© Getty Images
The lines weren't widely noted. But in a few places, sudden alarm bells went off: "Trump looks to expand VA's firing authority government-wide," ran a headline in FCW, a publication on government technology. The New Yorker dangled the prospect that Trump might be hinting at firing members of the FBI. Slate bit down harder: "Donald Trump Just Asked Congress to End the Rule of Law," blared a headline.
His plan might not be that extreme, but Trump's words did lay down a marker that could have repercussions throughout the government - maybe even declaring a new front in what former aide Steve Bannon called "the deconstruction of the administrative state."
"This was a quick drive-by in the speech, but it has enormous implications that are only beginning to play themselves out," said Don Kettl, a professor at the University of Maryland who has written extensively on government management.
This new shot on the bureaucracy builds on Trump's previous attacks on the so-called administrative state, from criticizing individual federal workers to efforts to reshape agencies altogether. He instituted a government-wide hiring freeze on his third day in office; in March, he directed federal agencies to draw up reorganization plans. He's also installed small-government crusaders in critical White House positions who are quietly-critics say secretly-drawing up plans to reorganize the federal bureaucracy.
It's all part of Trump's broader promise to run the government like a business, streamlining agencies and squeezing out efficiencies that save taxpayer money. But one of the biggest obstacles to such an overhaul is the vast federal workforce of 2 million employees-workers who are, by and large, difficult to fire. While political appointees set the direction of individual agencies, these civil servants do the actual nuts-and-bolts tasks of governing, from running statistical surveys to writing regulations.
To Democrats and others worried about Trump's agenda, government employees have come to represent a bulwark against radical change-career civil servants who can't simply be bumped out in favor of loyalists. But to critics of the bureaucracy, those employees represent a massive impediment to change, a "deep state" that defies democracy by resisting the president's agenda. Trump adviser Newt Gingrich, on the eve of Trump's inauguration, talked of waging a "straight-out war" against the federal bureaucracy, in part by making it easier to fire federal workers.
So far, that war hasn't really happened: Trump's hiring freeze slowed the influx of new workers, but he hasn't made any appreciable effort to sweep out existing civil servants. Still, the State of the Union represents perhaps the clearest sign yet that the White House intends to focus on civil service reform in the months and years ahead-especially since his budget last year made deep cuts to federal agencies, necessitating significant reductions in the federal workforce.
How would it happen? One clue may lie in Trump's invocation of a little-known law that made it easier for the VA to fire workers. Triggered by the scandals at VA hospitals in 2014, the VA Accountability and Whistleblower Protection Act, signed last June, lowered the standard of evidence necessary for the agency to fire workers, and reduced the time for them to appeal dismissals. And the VA does appear to be firing more workers: According to data provided to POLITICO by a spokesperson at the Department of Veterans Affairs, the agency removed 1,737 people in the roughly six months after the law's passage, compared with 2,001 workers in the entire year 2016.
J. David Cox, head of the American Federation of Government Employees, sharply criticized the law in an interview, saying the vast majority of those removed were lower-level workers, not the managers or senior executives most at fault for the scandal. "They are firing housekeeping aides," he said.
Administrative experts, who have been tracking the law as something of an experiment, said the results aren't clear, especially since the law was enacted less than a year ago. They are less focused on the number of workers removed than on the quality of service provided by VA hospitals-the ultimate goal of the reforms. "Is it easier to get an appointment?" said Kettl. "Is the quality of health care better?"
Trump hasn't said whether he wants to extend the VA law more broadly, and it's unclear just how he plans to tackle federal personnel laws overall. The most extreme interpretation of his comment is that he wants to abolish civil service protections altogether, a radical idea. "He wants to move from a democracy to an autocracy, without any question, where every federal employee is like-minded and votes one way," Cox said. In the Slate piece, author Yascha Mounk, a democracy scholar, wrote that "Trump called on Congress to give him unprecedented and unquestionably antidemocratic powers."
