expertise and competence above partisanship in the unelected government but also served to make the Fourth Branch a check on runaway partisanship, adding a much-needed component to the system of checks and balances mandated by the Constitution in the division of powers among three constitutional branches.
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Recall President Washington’s Farewell Address of 1796 and his warning about the “fury” and “despotism” of partisanship.5 Even before Washington completed his second term, the nation’s politics were hardening into two bitterly opposed factions, the Federalists and the anti-Federalists (which became the Jeffersonians or Democratic-Republicans). From the days of president number two, John Adams, down to our own, American politics has been intensely partisan. Indeed, the Article I and Article II offices have been dominated by political affiliation for virtually all of American history. In recent years, the Article III branch, the judiciary, which has no elective offices, has also become alarmingly politicized, as Republican presidents tend to nominate politically and culturally conservative Supreme Court justices and federal court judges, whereas Democratic presidents nominate liberal-leaning judicial candidates. The motive behind such nominations is to pack the federal courts with jurists who are sympathetic to the legislative agenda of one party or the other. When the Senate majority is of the president’s party, he generally gets his federal court nominees approved. When the Senate has a majority in the opposing party, his nominees have a much rougher time of it.
In short, the only branch of the federal government that remains very substantially nonpartisan is the Fourth Branch. Thanks to the civil service system, most of this unelected government is populated by merit-based appointees who are beholden to no president or other elected official. This increases the odds that laws, policies, and programs endorsed or created by the Article I and Article II branches will be implemented objectively, without regard to partisan affiliation.
Objective implementation of law is crucially important, but the three constitutional branches rely on unelected public servants to do even more than implement their decisions. The three constitutionally enumerated branches formulate policy, legislation, and even some judicial decisions based on research, data, and analysis produced by nonenumerated Fourth Branch subject-matter experts, whose allegiance is to fact, to science, to data, and not to party or special-interest agendas.
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As it exists today, the federal civil service—the body of nonelected, nonmilitary employees of the federal public sector—was born out of a spirit of reform, a spirit opposite that of the corrupt intent often ascribed to the “Deep State” and also very different from the increasingly partisan spirit of the elected branches of government. As already noted, more government workers are employed outside the federal system—at the state and local levels—than within the national government. But the US federal civil service, as created in 1871 (5 U.S.C. § 201) and reformed in 1883 by the Pendleton Act (ch. 27, 22 Stat. 403) and subsequent legislation, has served as a model for most aspects of public sector employment in states, counties, and municipalities. So let’s look even more closely at the federal system. What follows is hardly groundbreaking material, but it is a collection of facts concerning a subject about which most Americans know very little, and for all the mythology, demonizing, and trolling that has plagued public sector employees in our recent history, it is useful to take a few moments to look objectively at the system in which they work.
In addition to nonpermanent contract employees—who were among the victims of the 2018–2019 federal shutdown discussed in chapter 2—the federal government hires workers in three broad classifications:
1. Most civil service jobs are in the “competitive service,” which means that these employees are hired on the basis of merit as determined by a competitive hiring process (which often includes diagnostic and subject-area tests) that is open to all applicants.
2. Another classification of nonelected federal employees is the Senior Executive Service (SES). These employees fill senior departmental leadership positions. The hiring process is noncompetitive. Some positions are filled by career employees who began their public sector careers in the competitive service, but others, such as ambassadors and cabinet officers, are political appointees. Although overwhelmingly nonpartisan, the Fourth Branch is not entirely segregated from the elected government.
3. The “unclassified service” (also called the “excepted service”) is a label applied to that category of employees who are hired through noncompetitive processes by agencies that perform intelligence and security functions (CIA, NSA, FBI, Department of State, and so on). Such agencies, which have unique needs, are authorized by law to establish their own recruitment and hiring policies. Like the competitive service, the excepted service is nonpartisan, but its employees are not subject to most of the rules that govern the pay and classification in the competitive service.
