Over the course of the first year of his second term in the White House, Donald Trump’s attempts to assert presidential authority over the whole executive branch might well be his defining legacy. If his actions prevail, they would bring a massive reshaping of America’s democratic republic.
He has fired officials from agencies or government positions long presumed to be independent in decision-making. And because Mr. Trump’s actions have brought lawsuits, a conservative-leaning Supreme Court seems poised to rule soon that the separation of powers between the three branches of government does allow such a “unitary” – or powerful – executive.
To many Americans who voted for Mr. Trump, he is merely making good on his electoral legitimacy to fulfill campaign promises. He is altering the policies of the administrative state through the removal of “unaccountable” government workers deemed to be opposed to the chief executive’s vision. A few previous presidents, from Andrew Jackson to Franklin Roosevelt to Richard Nixon, have assumed similar authority.
Such a maximal use of the presidency is seen by Trump backers as a type of accountability to a democracy’s ultimate sovereignty: the will of the people as expressed through elections. The Constitution states the United States president is solely charged to “take Care that the Laws be faithfully executed.”
“A feeble Executive implies a feeble execution of the government,” wrote Alexander Hamilton.
To the opponents of a unitary executive, however, both Congress and the courts have put necessary checks on a president’s ability to fire career civil servants or meddle in regulatory agencies set up by Congress to tap professional expertise in solving today’s complex, long-term problems.
Agencies also have their own internal accountability, such as obedience to law. They must listen to public input and not necessarily a president who is self-serving, acts by whim, or will be out of office soon. They must provide reasoned justifications for their decisions.
There is also a third way, one that is now being practiced in some state governments that have leaned toward allowing stronger governors to shape agency behavior while improving the lines of accountability.
According to a report last year by the Manhattan Institute, about 20 states have made reforms since the 1990s that have decentralized hiring capabilities and the resolution of grievances to agency managers, allowed variation in pay-based on performance, and made many or almost all state workers to be employed at-will.
“Most observers and researchers agree that state reforms’ effects have been either positive or, at worst, neutral,” says the report, Radical Civil Service Reform Is Not Radical. “There have been general reports of improved performance with little evidence of politicization.”
In Indiana, for example, reforms led to fewer complaints by state employees and “[a]gency performance [was] up in almost every category, including customer service and teamwork.”
Rather than being punished or removed, civil servants in any government can be given incentives to change and allowed to face mistakes honestly and learn from failures. Through deliberation and consensus, elected leaders can help career officials through regeneration, not retribution.
Fear can be a hindrance to the listening and learning needed to align government in harmonious action. At its best, political accountability relies on humility and patience more than assertions of moral superiority. Many states are adopting such approaches.
“Gubernatorial administration emerges as a promising vehicle for efficacious governing and a new source of state resilience,” wrote Miriam Seifter, a law professor at University of Wisconsin, in a 2017 Harvard Law Review article.
States have long been laboratories for new ideas in governance. Yet, “despite the decades of evidence, states’ reforms have had remarkably little impact on the conversation about the federal civil service,” said the Manhattan Institute report. “The federal government can and should learn from them.”