Many experts were skeptical that Trump really would propose abolishing civil service protections, which were first created in 1883 to prevent incoming administrations from creating a political test for the federal workforce. But Trump's relationship with the federal workforce has been confrontational, to say the least. He has often railed against the so-called deep state, and recently publicly attacked Andrew McCabe, the former FBI deputy director who resigned this week after the president accused him of bias over his wife's political affiliations. Before Trump, presidents rarely, if ever, attacked federal employees by name; his treatment of McCabe was seen by some as another sign that the president wants to clear out federal workers in favor of political loyalists.
So what does Trump really want to do? Blowing up civil-service protections, or enforcing a loyalty test, are likely to be nonstarters. "In my conversations with the folks in the administration, that's never been on the table," said Bill Valdez, president of the Senior Executives Association. "The barriers to throwing out the civil service system are so huge."
The House of Representatives has passed a couple of bills to make it easier for agencies to fire federal workers and reduce their appeal time, in line with the VA legislation. At the beginning of the 115th Congress, congressional Republicans also reinstated the so-called Holman Rule, which allows any legislator to add a provision to a spending bill that reduces an individual federal worker's pay to $1. So far, the rule hasn't been successfully used, and it doesn't directly give any new powers to the White House.
Despite minimal traction in Congress, the White House is moving ahead with its plans. One preview of the administration's approach could come on Feb. 12, when the White House releases its 2019 budget. It is expected to include the reorganization plans requested from agencies last year, although the extent of what will be included is unclear. Even lawmakers in Congress have had trouble learning about the agencies' reform plans.
"The Administration is taking a targeted approach to federal workforce reform to better prepare for the future-and we plan to highlight that in the fiscal 2019 budget," Hogan Gidley, deputy White House press secretary, said in a statement to POLITICO. "As the president indicated in the State of the Union, this would include streamlining processes for hiring and rewarding the best talent, and removing the poor performers."
In a sense, the administration's attempt to overhaul the government is similar to its effort to reform the regulatory system: Both are bureaucratic tasks that get relatively little attention but have huge implications for the country, and the administration is addressing them largely out of public view. On regulation, the White House has effectively shut down the pipeline of new rules and begun changing the structures of the regulatory system.
But experts said it won't be so easy to remake the civil service system, which is guided by federal statutes that give the administration much less flexibility. "What they've done on the regulatory front was exercising the authority they could use unilaterally," said Dan Blair, the former acting head of the Office of Personnel Management during the Bush administration. "When it comes to changing the civil service laws, you'll have to have Congress involved." That means compromising with Democrats who have expressed little interest in much of Trump's agenda.
Trump is also lacking a key player: He doesn't have a Senate-confirmed director of the OPM, the White House agency that oversees the federal workforce. His first nominee withdrew from consideration in August, and his replacement, whom Trump nominated in September, has yet to receive a committee vote in the Senate, leaving a crucial position unfilled.
If he perseveres, Trump will join a long line of presidents to attempt to update the government's personnel rules, which date back more than 60 years and haven't been overhauled since 1978. Previous attempts by both the Bush and Obama administrations failed to accomplish meaningful change, and as a result, the federal workforce continues to get older and agencies continue to struggle to bring in new workers.
Blair, who supports the idea of personnel reform, suggested that the Trump administration should focus less on the rules around firing and more on the hiring rules, where there could be more common ground. Previous administrations have tried to alter those rules to recruit younger workers, but those efforts have largely failed; the federal workforce has gotten older and older over the past few decades, a 2017 POLITICO investigation found. Blair argued that better hiring rules would lead to fewer problematic employees and less of a need to reform the rules around firing. "If you bring in quality, maybe that will negate the need for discipline in the future," he said, adding, "It's time that we update our laws and make it reflect 2020 rather than 1949."
Rule of law? I was not aware that we had one any longer, not for a long time now...