A Federal Bureaucracy Beyond Even the President’s Control – Part 1
Why the Founders thought it essential that Presidents be able to hire and fire their executive branch employees.
The original intent of the Founders who helped draft the Constitution was that the President would be able to freely hire and fire employees within the executive branch, in order to maintain the legitimacy and accountability of presidents in their administration of the executive branch. However, over time, federal bureaucrats came to be granted statutory protections that severely limit the ability of modern presidents to control the very branch of government they were elected to run. The following two essays describe how we got to that situation today.
Article II, Section 1, clause 8 of the Constitution requires the president to swear the following oath: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: -- “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.”
Further, Article II, Section 3 of the Constitution imposes a personal duty on the president, namely that the president “shall take Care that the Laws be faithfully executed …”
As the Heritage Guide to the Constitution explains, “The Take Care Clause imposes a duty that qualified the Article II, Section 1, Clause 1 grant of executive power. By virtue of his executive power, the president may execute federal laws and control officers who execute those laws.”
The vast scope of the executive branch makes it particularly important that the president maintains control over its composition.
As Gary Schmitt and Joseph Bessette point out, in describing the debates in the First Congress regarding whether the President had the power to remove subordinate executive branch officials:
When Madison announced his change of mind about congressional discretion in these matters on June 16, [1789] he concluded from his “strict examination” of the “true principles” of the Constitution that the vesting clause that opened Article II was the key. [Madison stated:] “I conceive that if any power whatsoever is in its nature executive, it is then power of appointing, overseeing, and controlling those who execute the laws …” … Sen. William Maclay of Pennsylvania quotes [Senator Oliver] Ellsworth using a vivid image to make the constitutional point. [Ellsworth stated] “I buy a square acre of land. I buy the trees, waters, and everything belonging to it. The executive power belongs to the President. The removing of officers is a tree on this acre. The power of removal is, therefore, his. It is in him. It is nowhere else.” … Perhaps the word used most often by proponents of presidential removal was “responsible.” As the chief executive, the president was, it was repeatedly said, responsible for the government’s administration. It was his peculiar duty as implied by his oath, his authority to acquire the opinions in writing of senior officials, and his responsibility to “take Care that the Laws be faithfully executed.” 1 Annals of Cong. 385 (May 19, 1789) (statement of Benson); 1 Annals of Cong. 387, 394, 480, 516 (May 19, June 16, and June 17, 1789) (statement of Madison); 1 Annals of Cong. 393 (May 19, 1789) (statement of Goodhue); 1 Annals of Cong. 483, 594 (June 16 and June 19, 1789) (statement of Vining); 1 Annals of Cong. 493, 561 (June 16 and June 18, 1789) (statement of Ames); 1 Annals of Cong. 480 (June 17, 1789) (statement of Hartley); 1 Annals of Cong. 508 (June 17, 1789) (statement of Clymer); 1 Annals of Cong. 546 (June 18, 1789) (statement of Lee); and 1 Annals of Cong. 549 (June 18, 1789) (statement of Boudinot).
Holding the president and other federal officials personally accountable for their actions was integral to the “separation of powers” created by the Constitution – a system in which each branch is expected to exercise its powers to counteract abuses committed by the other branches. Attributing personal responsibility to the president and other federal officials was also a unique aspect of the American Constitution. As Mark Reibling explains:
“Responsibility” became an American idea on or by June 1, 1787, as the Constitutional Convention debated the motion “that the Executive consist of a single person.” The idea evoked the hated specter of a king. South Carolina delegate Charles Pinckney warned that investing power in a president could mean “a monarchy, of the worst kind, to wit an elective one.” At this fork in our national road—the transcriber noted “a considerable pause ensuing”—Benjamin Franklin spoke. “Before the question was put,” he wished more discussion on “a point of [such] great importance.” John Rutledge of South Carolina, noting “the shyness of gentlemen on this ... subject,” then backed a unitary executive, using a novel word for the president’s ability to respond. “A single man,” he said, “would feel the greatest responsibility and administer the public affairs best.”
In the next six weeks of debate, responsibility became a capstone concept for the federal enterprise. It drove discussions of desired presidential character traits … The term proved so serviceable that Madison, summarizing the sessions, reflected on July 17: “The responsibility of all to the will of the community seemed to be generally admitted as the true basis of a well constructed government.”
The associated phrase “personal responsibility” appeared the next day. On July 18, opposing a motion that Congress nominate judges, Massachusetts representative Nathaniel Gorham argued that the president would be more likely to “look through all the states for proper characters.” By contrast, Gorham said, “public bodies feel no personal responsibility, and give full play to intrigue and cabal.”
