Biden quietly adopts Trump civil service policies

Apparently, what is good for the goose is not good for the gander. When President Donald J. Trump signed executive orders making firing federal employees easier Congressional Democrats denounced them. Candidate Biden promised “to protect[] the civil service merit system and federal workers’ due process rights.” But President Joe Biden’s administration is forcing career employees out. This hypocrisy demonstrates why civil service laws need reforming.

Within days of taking office Mr. Biden signed Executive Order 14003. That order proclaimed “career civil servants are the backbone of the federal workforce” and repealed the Trump orders easing dismissals. And in demonstration of his commitment to protect the civil service system … Biden’s appointees are purging career staff at the Consumer Finance Protection Bureau (CFPB). Government Executive magazine reports:

“CFPB in recent months has offered separation incentives including early retirement and launched investigations into career senior executives to sideline them, targeting about a half-dozen of the highest-ranked non-political staffers at the bureau … At least one top executive is indefinitely on paid administrative leave after the bureau launched an investigation into the executive’s hiring actions. 
Multiple individuals with knowledge of the events described the probe as frivolous and intended only to push the employee aside. The impacted employees are mostly in the position of associate director and members of the Senior Executive Service, the top ranking level for career federal workers.” 

The CFPB does not even deny these charges. Perhaps Mr. Biden should update EO 14003 to read “Never mind.” What is going on? 
The answer is simple. Republicans and Democrats have different visions for the CFPB. Democrats favor aggressive regulation, while Republicans favor greater restraint. The Trump CFPB hired employees who did not oppose their ideas. The Biden CFPB wants career staff who embrace their views. So Mr. Biden’s team is trying to force Trump-hired staff out and replace them with ideological allies. 

A former career CFPB employee stated: “It’s very clear what’s happening—it’s forcing people out who are not political actors. This is being done in a pretty underhanded way and, frankly, they are getting away with it.”

President Biden is being hypocritical. But this is also how democracy should work.

Career employees have enormous control over agency operations. They can considerably advance or hinder a policy agenda. In some cases, they can even push policy in the opposite direction agency leadership wants to go. Widespread career resistance made President Trump’s job much harder. Mr. Biden’s team wants none of that at CFPB. So they are forcing out career employees they do not believe they can rely, replacing them with those they believe they can.

This is perfectly appropriate. No one votes for career bureaucrats. They have no democratic mandate to pursue their preferred policies. If democratically accountable officials do not have confidence in career employees, they should be able to easily remove them. America’s civil service long operated this way. 

Popular history says Congress created civil service protections to end the spoils system. Like so much popular history, this is untrue. The Pendleton Act of 1883 replaced the spoils system with merit hiring. But it placed almost no restrictions on the president’s ability to fire employees. The Founders of the civil service believed removal protections would “seal up incompetency, negligence, [and] insubordination.” So, for over 6 decades, federal employees could not appeal removals.

Congress gave veterans appeals rights during World War II. This had nothing to do with combating patronage. Instead, Congress was preventing agencies from bypassing veterans hiring preferences through pretextual firings. 

By the 1960s, however, most federal employees were veterans. Excluding non-veterans came to seem arbitrary. So Presidents John F. Kennedy and Richard Nixon extended civil service appeals to non-veterans too. Congress codified this system in the Civil Service Reform Act of 1978—the law Biden’s team is circumventing today.

Their behavior may violate civil service laws. But that is just an argument for changing those laws. President Biden openly proclaims his love for the civil service. On Inauguration Day, he told career federal employees, “you are the ones running the show.”  If even President Biden’s team needs a freer hand to remove career staff, what does that imply for a president less aligned with the career bureaucracy?

 Allowing agencies to remove employees at will would solve these problems. Several states have adopted this system for their workforces. The results have been positive. These states continue to operate effective and professional civil services. And these reforms have made state employees particularly responsive to agency administrators’ priorities. The Biden Administration evidently feels the need for similar responsiveness at CFPB.

It has long been observed that hypocrisy is the tribute vice pays to virtue. President Trump signed executive orders making firing intransigent career staff easier. President Biden criticized and repealed these orders. He is also permitting his subordinates to surreptitiously do everything Trump was accused of President Biden’s motto for the civil service appears to be “do as I say, not as I do.” 

  • James Sherk is the Director of the Center for American Freedom at the America First Policy Institute. He previously served as a Special Assistant to the President in the Domestic Policy Council at the White House during the Donald J. Trump Administration.

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