Administrative State
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Thecivil service is made up of individuals other than military personnel who are employed by federal, state, or local government entities. These individuals, also known ascivil servants, are sometimes referred to as government bureaucrats or career administrators. In the context ofadministrative law, a civil servant is a civilian who is employed by an administrative agency.^[1]

In the context of the federal government,United States Code § 2101, defines the federal civil service as all unelected "positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services." The federal civil service includes members of thecompetitive service, theexcepted service, and theSenior Executive Service.^[2][3]

Background

The federal workforce of the United States during the late 18th century was very small—for example, the State Department was staffed by nine employees—and federal workers were rarely removed from office. However, politically-aligned patronage appointments and removals of federal employees became common during the 19th century, most notably under President Andrew Jackson. According to University of Tennessee professor Daniel Feller, Jackson "claimed to be purging the corruption, laxity, and arrogance that came with long tenure, and restoring the opportunity for government service to the citizenry at large through 'rotation in office.'" During this period, individuals were often rewarded for partisan loyalty and service through appointments to government positions, a process that became known among historians as the spoils system. After the assassination of President James Garfield in 1881 by a disgruntled federal job-seeker, President Chester Arthur supported the call to end the spoils system and implement a merit-based system for the selection of federal employees.^[4][5][6][7]

Pendleton Civil Service Reform Act

ThePendleton Civil Service Reform Act of 1883 eliminated the spoils system and established what became known as the competitive civil service, a merit-based system for the appointment of federal executive branch employees. The new system, overseen by theU.S. Civil Service Commission, allowed individuals to apply for government employment and compete through examinations rather than seek an appointment to a position on the basis of their political ideology or government connections.^[5][8]

During the late 19th century and early 20th century, members of the competitive civil service gained workers compensation protections, retirement annuities, and procedural protections against removal, which ensured that federal employees could only be fired for just cause. By the 1970s, however, federal employees began to express dissatisfaction with perceived shortcomings in their procedural protections and discriminatory practices in the workplace.^[4][9]

Civil Service Reform Act of 1978

See also:Civil Service Reform Act

TheCivil Service Reform Act of 1978 (CSRA) reaffirmed the merit system selection process, codified collective bargaining practices, and identified prohibited practices in applicable executive agencies and departments, including nepotism and discrimination on the basis of age, sex, race, religion, or other specified factors. The legislation also created guidelines for the removal of personnel for unsatisfactory performance and created the Senior Executive Service, a separate tier of administrators "designed to attract and retain highly competent senior executives," according to the legislation. Moreover, the CSRA replaced theU.S. Civil Service Commission with theOffice of Personnel Management (OPM) to implement rules and oversee the management of the federal executive workforce, the Merit Systems Protection Board to process employment-related hearings and appeals, and the Federal Labor Relations Authority to establish guidelines and resolve issues related to collective bargaining.^[1][4][10]

Scope and structure

U.S. Code § 2101 defines the federal civil service as all unelected "positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services." The competitive service, the excepted service, and the Senior Executive Service are subsets of the overarching federal civil service.^[1][2][3]

The federal civil service consisted of an estimated 2.1 million civilian workers and 500,000 postal service employees as of a March 2019 analysis by the White House.^[11]

Competitive service

See also:Competitive service

The merit system established by the Pendleton Act implemented the competitive service through the creation of classified positions in federal agencies. Classification standardized certain government positions according to the functions and responsibilities of the role. The Pendelton Act identified roughly 10 percent of civilian positions within the federal government as classified positions subject to merit-based selection. According to Murray Rothbard, former professor of economics at the University of Nevada, Las Vegas, these positions included clerks in Washington, D.C., as well as large post offices and customhouses. The remaining civilian positions in the federal government were labeled as unclassified positions and remained subject to the partisan appointment and removal of the spoils system.^[12][13]

Growth of classified positions

The Pendleton Act allowed for the president to convert unclassified positions to classified positions at his discretion, with the exception of laborers and high-ranking officials whose appointment required theadvice and consent of theU.S. Senate. Though the Pendleton Act originally granted the president the authority to remove classified employees, an 1897 executive order under President McKinley, later codified in the Lloyd-LaFollette Act of 1912, implemented protections against political removals for classified positions. According to Rothbard, classified positions in the federal government increased during the late 19th and early 20th centuries as presidents labeled unclassified positions as classified positions to protect the tenure of political appointments. Rothbard observed:^[12][13]

For example, President Theodore Roosevelt used his presidential authority to increase the number of classified positions during his administration. When Roosevelt assumed office in 1901, 46 percent of the positions in the federal civilian workforce were categorized as classified positions. When Roosevelt left office in 1909, the classified positions had been extended to include 66 percent of the federal civilian workforce.^[12]