The new phrase and its implications caught on quickly. In that same July 18 session, Virginia delegate Edmund Randolph urged keeping a public record of senators’ votes in order to impose “personal responsibility.” Hamilton used the term artfully, in Federalist 69, to contrast the powers of president and king. The American executive would be not “sacred and inviolable” but impeachable and removable—ruling in a “delicate and important circumstance of personal responsibility.”
Of course, the Framers did not pioneer the concept of man as a personally responsible agent. That notion, arguably the greatest of all Western ideas, dates to line 32 of Homer’s Odyssey, where Zeus asks people to stop blaming their bad choices on the gods. But the Federalists turned this ancient moral idea to newly practical ends. Of their first ten phrases involving responsibility, four dealt with the executive power, three with the legislative, two with the judiciary, and one with the general basis of good government.
Thus personal responsibility is not just an originally American formulation but a uniquely political one. The Federalists leveraged the phrase as they invented a nation.
In his introduction to the seminal edition of The Federalist Papers, editor Clinton Rossiter and Charles R. Kesler write the following regarding how James Madison and Alexander Hamilton pioneered the use of the term “responsibility” in government and placed the concept, uniquely to that point in world history, at the center of the government created by the Constitution:
“Responsibility” is a new word that received its classic definition in the ratification debate and, especially, in the pages of The Federalist. Although the term had appeared sporadically in eighteenth-century British politics, it was in America in the 1780s that it achieved its lasting political prominence. “Responsibility” is the noun form of a much older adjective, “responsible,” itself related to the verb “respond,” meaning to answer; its Latin ancestor is respondeo, whose root (spondeo) means to promise sacredly or to vow. To be responsible thus means to be answerable to someone else, implying the possibility of punishment; but it also means to be the cause of something, to be equal to a challenge or obligation, to live up to a vow or solemn promise. If republican government is to be responsible, it must be responsive to the people and answerable to their will. But if it is to be responsible in the more positive sense, it must go beyond mere responsiveness and be able to serve the people’s true interests or their reasonable will, even if this course of conduct is not immediately popular. The tension between these two senses of “responsibility” underlay the debate between Anti-Federalists and Federalists over the ratification of the Constitution …
Publius lays the groundwork in No. 10 for a new kind of responsibility that means more than reporting back to the people, and for a new kind of republicanism that is more than direct democracy once removed. The sine qua non of such responsible republicanism is a properly structured separation of powers, which is (to repeat) the main organizing principle of the second part of The Federalist. Separation of powers performs three main functions in Publius’s argument …
Second, Publius holds that a proper separation of powers allows each branch to perform its peculiar function well. In the discussion of the specific branches, he explains that the Constitution conduces to a deliberative legislature, an energetic executive, and a wise and just judiciary. The Anti-Federalists thought functional excellence desirable, too, but emphasized that the people must be the judge of constitutional demarcations, hence also of the character and extent of the three powers …
Republican government could not be good government without such institutions, and Publius defends them vigorously: a House of Representatives less numerous than the Anti-Federalists wanted; a senate with six-year terms; a President indefinitely eligible for re-election (since changed by the 22nd Amendment); and federal judges with “good behavior” tenure. These robust institutions, each shaped to its function or task, make republican government responsible in a larger, higher sense than the Anti-Federalists had in mind, and encourage the public to judge the government not only by its immediate actions, but by its long-range policies and tendencies …
Responsibility is the only virtue or quasi-virtue that has entered our moral language from the American Founding, and in large measure it is The Federalist that has defined and still defines its contemporary meaning.
A president, as a matter of both logic and constitutional law, cannot fulfill a personal responsibility to take care that the laws are faithfully executed if all the executive branch officials under his charge cannot be required to faithfully execute the president’s policies. If federal bureaucrats could simply sit on their hands, or act to block a president’s own policies, the entire basis of the presidency under the Constitution would be undermined, and the will of the people who elected the president would be thwarted.
In the 1970’s, none other than “critical legal theorist” Professor Gerald Frug, who went on to teach at Harvard Law School, vigorously defended the president’s constitutional authority to fire civil service employees. The April, 1976 issue of the Pennsylvania Law Review featured Frug’s article “Does the Constitution Prevent the Discharge of Civil Service Employees?” In that article, Frug recounts the need for the president to be able to fire civil service employees and how the early practice of our first presidents, and Founding Fathers, understood just that.
Frug opens his article with the following quote of Harry Truman, describing the plight of his successor, President Dwight Eisenhower: “He’ll sit here ... and he’ll say ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.”
Frug then writes:
[T]he increase in the importance of government has been accompanied by a decrease in the level of public confidence in the government work force … Government personnel seem not only ineffective but also unresponsive either to the public or to elected officials; the bureaucracy has developed a life of its own … [N]o amount of citizen involvement in policymaking can compensate for an inadequate government work force.
Government’s ability to improve personnel policy—whether for reasons of governmental effectiveness or efficiency—is now limited both by the civil service system and by unionization of government employees.