Most of the agencies that hire in the competitive service operate under the aegis of the Executive Branch, but others operate under the Legislative and Judicial branches or are independent agencies, which operate outside the federal executive departments and the other branches, but are nevertheless all established by acts of Congress. From the perspective of the employee, the most important power any agency must have is the authority to hire and to pay. That is, the agency must be a “hiring authority” or operate under one. Hiring authorities may be created directly by federal statute, by an executive order of the president, or by an agency regulation. The authority of an agency to create regulations (including regulations authorizing hiring and payment) is granted by congressional legislation. Even though the regulations themselves are not direct acts of Congress, they carry the force of law. At present there are more than a hundred hiring authorities in use in the federal government, though more than 90 percent of the hiring is done by just a few of the hiring authorities, the most active of which is Competitive Examining, the authority that handles the federal vacancies open to the public. Fairly close second behind Competitive Examining is an authority called Department of Veterans Affairs, Title 38, which noncompetitively hires personnel in the medical profession for the mammoth Department of Veterans Affairs.
Those who attempt to demonize the civil service portray it as a kind of permanent gold rush, the mother of all government boondoggles. It is, in fact, highly regulated and subject to complex but strict pay schedules. The most familiar is the General Schedule (GS), which has fifteen pay grades for white-collar workers, who do most of the technical, administrative, clerical, and professional jobs in the civil service system. GS-1, the lowest grade, ranges between $18,785 and $23,502 as of 2018; and the highest grade, GS-15, pays between $105,123 and $136,659. Blue-collar workers are subject to the Federal Wage System, with wages, often hourly, dependent on a variety of factors. The SES, in which positions are appointed, can pay as high as $189,600 annually.
The federal workforce is widely unionized, which has often been a bone of contention between Congress and the White House. Most recently, President Trump issued executive orders aimed at reducing the collective bargaining authority of federal unions and empowering “every Cabinet secretary with the authority to reward good workers—and to remove federal employees who undermine the public trust or fail the American people.” J. David Cox, president of the American Federation of Government Employees, countered that the executive orders were “an attempt to make federal employees at-will employees, so you can make them political employees, so you can hire anyone who had a bumper sticker for you in the last election.”6 Four unions sued, arguing that the president was attempting unilaterally to dictate new terms to labor contracts already negotiated and in force. A federal judge agreed, striking down the executive orders on August 25, 2018.7 Whatever this decision does to uphold the power of unions in the federal government, it also tends to uphold and protect the nonpartisan nature of the unelected government.
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The president’s failed executive orders were only the latest symptom of the distrust, suspicion, and even contempt some in the elected branches harbor toward the Fourth Branch. These attitudes drive efforts to reduce the federal workforce and to politicize as much of the remainder as possible. Some in the Executive and Legislative branches have asserted that the civil service is already highly politicized, arguing that most of the workers are Democrats. This is simply not the case nationally. Red states, not blue, are home to the highest concentrations of public employees.8 Moreover, the Hatch Act of 1939 (53 Stat. 1147) expressly bars civil servants from engaging in political activities while in performance of their duties.9 For SES positions, which are political appointments, some outgoing presidents near the end of their term have been known to engineer the transfer of appointees, who serve at the current president’s pleasure, from the SES to positions protected by civil service law, thereby preventing the incoming administration from dismissing them. Called “burrowing,” this practice is intended to continue at least some of the policies of the outgoing administration under the new one.10
Nothing is perfect. Politics does seep into the unelected government. Yet, by and large, this area of government manages to remain remarkably free from partisan politics. Some argue, however, that its removal from the political sphere is not a virtue at all but creates an air of entitlement and aloofness that amounts to arrogant disregard of the will of the people. Perhaps the unelected government is not a Deep State, this argument runs, but an Administrative State, incorrigibly unaccountable and unresponsive. Although frequently heard today, this charge dates back at least to 1948, when the phrase Administrative State was used in the title of a book by political scientist Dwight Waldo: The Administrative State: A Study of the Political Theory of American Public Administration.11 Scholars who study the nature of modern government consider this book groundbreaking even today, because Waldo, who was highly sympathetic to the federal workforce, nevertheless wrestled with what he acknowledged as an inherent ideological conflict between “public administration”—the unelected government—and the elected government of our constitutional participatory democracy.
Writing just three years after the Allied victories against Germany and Japan, Waldo was among those many Americans who had seen, close up, just what the Fourth Branch could accomplish. In a brief speech delivered on November 10, 1944, President Franklin D. Roosevelt thanked “the Government workers . . . for all that you are doing to win this war.”12 The president understood and appreciated that the unelected government, civilian as well as military, was making the Allied victory in World War II a reality. By the time Waldo wrote the first edition of The Administrative State, that same group was already going about the business of rebuilding the parts of a world shattered by the war.