By 1980, more than 90 percent of federal civilian employees worked in classified positions. A September 2016 report by the U.S. Office of Personnel Management identified 1,868,027 civil servants in the executive branch, with the exception of the U.S. Postal Service and certain other specified agencies.^[8][15]

Compensation

The Classification Act of 1923 established a uniform system of compensation for the classified civil service. The legislation organized classified positions into a series of grade levels with standardized compensation according to the duties and responsibilities of each role. Over the course of the 20th century, the compensation system for classified positions was modified and adjusted by Congress, including changes under the Classification Act of 1949, the Federal Salary Reform Act, and the Federal Pay Comparability Act of 1970. As of 2017, the U.S. Office of Personnel Management classified most positions according to fifteen grade levels, with certain exceptions, ranging from GS−1 to GS−15.^[16][17]

Excepted service

See also:Excepted service

The excepted service consists of unclassified civil service positions in the federal government that are not subject to the merit-based selection process of the competitive service. The excepted service allows agencies to recruit and hire individuals to fill certain positions for which candidates cannot be appropriately assessed through the competitive hiring process. Examples of excepted service positions include federal attorneys,administrative law judges, intelligence officers, chaplains, and certain scientific or technical experts. The U.S. Postal Service employs more excepted service members than any other federal agency.^[18][19][20]

Excepted service positions are not subject to the competitive service's appointment, compensation, and classification rules under Title 5 of theUnited States Code, but must still follow veterans' preference—the practice of showing preference for veteran applicants over non-veteran applicants in the hiring process. Agencies may determine the qualifications and requirements of excepted service positions.^[21][22]

Senior Executive Service

See also:Senior Executive Service

The Senior Executive Service (SES) was created under theCivil Service Reform Act of 1978 as a separate tier of government administrators "designed to attract and retain highly competent senior executives," according to the legislation. Members of the SES are recruited for their leadership and managerial experience and are hired to serve in senior executive roles below top-level presidential appointees within federal administrative agencies. Approximately 75 federal agencies employ SES members, according to a March 2017 OPM report.^[1][23]

Noteworthy events

Federal Circuit raises standard to remove federal employees (2021)

TheUnited States Court of Appeals for the Federal Circuit on March 11, 2021, set a new bar for firing federal agency employees in the caseSantos v. National Aeronautics and Space Administration (NASA).^[24][25]

The court found that NASA failed to provide justification for placing its employee, Fernando Santos, on a Performance Improvement Plan (PIP). An agency generally issues a PIP as a signal to a poor-performing employee before initiating disciplinary action.^[24][25]

The three-judge panel (JudgesKathleen M. O'Malley,William Bryson, andTodd Hughes) ruled that federal law requires agencies to justify the issuance of a PIP when a fired employee challenges a PIP-based removal. Prior to the court’s decision, agencies had not been required to justify the use of a PIP.^[24][25]

“Allowing a PIP to serve as the pre-removal notice required by Section 4303 is not the same as allowing the mere fact of a PIP to create a presumption that the pre-PIP conduct was actually unacceptable,” wrote Judge O’Malley in the opinion. “Thus, we hold that, once an agency chooses to impose a post-PIP termination, it must prove by substantial evidence that the employee’s unacceptable performance ‘continued’—i.e., it was unacceptable before the PIP and remained so during the PIP.”^[24][25]

The judges remanded the case to theMerit Systems Protection Board for further proceedings.^[24][25]

Legal challenges to President Trump's civil service executive orders (2018-2019)

See also:Civil Service Reform Act,E.O. 13836,E.O. 13837, andE.O. 13839

The following timeline identifies key events in a 2018-2019 lawsuit,American Federation of Government Employees, AFL-CIO, et al. v. Trump, brought by a group of federal employee unions against President Donald Trump's (R) three civil service executive orders issued in May 2018:Executive Order 13837,Executive Order 13836, andExecutive Order 13839.

October 2019: Injunction expires, agencies allowed to implement executive orders

The injunction blocking provisions of President Trump's three civil service executive orders expired on October 2, 2019. TheUnited States Court of Appeals for the District of Columbia Circuit on October 3 issued a mandate to implement itsJuly 16 decision vacating the district court ruling and allowing federal agencies to fully implement the orders.^[26][27]

September 2019: D.C. Circuit declines rehearing request

TheUnited States Court of Appeals for the District of Columbia Circuit issued an order on September 25, 2019, declining to rehearAmerican Federation of Government Employees, AFL-CIO, et al. v. Trump before the full court. The order did not provide a reason for the decision.^[28]

August 2019: Unions file for rehearingen banc before full D.C. Circuit

Federal employee unions challenging Trump's three civil service executive orders filed a petition on August 30, 2019, requesting a rehearing ofAmerican Federation of Government Employees, AFL-CIO, et al. v. Trump before the fullUnited States Court of Appeals for the District of Columbia Circuit. A three-judge panel of the D.C. Circuit held in July that the court did not have jurisdiction to rule on the case because theFederal Service Labor-Management Relations Statute requires labor practice complaints to be brought before theFederal Labor Relations Authority (FLRA).^[29]