Yet most government employees are now protected by civil service, and the civil service system is a basic cause of the peculiar inability of the government to improve its standard of performance. The critical fact of civil service today is that covered employees are rarely discharged from government for inadequately doing their jobs. The civil service system has provided the equivalent of life tenure (at least until retirement) once a brief probation period is passed, absent what the government considers a serious act of misconduct. As a result, government no longer effectively enforces a minimum level of quality in the work performance of its employees.
Concern over the effect of this permanent tenure for government employees is widespread. [John Macy, the Chairman of President Lyndon Johnson’s U.S. Civil Service Commission, himself wrote] “Virtually every round table discussion of problems facing public managers will quickly turn to the inability of the manager to discipline nonproductive or insubordinate employees or to dismiss those who have ceased to be productive or constitute chronic supervisory problems.”
Strengthening the ability of government managers to ensure adequate employee work performance is an essential ingredient in reforming government administration. Although any large organization has the problem of motivating employees and improving their performance while providing adequate job security, the government today is subject to two basic restrictions of its power over its employees that are inapplicable to private enterprise: It can discipline or discharge its employees only for “cause” and it must provide them with procedural protections in determining the existence of that cause. Of these two limitations, the procedural protections most restrict the government’s ability to enforce a standard of job performance. Incompetence is generally assumed to be sufficient “cause” for termination. But the procedures that must be followed to establish incompetence make such terminations extremely unlikely. The problem of adequately defining a standard of competence, particularly in the higher-level and more important jobs, the uncertainty about the kind of evidence needed to prove a violation of that standard, the unpleasant nature of a formal confrontation between people with a personal, employer-employee relationship, and the supervisor’s view that he, not the employee, will be put on trial—together with the natural reluctance to fire anyone in any event—combine to prevent legitimate discharges for incompetence. The result is that the level of competence in government declines.
Frug then describes in detail how the Founding Fathers, many of whom became America’s first presidents, understood their constitutional duty to hire and fire civil service employees such that they could fulfill their own presidential responsibility to see that the laws are faithfully executed within the executive branch:
On May 19, 1789, during the debate in the first session of Congress over the creation of the first executive department, the Department of Foreign Affairs, Representative James Madison moved that the Secretary of the Department be removable by the President alone.
James Madison, the leading advocate of presidential power, replied in a speech that has remained the basic argument for the executive’s power of removal: “The danger to liberty, the danger of mal-administration, has not yet been found to lie so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who are unworthy of the public trust. If it is said, that an officer once appointed shall not be displaced without the formality required by impeachment, I shall be glad to know what security we have for the faithful administration of the Government? Every individual, in the long chain which extends from the highest to the lowest link of the Executive Magistracy, would find a security in his situation which would relax his fidelity and promptitude in the discharge of his duty. ... Vest this power in the Senate jointly with the President, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. ... [I]f anything in its nature is executive, it must be that power which is employed in superintending and seeing that the laws are faithfully executed.” [1 ANNALS OF CONG. 515-16, 518-19 (1789) [1789-1791] (remarks of Representative Madison).]
Ultimately, the House of Representatives decisively adopted Madison’s approach favoring executive authority, and the Senate agreed, although only by virtue of the tie-breaking vote of the Vice President. The result, known as the Decision of 1789, remained the basis of executive power in employee relations, with brief exceptions, until the last thirty years. Even Representative Smith later changed his mind, as did Hamilton himself.
After the Decision of 1789, the President’s absolute power of removal of federal employees was established in principle … As Madison recognized in 1789, the concept of responsiveness to executive authority must be accepted through the entire spectrum of those exercising that authority. The President cannot govern by controlling his Cabinet alone; they too must control their departments to be able to carry out the President’s decisions.
Carl Russell Fish, in his 1905 book “The Civil Service and the Patronage,” describes how President George Washington and his fellow Founder successors agreed with Madison’s assessment. As Fish describes, President George Washington was particularly concerned that those who opposed the adoption of the Constitution not serve in the executive branch civil service:
To Washington's anxiety that the officers of the general government should be men of established reputation, was added a desire that they should be sound supporters of the new system; that is, political orthodoxy was considered as one of the elements of fitness for office … When political strife grew hotter and the Republican and Federalist parties began to emerge, … Washington became more of a party man … [I]n 1795 he wrote to Pickering, “I shall not, whilst I have the honor of administrating the government, bring men into any office of consequence knowingly whose political tenets are adverse to the measures the general government is pursuing; for this, in my opinion, would be a sort of political suicide.” … It was the popular charge of the Republicans that, in his [Washington’s] second term … he confined his appointments to members of the Federalist party … In a summing up of the whole policy of the Federalists toward the civil service, this point should first of all be insisted upon, that fitness was always an essential requirement; other qualifications were often looked for [and] [o]f these subsidiary qualifications, correct political opinion was one of the most important both under Washington and under [President John] Adams.
