Friday, February 03, 2017

Destroing the civil service: An essential step toward entrenching our constitutional dictatorship

Sandy Levinson

Philip Howard, a lawyer who hates lawyers, has published a piece in the Wall Street Journaltitled "The President's Right to Say 'You're "Fired.'"  (The article is behind a paywall, but the link is to another site that includes the relevant text.)  As one might expect from the title, it calls, basically, for the repeal of all existing civil service protection for federal workers in the name of the vaunted "unitary executive" and the tendentious reading of Article II that requires that the President be allowed to fire any and all federal employees he doesn't care for.  (To be fair to Howard, he does suggest that the existing system of protections, dating back to 1886, be replaced by a "new civil-service framework [that] is fair-minded and respectful."

I am hesitant to defend the current civil service system in each and every respect.  I am willing to believe that it should be marginally easier to get rid of some of our public employees.  But, of course, Howard is not talking about marginal improvements. And, equally obviously, he gussies up his hatred of America's hard-working bureaucrats, who are devoting their lives to public service, in the mantle of constitutional argument that ultimately gives the President (and minions like Steve Bannnon and Steven Miller, neither, of course, confirmed or otherwise subject to any congressional accountability, the kind of control over the administrative state that dictators yearn for.  To call Mr. Howard (whom I do not know) a "useful idiot" for the Trump would-be dictatorship is no doubt ungenerous and incendiary.  But anyone making such arguments in the age of the Trump-Bannon presidency should be aware of what the implications are of empowering this President (and his minions) at this time.  To take such an argument seriously, at this time with this President (and his minions) is not only to reject the Resistance, but, indeed, to join the most completely lamentably important authoritarian political movement in our entire history.  Vladimir Putin no doubt would agree with every sentence of Howard's screed--and might even accept the anodyne assurance that a "fair-minded and respectful" set of protections would be substituted for what now exists.  But, as Antonin Scalia might have put it, "Do not be fooled."  This is part of a systematic agenda to destroy the very possibility of a a professionalized civil service whose members would not spend their days quaking about the possibility of hearing "you're fired" from an ignorant sociopath like the current occupant of the White House  (at least when he chooses to remain in Washington rather than imposing enormous security costs on the good people of New York when he moves to his Versailles-like palace on Fifth Avenue.


A feature of fascist or authoritarian states is often a civil service or "professional" bureaucracy based almost solely on loyalty to the leader or leadership cadre; competence, integrity, dedication, talent, are all secondary to complete acceptance of any order from cadre. Perceived disloyalty is dealt with harshly and loyalty rewarded with yet another day of existence.

Sorry... that got a little dark... but hey, there it is...

Destroying the civil service, (If by that you mean putting them on the same 'at will' basis virtually everyone in the private sector lives with.) is actually the first step in taking control of the government away from the unelected mandarin class, and giving it back to the people the public elects. Restoring functional democracy.

I actually saw somebody seriously refer to the elected branches as "the provisional government", and the unelected bureaucracy as "the permanent government"; How warped is that?

One way in which The Donald controlled his image/brand is by means of non-disclosure agreements. Apparently he did not have such an arrangement with the actual writer of "The Art of the Deal" which was the foundational support for Trump's base's claims of his business acumen, although it's not clear that the base actually read the book rather than probably merely of the book. A president Trump might wish to control federal government employees by the same means as he controlled "The Apprentice." Brett seems to be suggesting that those of Trump's base who are actually working have at will employment arrangements and if that's good enough for them, it's good enough for government employees, giving power to the elected mandarin orange to fire whomever he wishes for any reason.

The framers specifically chose to have government employees swear an oath of fealty to the Constitution, rather than the supreme leader has was customary, in order for government officials to serve as a further check on the President. This was part and parcel of an intent to limit the active policy making of the new "chief magistrate," who was to have only an executive role. I develop the concept of a the framers' theory of executive power in Toward a Duty-Based Theory of Executive Power, 78 Fordham L. Rev. 71 (2009). So, the modern experience that independent government employees are an important bulwark against dictatorship jibes with original intent.


The actor John Hurt just died so I'm checking out a couple movies of his, including "The Naked Civil Servant." Perhaps, an apt concept these days.

The oath/affirmation referenced in a comment is a good point, one spoken even by lowly federal employees such as a temporary postal mail handler. Perhaps, a good bit of ceremony or theater would be citizen oaths/affirmations. I realize some like two people here strongly disagree with aspects of the Constitution, so maybe they rather not do that, but as a whole, it might be a good idea.

