Aaron L. Nielson (University of Texas at Austin — School of Law) and Christopher J. Walker (University of Michigan Law School) have posted Article II and the Civil Service, forthcoming in Virginia Law Review, Vol. 113 (2027), on SSRN. Here is the abstract:
The federal government employs more than two million civil servants. Most are hired through a competitive process centered on competence and cannot be fired for holding political opinions different from the President’s. At the same time, federal agencies are led at the highest levels by a small group of appointees selected by the President or another presidential appointee. Although much has changed over the last 150 years, this division of labor has broadly characterized Executive Branch staffing since the presidency of Chester Arthur. Today, however, the civil service faces an existential threat from the combined force of four dynamics connected with Article II of the U.S. Constitution. Two are doctrinal. First, the Supreme Court has adopted a strong unitary-executive view of the President’s constitutional power to fire those within the Executive Branch. Second, the Court almost certainly will offer a sharper test for who is an “officer of the United States” under Article II. The third is methodological. Rather than relying on functionalism or the judgment of Congress, today’s Court increasingly answers separation-of-powers questions with formalistic bright lines grounded in text, structure, history, and tradition. Finally, the fourth is opportunity. Not only has the Trump Administration proved itself willing to push Article II to its limits, but it has vowed to “destroy the Deep State.” The Court thus soon will confront questions about Article II and the civil service that were at best academic just a few years ago. This Article addresses the civil service in the context of Article II. Working within the Court’s modern precedents and methodological commitments, it charts a path that vindicates both bureaucratic competence and Article II accountability. This path is built on three insights. First, Article II does not prevent Congress from imposing competency requirements for hiring employees or protecting employees from at-will removal. But second, no matter what label Congress uses, “civil servants” with enough authority are Article II officers, not employees, and so are subject to the Appointments Clause and some are removable at will. Yet third, even for officers removable at will, the Constitution provides Congress with an anti-removal power to discourage removal through potent political means. Although use by Congress of that power will not preserve all aspects of the civil service in every case, Congress can stave off a return to the infamous Nineteenth Century spoils system.
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