But Waldo also stood witness to a growing movement to make the Administrative State more cost-efficient by modeling itself on principles of modern business administration. The first step in this process, critics said, was to make the bureaucracy scientifically efficient. Indeed, this goal sounded like too obviously good a thing to plausibly argue against. Waldo, however, saw a flaw in an apparently self-evident argument. He wrote that the goal of the Administrative State could not be the goal of private enterprise—that is, scientific efficiency—because the purposes and priorities of democratic government were not the same as those of business. The purposes and priorities of the US government were derived not from the principles of profit but from the Constitution. Waldo believed that the Administrative State, although unelected, was obliged to adhere to the same principles as the elected government, including those either enumerated or implied in the Constitution. The conundrum in this position was that such adherence did not always promote or even permit scientific efficiency in a strict business sense.
Waldo defined a key distinction between those who work in the Administrative State and those who work in the private sector. As Robert Peel’s London police differed from the general public only in that the police were “paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence,” so Waldo’s workers in the Administrative State were ordinary citizens who were paid to give full-time allegiance to constitutional values that are incumbent on every citizen. As Waldo saw it, a clerical worker in an industrial plant owed the nation fidelity to the Constitution, but to his employer, he owed nothing more or less than efficiency. By contrast, a clerical worker in the federal government above all owed his nation and his employer (they were, after all, one and the same) fidelity to the Constitution as the first priority of how he did his job.
Waldo was well aware that government could be more efficient. Of all the European dictators in the run-up to World War II, Italy’s Benito Mussolini lasted the longest, from 1922 to 1945. Before the outbreak of the war, he was widely admired, including by US presidents, legislators, and ambassadors. His brand of totalitarian government, called fascism, produced unprecedented efficiency in a nation that had long been a punch line for institutionalized inefficiency. When some objected to fascism’s brutally autocratic tactics, others reminded them that “Mussolini made the trains run on time.” It became a catchphrase of the 1920s and 1930s. The dysfunctional Italian railroad system was an icon of Italy as a failing state. Mussolini’s rehabilitation of the nation’s rail system was a symbol for what many believed was his overall rehabilitation of disordered Italy and its wayward economy. By 1948, the United States had triumphed over Mussolini, Hitler, Japan’s Tojo, and other totalitarian dictators. America was now engaged in a Cold War against another totalitarian state, the Soviet Union. Dwight Waldo was unwilling to sacrifice constitutional democracy to mere efficiency. He wanted to explain how the Administrative State and those employed by it resolved the tension between the elected and unelected government by serving first and foremost the values of the Constitution.
Waldo’s argument was this: On the one hand, to the degree that the Administrative State put scientific efficiency ahead of the Constitution, it would create an unelected government incompatible with democracy, a bureaucracy verging on fascism. On the other hand, to the degree that the Administrative State put the values and mandates of the Constitution ahead of efficiency, it could, Waldo admitted, end up creating certain bureaucratic processes that, in a strictly business sense, were somewhat inefficient. So, he conceded, critics of the Administrative State had a point. The unelected government does not run strictly like a business, and, measured by profit and loss, it is far from fully efficient. But measured by the values of our constitutional republican democracy (which do not include making a profit), the Administrative State was necessary not only to executing and implementing the decisions of the elected government but also to ensuring that the execution and implementation uphold the Constitution and thereby avoid descending into autocracy or totalitarianism.
Today, Dwight Waldo’s reasoning is something of a hard sell, but he was born in 1913 and was of a generation that had passed their young adulthood not only during the Great Depression but during the era of the first American “big government,” the government of Franklin D. Roosevelt’s New Deal. Squeezed in the economic vise of a failing national and international economy, the majority of Americans were willing to believe that big government—with a large Administrative State—was both benevolent and capable of restoring and promoting the general welfare of the United States. As a public servant who has led public servants, I can tell you that most of them would have no trouble buying what Dwight Waldo was selling. Like him, they believe that, as government employees, they do more than a job. They have a public mission. Although their “branch” of government is not mentioned by name in the Constitution, they understand that it is a pillar of that document as well as of the government that document supports.