Upon assuming office, President Jefferson, of the Republican opposition party to the Federalists, then turned the tables. As Fish writes:
The Federalist policy of excluding the opposition from office, however, inevitably entailed a policy of removals upon their opponents when the latter should come into power … When Jefferson became president, he found nearly all the offices filled by his the counsels of those who have advised the giving offices to some of their leaders, in order to reconcile. I have given, and will give only to Republicans, under existing circumstances … Jefferson seized this opportunity to give expression to his views on the question of the patronage, embodying them in a reply (July 12, 1801) to the petition of the merchants. “The removal, as it is called, of Mr. Goodrich,” he writes, “forms another subject of complaint. Declarations by myself in favor of political tolerance, exhortations to harmony and affection in social intercourse, and to respect for the equal rights of the minority, have, on certain occasions, been quoted and misconstrued into assurances that the tenure of offices was to be undisturbed. But could candor apply such a construction?” He goes on to quote the usual arguments, that the Federalists had excluded from office those “not of a particular sect of politics,” and that, as a consequence, office was a monopoly in the hands of the minority. “Does it violate their equal rights” he continues, “to assert some rights in the majority also? Is it political intolerance to claim a proportionate share in the direction of the public affairs? ... If the will of the nation, manifested by their various elections, calls for an administration of government according with the opinions of those elected; if, for the fulfilment of that will, displacements are necessary, with whom can they so justly begin as with persons appointed in the last moments of an administration, not for its own aid, but to begin a career at the same time with their successors?” Could the preference for another as successor to Mr. Austin be justly considered the removal of Mr. Goodrich? “If a due participation of office is a matter of right, how are vacancies to be obtained? Those by death are few; by resignation, none. Can any other mode than that of removal be proposed? This is a painful office; but it is made my duty, and I meet it as such. I proceed in the operation with deliberation and inquiry, that it may injure the best men least, and effect the purposes of justice and public utility with the least private distress; that it may be thrown, as much as possible, on delinquency, on oppression, on intolerance, on ante-revolutionary adherence to our enemies. It would have been to me a circumstance of great relief, had I found a moderate participation of office in the hands of the majority. I would gladly have left to time and accident to raise them to their just share. But their total exclusion calls for prompter corrections.” … In the summer of 1803 Jefferson apparently decided that the desired equilibrium had been attained, and removals ceased. At that time the balance of office-holding weighed down considerably on the Republican side; but it should be borne in mind that the Federalists no longer constituted half the population, and were therefore, according to the Jeffersonian rule, not entitled to half the offices … [B]y 1806 the civil service must have been as strongly Republican as it had been Federalist in 1801.opponents. Was it right, when the people had expelled the Federalists from the elective offices and put Republicans in their places, that the old occupants of the appointive offices should be left in their positions merely because the people could not reach them? Should the government be administered, should the national salaries be enjoyed, by representatives of a minority of the population? Most of the Republicans agreed that it was not right, and that it should not be tolerated … Three days after his inauguration he wrote to Monroe: “I have firmly refused to follow the counsels of those who have advised the giving offices to some of their leaders, in order to reconcile. I have given, and will give only to Republicans, under existing circumstances.”
Fish tabulated the civil service officers removed by the early presidents in an article titled “Removal of Officials by the Presidents of the United States,” a report of the American Historical Association, Report (1899). In that report, Fish states, regarding removals under President Jefferson, “It should be observed that practically all the removals which [are] above the customary were made during 1801, 1802, and 1803; that is, the removals for political purposes were made gradually, but when they were completed the old method of conducting the service was resumed.” (As Frug writes in his law review article “Does the Constitution Prevent the Discharge of Civil Service Employees?”, “Thomas Jefferson could not have been as complacent with the composition of the civil service as his predecessors had been, because he found the entire apparatus of government manned by people loyal to the opposition party, some of whom had been appointed by John Adams in his last days as President. To redress the political balance of the government, Jefferson removed more than 25% of federal officers of the presidential class and is therefore considered the founder of the spoils system in the United States.”)
Regarding James Madison’s subsequent presidency, Fish writes: “As it was, [President Madison] succeeded an administration with which he was in complete harmony; there was as yet no loud call for rotation in office, and he was not even tempted to reconstruct the civil service.” Still, regarding removals under President Madison, Fish writes “The exceptionally large number of civil officers [removed by Madison] represents chiefly the officers of the direct tax.”
So the Founders clearly understood that presidents had to have the authority to hire and fire whom they wanted to serve them in the executive branch, if constitutional accountability was to be maintained. But that original understanding has long been replaced by a system in which executive branch employees are largely immunized from replacement at the elected president’s discretion. How that happened will be the subject of the next essay.