Last week, the Biden administration published regulations that will make firing senior federal employees who place politics ahead of the people functionally impossible. President Joe Biden may find that acceptable because most career federal employees share his politics.
He should think again.
As the State Department’s reaction to Biden’s Israel policy shows, career bureaucrats can resist presidents of both parties. Empowering career officials to resist the elected president undermines democracy.
Civil service rules make firing civil servants for poor performance or misconduct extremely difficult. Surveys have long shown federal employees themselves consider this a huge problem. It becomes especially distressing when career officials inject partisanship into their official duties.
Scholars have long documented that career federal employees often pursue personal policy agendas. In one well-documented case, career Environmental Protection Agency (EPA) employees increased enforcement stringency during the Reagan administration. This happened despite deregulatory directives from EPA Administrator Anne Gorsuch (Justice Niel Gorsuch’s mother). Scholars describe career employees as exhibiting “politicized competence”—using their expertise to selectively advance their preferred policies.
The career bureaucracy’s politicized competence was on full display in the Trump administration. Career employees frequently slow-walked or obstructed policies they disliked. Many—though by no means all—career employees acted like they believed they worked for themselves, not for the American people and their elected representatives. Indeed, career employee resistance repeatedly made national news.
In late 2020, President Donald Trump issued an executive order addressing this problem. The order created a new “Schedule F” for career employees in policy-influencing positions. Employees in Schedule F would remain career officials, selected without respect to political affiliation. But they would also serve at-will, just like private sector workers do.
Schedule F empowered the president to hold the bureaucracy accountable. Employees who did their jobs faithfully would keep their positions, no matter their personal politics. But employees in Schedule F who obstructed the president’s policies could be rapidly dismissed.
Schedule F built on successful state reforms. Several state governments, including Texas and Florida, operate partially or fully at-will. These states have continued to operate effectively, while career employees have become more responsive to agency leadership. Trump’s order took these proven state policies national.
President Biden nonetheless abolished Schedule F within days of taking office. Now, he is trying prevent it from coming back if he loses. The Office of Personnel Management just finalized regulations extending civil service protections to career employees transferred into Schedule F. The order cannot be meaningfully reinstated until these regulations get repealed.
The new rules will—at least temporarily—insulate policymaking bureaucrats from accountability to elected officials. Career officials who inject partisanship into their duties know that removing them will remain virtually impossible.
President Biden likely believes that this will not hurt his agenda. Campaign donations show that in most cabinet departments, the average career employee is more liberal than Democratic-party political appointees. Most bureaucrats accordingly have little incentive to frustrate President Biden’s policies. But if President Biden loses re-election, the rule will make it harder for the next president to change course.
For example, the EPA just finalized rules largely phasing out sales of gas-powered cars. This electric vehicle mandate is highly unpopular and President Trump has promised to repeal it. Opposition to the rule could even tip the election. The mandate is projected to eliminate 25,000 auto manufacturing jobs in Michigan alone—a pivotal swing state.
But if Trump wins, fulfilling his pledge will require cooperation from EPA’s liberal career bureaucracy—the same bureaucracy that happily sabotaged Anne Gorsuch. Blocking Schedule F removes a tool for compelling agency employees to implement policies they personally oppose. That will tend to entrench Biden administration policies.
If that is Biden’s thinking, he should reconsider. Insulating the bureaucracy can hurt Democratic presidents as well as Republicans. Career officials in the State Department have been in near revolt over his Israel policies. Federal Trade Commission Chair Lina Khan has similarly faced extensive career staff opposition to her efforts to re-envision anti-trust policy. The shoe also goes on the other foot.
Moreover, a system that allows bureaucrats to stymie policies they personally oppose undermines representative government. Career officials who resist the president are ultimately thumbing their noses not at him, but at the voters. Schedule F would prevent that. In a democracy, citizens should get the policies they voted for.
James Sherk is director of the Center for American Freedom at the America First Policy Institute. He served as a special assistant to President Trump on the White House Domestic Policy Council.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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