The US Supreme Court recently ruled in Trump v. Slaughter that the president has broad latitude to fire commissioners of most federal regulatory agencies. That decision has led to questions about what comes next, and whether that authority might extend to civil servants employed by the agencies.
Professor Christopher Walker believes that the civil service itself is probably not in danger, and in a new paper he makes the case—from a politically conservative perspective—for an administrative state that values “both accountability and expertise in regulatory governance.”
Walker, who became the associate dean for academic programming on July 1, recently answered five questions about the issue:
1. Why do conservatives generally tend to be skeptical of civil service?
For decades, legal conservatives have viewed the executive branch as one where the president should control it and should have the final say. In the Reagan era and both Bush eras, the civil services were viewed as very important but also as needing to be subservient to the agency head and the president.
That’s pretty conventional—a focus on making sure people are hired and fired based on merit, on creating a system where we encourage the best people to come. Yet when Trump was first elected, the rhetoric around agencies became, “It’s the deep state. They’re out to get us. They’re here to undermine presidential priorities.”
That fit reasonably well with the older-school conservative need for the president to keep control. But it goes a step further. Now, in the second Trump administration, you’re seeing a real push to weaken the role of the civil service. At the same time, you also have the Supreme Court embracing that unitary executive theory more fully—the idea that the president should be able to control the exercise of all executive power.
2. What is the value of a professional civic service?
While a lot of folks paint the civil service as far left, they’re not. They’re serious people, for the most part, and they care about law. On balance, they care about getting it right.
My vision for structuring the administrative state aims to preserve both expertise and accountability.
First, career civil servants should be hired and fired based on merit, so that they have a measure of independence from the agency’s political leadership. They should not be able to make final decisions without the agency head being able to override them, but civil servants must have the space to make the initial judgment—to look at the facts, apply the science, and make an expert-driven recommendation or initial decision to the agency head—without fear of being fired or otherwise punished for those recommendations.
Second, the political leadership at a federal agency—the “agency head”—must be able to make the final decisions for the agency. And, in turn, the agency head is politically accountable to the president through the president’s ability to fire the agency head at will. Yet the agency head must base those final decisions on inputs and recommendations from experts within the agency. Those expert civil servants, in turn, must have neutral competence and enjoy a measure of decisional independence from political leadership in terms of creating the administrative record and making policy recommendations to the agency.
In the paper, I recognize that this vision may cut against the “deep state” narrative on the political right, but it reinforces conservative values of protecting liberty and preventing government overreach as well as promoting innovation and free markets through fostering more effective, efficient, predictable, and stable regulatory environments. If you’re thinking about how businesses need to invest and develop their operations, they need an administrative state that’s stable and predictable. These are really important values if you’re a markets-oriented conservative.
3. What constitutional questions does the civil service raise?
The argument goes, if you believe in a unitary executive theory—if you believe the president should control the executive branch—your main clause is the vesting clause. It says the executive power shall be vested in the president.
The most muscular version of unitary executive theory interprets it to say that the president has to control every sliver of executive power—even getting down to the ability to hire and fire very low-level civil servants. I consider myself a unitary executivist. But the way I read that is that the president needs to be able to fire the head of the agency, and that’s enough.
I wrote another paper with Aaron Nielson of the University of Texas addressing this. We argue that the most muscular version of the unitary executive is not right as a matter of history, and it’s not right as a matter of the text and structure of the Constitution. And it’s definitely not right as a matter of where the Supreme Court currently stands. Some high-ranking civil servants are removable at will, but otherwise, Congress has a great deal of flexibility to limit removal and encourage a measure of decisional independence with many inferior officers and most civil servants.
4. Do you think that political conservatives are persuadable on the value of civil service?
I do—at least more traditional conservatives are persuadable—that’s why I wrote the paper.
One group is the anti-administrativists. They’re not the new political right, but they’re the ones who believe strongly in a unitary executive, the need for the president to control the executive branch. That’s my real audience.
At the Supreme Court, Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett already seem to be on board. I might be too optimistic, but Justice Samuel Alito and Justice Neil Gorsuch may also be persuadable.
The new political right, however, is harder to persuade because their vision is just different. Their project seems to be to gut and demoralize the civil service, motivated by fears of the deep state and bureaucratic resistance.
I think this vision is misguided if you’re on the new political right. They’re much more pro-regulatory than a traditional legal conservative in certain areas, like immigration and trade. They’re going to need a civil service to effectively regulate in those areas. But that’s not really my audience in this paper that makes the conservative case for a professionalized civil service.
5. How would you reform the system, if it were up to you?
First off, we need to protect the constitutionality of the civil service and as a policy matter strike the correct balance of preserving accountability and expertise in administrative governance. We also need to improve the process for hiring and firing based on merit. I would pay civil servants more.
We’re in a different world now, though, because in the second Trump administration, you’re seeing a lot of demoralization of the civil service. I think it’s dangerously shortsighted. Long term, I’m really worried about the pipeline for the civil service and how that’s going to affect everything. An expert-driven civil service whose decisions are subject to agency-head review reinforces traditional conservative values such as liberty, free markets, and perhaps counterintuitively more limited government. I fear what the federal government will look like in a world without a professionalized civil service.
