There is a stealth resistance underfoot against President Donald J. Trump and his nascent Administration. It is deep. It is powerful. It is in his backyard.
And under current law, there is little he can do about it.
This resistance is the administrative state. And though rabble-rousing rioters are dominating the media coverage, the quiet bureaucratic resistance is much more impactful — and more dangerous.
While the relationship between the permanent bureaucracy and every new administration entails growing pains, the hostility of the administrative state toward this new president is unprecedented. And because its agents — the more than two-and-a-half million members of the non-defense federal civil service — are generally protected by federal law from losing their jobs, the administrative state shows no hint of surrender or even compromise.
The headlines today are rife with just some of the more blatant abuses of the administrative state.
Recognizing the problem, President Trump has begun taking steps to drain the bureaucratic swamp. But it will take more than a few executive actions to rein in the recklessness of the administrative state.
One key problem facing the Trump Administration and Congress in its efforts to deconstruct the administrative state is the inherent sense of an employment entitlement in the federal civil service system. As Inez Feltscher Stepman and Jarrett Stepman from the American Legislative Exchange Council note, meaningful overhaul of the civil service system will require legislative action repealing at least parts of the Pendleton Civil Service Reform Act (establishing general job “protections” for federal employees) and the Lloyd-LaFollette Act of 1912 (creating the standard of “just cause for termination” to remove federal employees).
Even imagining the outcry from entrenched federal employees and their powerful labor unions is deafening. The Trump Administration will be roundly accused of “politicizing” the civil service system and returning it to the corruption and nepotism of the Andrew Jackson-era “spoils system.”
A successful precedent for eradicating the entitlement of lifetime public employment can be found in the state of Georgia. In 1996, Georgia scrapped a 53-year old civil service system with its antiquated job “protections” and “step” pay grade ladder, replacing it with a revolutionary (for government) model featuring “at-will” state employment and “pay-for-performance.” In other words, Georgia transformed the traditional, entrenched government system emphasizing job security into a model reflecting the private sector’s emphasis on incentives.
Georgia sunset its old system by requiring that all state workers hired after July 1, 1996 serve as “at-will” employees with no civil service protections. While new employees received the same basic benefits package as their “grandfathered” colleagues, they retained no seniority rights, e.g., they could not use their seniority to “bump” more junior employees out of an agency during a downsizing, and no formal rights to appeal disciplinary actions. New employees could be transferred, demoted, or promoted at the direction of management.
Also, Georgia’s 99 state agencies no longer had their hands tied in terms of recruitment, screening, hiring or firing. Each agency was free to create its own job titles and pay scales for state jobs. They could discipline and dismiss employees without a formal, centralized system to slow them down.
With its newly obtained freedom, agencies had greater latitude to recruit top-notch candidates for employment. For example, if an agency wanted to attract better candidates for a lower- or entry-level position, they could simply create a new job title and pay scale — allowing them to compete for top performers.
Under the new “pay for performance” system, pay raises were no longer automatic for any state employees, nor were top performers limited to smaller salary raises due to the antiquated and highly restrictive “step” pay ladder. In other words, your compensation and your rise up the ranks would be determined by your performance — not time spent — on the job.
Most importantly, Georgia’s state workers are now “at-will” employees (at least 88 percent of them, as of 2012), meaning they can be disciplined, demoted or even dismissed in a timely manner, simply based on individual job performance. No longer is public employment in Georgia considered one of the three certainties in life (death and taxes to be addressed later).
In a 2002 study of the Georgia civil service overhaul, Governing Magazine’s Jonathan Walters noted the following improvements:
- More responsibility for agency personnel staff and hiring authorities;
- More flexible recruitment;
- More timely hiring;
- More flexibility in pay and promotions;
- More flexibility in reassignment and downsizing; and
- Increased interagency competition for talented staff.
As Walters suggested, “what Georgia did wasn’t so much blow up civil service as melt it down.” Since 1996, other states have followed Georgia’s example with their own, more limited civil service reforms, including Texas, Florida, and most recently, Wisconsin.
If he is going to carry out his ambitious agenda to make America great again, President Trump can propose that Congress via legislation shed the burden of an administrative state determined to derail him. He cannot afford to allow the “permanent” bureaucracy to remain permanent. Thanks to state laboratories like Georgia, he has a revolutionary model for overhaul that Congress can work with.