To forestall confusion, a broad scope of non-governmental workers are not purely "at will," states and the federal government setting up various limits on reasons to fire. The U.S. Constitution provides particular limits protecting governmental employees, such as the First Amendment protecting the freedom of association and freedom of speech (at least outside of the place of employment).

"The people" ratified the Constitution and vote for the people who put in place civil service regulations. Not sure how "functional democracy" is complicated here, especially since it never included directly electing federal employees as such. Removing a career member of the military, e.g., in 1815 or something for no cause, that is "at will," was not necessary for "functional democracy."

Removal for cause is allowed and there are a range of political appointees that can be directly removed. Not very "warped" to many people. The average person in fact doesn't find much wrong with the bureaucracy, not thinking much of the local postal clerk not being able to be fired because her politics are conservative while the new President is liberal. They in fact probably think that's a good system. ymmv.

There are usual grumblings when someone deemed unfit stick around because of civil service protections, like a teacher that seems to be unqualified or in violation of the rules etc. But, like other due process protections, the same people often don't want less protections if it is themselves or someone they care about at issue.

Some feel there is too much bureaucracy, but they don't mind various public services that require it. And, they keep on voting in people who basically continue them, so I guess we should respect the will of the people there. Of course, the electoral system is imperfect in various ways, so there is reason to use an asterisk there.

A minority disagrees, but elections have consequences and all that.

When does it cross the line? When the bureaucracy decide that they're going to start investing in encryption and forming cells so that they can oppose both elected branches without getting caught, maybe?

The bureaucracy is there to effect the will of the people, as expressed by those who they voted for. If they've gotten to thinking they're safe enough to do the opposite, they've got too much protection.

"The bureaucracy is there to effect the will of the people, as expressed by those who they voted for. "

You're channeling your inner authoritarian demagogue follower. They take an oath to obey the constitution, not the people or any elected leader Brett. If the orders of the latter conflict with the former they're supposed to go with constitution.

For a brief interlude in honor of Kellyanne Conway check out this link to Louis Armstrong's "Long Gone John from Bowling Green":

Wink, wink, we know who's her John.

Howard's proposal is a perfect example of the idiom of being unable to see the forest for the trees. The problem Howard seeks to address is the unconstitutional dictatorship of the absolute bureaucracy, not imperious individual bureaucrats. If you strip the bureaucracy of its absolute power, then the power exercised by individual bureaucrats is merely ministerial and largely harmless.

The progressive civil service reforms were one of the few policies of that political economy which should be preserved. While a president does not become a "constitutional dictator" if given the power to hire and fire executive employees, it is an obvious invitation to corruption.

I know the reference involves Kentucky, but "Bowling Green" is also a place in lower Manhattan. A few of the digs made reference to that.

When does it cross the line? When the bureaucracy decide that they're going to start investing in encryption and forming cells so that they can oppose both elected branches without getting caught, maybe?

Yes, I'm sure my local postal clerk is doing that as we type. Also, raising the stakes so that it is more akin to a "dictatorial" or "fascist" state -- ala Communist Europe -- you are going to make such "cells" more likely.

Of course, there is a First Amendment in this country, and they can "oppose" both elected branches in various ways. Also, they did swear/affirm to the Constitution and laws of the country, so yes, if the "elected branches" tells them not to do so, they have a duty above that. "Following orders" isn't an excuse ... well, at least in theory. Finally, if they "oppose" illegitimately, including not following appropriate orders, they can be relieved of their positions.

Again, when my local post office clerk -- probably a liberal leaning sort given where I live and all -- isn't fired because a conservative is in power (which would be possible with strict "at will" employment), think it is a good thing. When she isn't fired by the government, who you suddenly trust more, without due process being followed, I think it's a good thing.

The bureaucracy is there to effect the will of the people, as expressed by those who they voted for.

This is done by carrying out the laws. If we don't like the laws in place, including the constitutional demands, there are ways to change them. "At will" employment again includes removing people simply for believing the wrong thing. The First Amendment is a thing in this country, even if you don't like it to be.

If they've gotten to thinking they're safe enough to do the opposite, they've got too much protection.

