Nicholas Bednar (University of Minnesota Law School) has posted Presidential Control of the Civil Service on SSRN. Here is the abstract:
Conventional wisdom treats the federal civil service as largely beyond the president’s reach. This Article challenges that assumption. Legal scholars too often focus on constitutional powers rather than statutory authority. Yet the president has possessed statutory authority to regulate entrance into the civil service and the conduct of federal employees since before the passage of the Pendleton Act. Through detailed case studies spanning recruitment, conduct, unionization, and removal, this Article demonstrates how presidents routinely alter the structure of the civil service. The analysis shows how presidents can use this statutory authority to strengthen administrative capacity when used in good faith or dismantle it when wielded as an instrument of deconstruction.
Congress has imposed few clear limits on the exercise of presidential authority over the civil service. The breadth of the president’s statutory authority over the civil service has three main consequences for personnel management. First, presidents often use personnel policy as a means of advancing their substantive policy agendas, sometimes at the expense of sound principles of personnel management. Second, tensions within the civil service laws enable presidents to provide reasoned decisions for many controversial personnel policies. Third, confronted with broad statutory language and shallow invocations of the merit system principles, courts have largely deferred to presidents’ use of this statutory authority. The result is a civil service that is not insulated from politics but contingent on the character and priorities of the individual who occupies the White House.
Normatively, the Article warns that unchecked presidential control imperils the administrative capacity on which the faithful executive of law depends. When Congress enacted the Civil Service Reform Act, it feared a “fox in the henhouse” scenario: a president capable of lawfully hollowing out the civil service faster than voters, legislators, or courts could respond. Such a scenario provides presidents a roundabout way of deregulating and sabotaging laws, polices, and programs with which they disagree. The Trump administration provides a contemporary case of how the civil service laws create this risk. The Article concludes by reenvisioning the balance of personnel authority between Congress and the president.
Highly recommended.