Trump’s War on Civil Servants Is Worse Than It Looks

For decades, U.S. government civil servants have had a degree of job security, in the sense that the president, and his political appointees, could not fire them merely because they were not sufficiently “loyal.” That would change under an executive order issued by President Donald Trump that is aimed at undermining the legal protection long given to many thousands of these career employees.

On Jan. 19, 2021, they will apparently become closer to “at will” employees. If the president, or political appointees, want to fire them, they can.

This is a horrible idea — more horrible even than it seems.

A relatively independent civil service, protected against “at will” discharge, serves the national interest. I saw this close-up in 2009, when I joined the Barack Obama administration as administrator of the Office of Information and Regulatory Affairs, which oversees federal regulation in diverse areas that include clean air, clean water, food safety, homeland security, tobacco, health care, occupational safety, disability rights and transportation.

OIRA has a staff of about 45 people, all civil servants. All of them had worked for George W. Bush until Jan. 21, 2009. In the blink of an eye, they were supposed to work for a new administration, with very different values and priorities and with a desire, in many cases, to reverse course as quickly as possible. 

I am sure that some of them thought that, in important areas, the Bush administration had it right, and that the newcomers were quite wrong. Who cared? Nothing got in the way of their professionalism, expertise, commitment to their jobs, and willingness to raise legitimate objections and concerns. 

In some cases, Cabinet heads were in a hurry to issue a new regulation — involving, say, air pollution, road safety or visas. Career staff knew that was probably not allowed under the law — and they were entirely unafraid to point that out. 

I had taught administrative law for a quarter century, but they knew a lot that I didn’t know, about the Regulatory Flexibility Act (obscure but important), about the Paperwork Reduction Act (also obscure, also important), about the twists and turns of the Administrative Procedure Act — and about what all three allowed and didn’t allow.

Theirs wasn’t just legal expertise. It was combined with an acute sense of how to handle policy considerations. They know how to compile a list of options, and how to be transparent to the American people. They also had a keen understanding, based on years in the job, of the potential downsides of shortcuts or seemingly bold initiatives that political officials, including Cabinet heads, might not be able to see.

In a few cases, career staff raised serious doubts about initiatives that the president personally favored. They felt entirely free to do that. Thank goodness! I needed to hear those objections. Whether they were convincing or not, the civil servants identified genuine problems and weaknesses. In important cases, their legitimate doubts led to changes in direction, to the great benefit of the public.

Because I am speaking of my own experience under the Obama administration, I am using the past tense. But many members of OIRA’s staff remain in government. Because of the new executive order, they might be under threat.

To be sure, civil servants are not entitled to run the show. Nor should they be. If a president wants to turn national policy in a particular direction, and if the turn is consistent with the law, that is his prerogative. Civil servants must obey lawful orders from their superiors and act as a part of a team with an acknowledged captain.

But you don’t need Trump’s executive order to enforce those principles. Under longstanding law, the president and his appointees are entitled to discipline civil servants who refuse to do their jobs — and obeying lawful orders is part of their jobs. (In four years, by the way, I never saw a civil servant refuse to obey such an order.)

The best that can be said for the executive order is that it solves a nonexistent problem, a kind of dystopian fantasy, spun from the creative imagination of ideologues. But it’s actually much worse than that. It is imposing an immediate chilling effect on numerous civil servants who would, in the normal course, use their experience and expertise to raise questions and doubts. 

If he becomes president, Joe Biden should repeal Trump’s executive order immediately, as part of a general effort to emphasize that an independent civil service is a national treasure, and that diverse views and professionalism are welcome. What matters is competence and contribution, not loyalty to the boss. 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

©2020 Bloomberg L.P.

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