They are carrying out the laws. If the "will of the people" is new laws, they can change the law. Executives have significant power given their discretion and the play in the joints of the laws, the will of the people followed there. There are limits though and part of the "problem" at times is bureaucrats don't go along breaking them. Or, they realize in practice the guidelines they are given by the new people cannot really be applied or they are vague/confused. This upsets some people, especially since they aren't there needing to carry out the nitty-gritty.

Also, I wish to give out this award:

SPAM I AM! at 10:08 AM reaffirms his anti-fascist creds (in this rare case to his credit) but is SPAM an anarchist as well? On Sandy's prior post I referenced recent moves of anti-fascist and anarchist against Trump's alt right [actually wrong], KKK, White Supremacists, etc, wondering how Brett and SPAM might consider this movement.

By the Bybee (expletives deleted), I support the US Postal System by mailing in bill payments.


The absolute bureaucracy is a necessary element of all totalitarian governments. You cannot be a genuine anti-fascist without opposing the absolute bureaucracy.

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Mr. W., to add this point, has provided various comments on how the judiciary restrains the President, which also would restrain the bureaucracy in various respects. Back to the days of Andrew Jackson, courts have spoke of ministerial requirements there above and beyond presidential orders. In fact, Marbury v. Madison itself separated ministerial requirements there and political ones.

"When the heads of the departments of the Government are the political or confidential officers of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy."

The opinion spells out the duties of individual "officers" here & the principle would seem to go beyond the immediate issue (Madison) to the actions of individual "bureaucrats."

As so often happens, Brett's authoritarian instincts conflict with his claimed originalism. Recall that one of the very first debates in Congress was on the question whether the President had the power to fire his appointees. The Constitution is silent on the topic. In practice, appointees were mostly kept from the previous administration, even at high levels (to John Adams' misfortune), except in changes of party control. Even then, low level employees were kept. The "spoils system" originated with Jackson, fittingly since he was the most dictatorial president we've had until now.


"You cannot be a genuine anti-fascist without opposing the absolute bureaucracy."

might suggest he is ingenuous as he supports the civil service installed by his demon progressives. Compare to one being partially pregnant.


The bureaucracy is a necessary form of management for large organizations.

The civil service attempts to remove employment of government bureaucrats from politics.

Delegating legislative and judicial powers to the executive bureaucracy (absolute power) makes the bureaucracy a political arm of the government.

SPAM I AM! comes up a "SILLYGISM" that doesn't work. ERGO, SPAM is partially pregnant, but not with ideas.

While information is readily available on side effects of Trump's medications, to what extent might those side effects impact his presidency? Perhaps the direct effects of his presidency are a greater danger.

By the Bybee [expletives deleted), did Trump authorize his doctor to release information on his medication list?

After reading Maureen Dowd's NYTimes Sunday column tonight on Melania, is it possible that the situation is influenced by side effects referred to in a preceding comment? As a result I shall temporarily adjust one of my descriptives of The Donald as follows:


Query: Can The Donald as Executive Producer of the current version of "Th Apprentice" fire The Arnold? Maybe the brouhaha ia means of getting more people to watch the show. Perhaps there may be an episode down the road of an arm wrestling challenge with winner take all, with cabinet nominee McMahon as referee. Pay per view!

Absolute means not qualified or diminished in any way, so it's definitionally absurd to talk about a delegation which is at any time revocable as 'absolute power.' This from the guy who opined that words have meanings is particularly rich.

Mr. W:

Absolute power means exercising all of the three powers of government.

So long as all three powers remain delegated - a century now in America, longer in Europe - the bureaucracy exercises absolute power.

I find it kind of amusing that the new definition of 'fascism' is, "An elected government that can fire bureaucrats."

Well, realistically, the definition the left uses is, "Any government we don't control, and none we do."

"Absolute power means exercising all of the three powers of government."

Only in your idiosyncratic understanding. Normal English users wouldn't understand anything acting under a delegation revocable at any time as having 'absolute power,' by definition.

" the new definition of 'fascism' is, "An elected government that can fire bureaucrats."

Of course you're trying a straw man here, the argument is that it's "an essential step" towards dictatorship.

Absolut power is intoxicating. I'll drink to that.

SPAM I AM! once again is in his "DICK-TATER-HEAD" mode as a drunken sailor: "Give me liberty or I'll go AWOL."

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Mr. W:

My use of the term absolute power is based on western history, not some general dictionary definition.

In the west, the idea of absolute power unifying the executive, legislative and judicial was first codified in Rome, initially with appointed dictators and then with hereditary Caesars.

Rome is a classic example of how legislatures and courts gradually and often voluntarily cede their powers to the executive.

The later absolute monarchs were based on the precedent of the Caesars. Lord Acton's phrase "power corrupts and absolute power corrupts absolutely" refers to the corruption of the absolute monarchy.

The Founders' establishment of a strict separation of executive, legislative and judicial power was expressly meant to prevent absolute monarchy.

The problem with your use of the term absolute power (and totalitarianism) to mean control over everything is that no man or system has ever or will ever control everything. You use the term in this extreme manner to excuse the employments of absolute power and totalitarianism which which you agree.

"My use of the term absolute power is based on western history, not some general dictionary definition."

Nope, not that either. The historical use of the term 'absolute power' was used in reference to monarchs such as Louis XIV. L'estate est moi. But the idea of an 'absolute' power that, for example, would have been revocable, say by the people, was laughable.

And I'm not using the word to mean control over everything, only pointing out that what it *can't* mean is a delegated power that is at all times revocable. Such a power is instantly qualified and by definition and historical understanding absurd.

Your problem is you've taken middle school level discussions of our separation of powers and checks and balances, discussions that point out those features are important because otherwise 'all the power' would reside in one branch, and ignoring the many ways the bureaucracy is limited by all three branches of government while confusing the consensus of those branches to use a bureaucracy with an inability to not use it, you've then reasoned the bureaucracy must have 'all the power' because it has *some* quasi legislative and judicial functions. But a lack of separation of powers doesn't translate to an absolute dictatorship. In England the separation is lacking, but only the most idiosyncratic understanding would think England is under a tyranny.

I find it kind of amusing that the new definition of 'fascism' is, "An elected government that can fire bureaucrats."

Where was this said? Mr. W. gives you too much credit. His reply requires more than this, at the very least something like "at will." The government can fire bureaucrats now. Your amusement is mixed with confusion.

Well, realistically, the definition the left uses is, "Any government we don't control, and none we do."

Not really. Anyway, back to your very first comment. Not speaking for the left, I again don't want the government "at will" to have the power to fire people because of their beliefs or on unreasonable grounds without some protections in place. Your desire to give more power to the government here is not that amusing.

Anyway, I recently saw "Three Trembling Cities," which is a web-series but had a chance to see all the episodes of the first season together at local screening.

Very good and fitting viewing for the times.

SPAM I AM! with this:

"My use of the term absolute power is based on western history, not some general dictionary definition."

is followed by SPAM in his classic Humpty-Dumpty mode as Mr. W once again serves up SPAM's derriere to SPAM: Bon Appetit!

Versailles had a political purpose: to draw the teeth of the French nobles by trapping them in the ritual and intrigue of the court, a theatre of which the King was the permanent star, and to cut them off from the Paris mob, which had become at times their dangerous ally in the Fronde. Trump Tower is merely a cheaper rerun of Hearst Castle, a monument to one man's vanity.

Y'all sure like to suck all the air out of your comment sections, though to his partial credit Mista Wiskas seems new, since he's still attempting good-faith argument among those who don't engage in it.

Mr. W:

Revocable in theory and reality are two very different things.

In Rome, the Senate delegated absolute power to dictators. That delegation only expanded over time until the dictators turned into the Caesars.

In the US, Congress delegated absolute power to the bureaucracy starting about a century ago and that delegation has only expanded. In the EU, that delegation has lasted far longer.

In both cases, the legislature never revoked their delegations of absolute power.

You yourself concede the bureaucracy's 'decrees' could all be reversed tomorrow if our political branches wanted it. The fact that there is no supermajority support to do so doesn't make this power illusory, it means the use of it simply isn't popular enough. The authority is entirely revocable and hence by definition not absolute.

Some further proof. Bart himself regularly concedes that virtually every developed nation has an 'absolute bureaucracy.' Given these nations have diverse populations and forms of government, the most probable conclusion is that something about development leads to a popularity of delegation to bureaucratic agencies. In the end Bart's complaint is that things he doesn't like are too popular to have been reversed by diverse political arrangements. He wants to impose his tyrannical, minority preferences and, thwarted, cries tyranny himself!

Mr. W;

Even under your reasoning, the absolute power delegation exists until revoked. One century and counting.

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