August 2019: SEIU files new lawsuit claiming civil service executive orders exceed president's constitutional authority

A chapter of theService Employees International Union (SEIU) representingU.S. Department of Veterans Affairs employees inBuffalo, New York, filed a lawsuit in theUnited States District Court for the Western District of New York on August 13, 2019, arguing that President Trump's three civil service executive orders exceeded the president's constitutional authority and violated theCivil Service Reform Act. The union claimed that the district court had jurisdiction over the case in part because theFLRA had lacked a general counsel for almost two years—preventing the agency from hearing unfair labor practice complaints.^[30]

Because theUnited States Court of Appeals for the 2nd Circuit has appellate jurisdiction over theUnited States District Court for the Western District of New York, theD.C. Circuit's July 2019 decision upholding the civil service executive orders was not controlling on the case.^[30]

July 2019: D.C. Circuit panel reverses district court ruling, holds district court lacked jurisdiction to issue injunction

A three-judge panel of theUnited States Court of Appeals for the District of Columbia Circuit on July 16, 2019, reversed and vacated the district court ruling. JudgesThomas Griffith,Srikanth Srinivasan, andArthur Randolph held that the district court did not have jurisdiction to rule on the merits of the executive orders and that the plaintiffs should have brought the case before theFLRA as required by theFederal Service Labor-Management Relations Statute.^[31][32]

Trump administration officials on July 23, 2019, asked the D.C. Circuit to immediately lift the injunction blocking enforcement of the three civil service executive orders rather than wait for the 45-day grace period for rehearing requests to expire. The court denied the administration's request on August 14, 2019.^[33][34]

April 2019: D.C. Circuit hears oral arguments in appeal, DOJ claims district court lacked jurisdiction in case

TheUnited States Court of Appeals for the District of Columbia Circuit heard oral arguments in the appeal on April 4, 2019. An attorney for theU.S. Department of Justice (DOJ) argued that the federal courts lacked jurisdiction in the case and that the plaintiffs should have filed an unfair labor practices complaint with theFederal Labor Relations Authority (FLRA) instead. An attorney representing the union groups countered that the FLRA lacked the authority to weigh in on governmentwide rules that are not subject to collective bargaining negotiations.^[35][36]

November 2018: OPM instructs agencies to comply with effective executive order provisions

TheOffice of Personnel Management (OPM) released a memo in November 2018 instructing federal agencies to comply with the provisions of the civil service executive orders that remained in effect, including guidelines related to employee discipline and the use of official union time.^[37]

September 2018: DOJ appeals district court ruling

TheDOJ appealed the district court's ruling on September 25, 2018. The notice of appeal was filed with theUnited States Court of Appeals for the District of Columbia Circuit. Oral argument in the case was scheduled for April 4, 2019.^[38][39]

August 2018: District court ruling strikes provisions of executive orders, cites conflict with federal statute

JudgeKetanji Brown Jackson of theUnited States District Court for the District of Columbia struck down several provisions of President Trump's civil service executive orders in a ruling issued on August 25, 2018. The stricken provisions included components of the executive orders that Brown Jackson claimed conflicted with federal statute, such as limitations on the amount of government-funded time that full-time federal employees can dedicate to union activities, a reduction in the amount of time that poor-performing employees can demonstrate improvement, and certain restrictions on workplace issues that federal agencies can negotiate with unions.^[40][41]

ADOJ representative responded to the ruling on August 25, stating that the DOJ was "reviewing the decision and considering our next steps." Then-OPM Director Jeff Pon issued a memo to all federal agencies on August 29 stating that the OPM would comply with Jackson's order and encouraging compliance by other agencies. The OPM also rescinded agencyguidance related to the blocked provisions of the executive orders.^[40][42]

May 2018: Unions file suit against civil service executive orders, claim orders are unconstitutional and violate federal statute

The American Federation of Government Employees (AFGE) filed a lawsuit challenging the constitutionality ofExecutive Order 13837 on May 30, 2018. The lawsuit claimed that the order violates freedom of association protections under the First Amendment and alters sections of the Federal Service Labor-Management Relations Statute—Title VII of theCivil Service Reform Act of 1978—without congressional action.^[43][44][45]

Brown Jackson consolidated AFGE's lawsuit with two other lawsuits challenging Trump's civil service executive orders (E.O. 13837,E.O. 13836, andE.O. 13839) filed by the National Treasury Employees Union and a coalition of 13 smaller public sector unions. A hearing in the case took place on July 25, 2018.^[46]

Civil service provisions included in Trump administration's 2020 budget proposal (2019)

President Trump (R) released details of his 2020 budget proposal on March 11, 2019. The proposal included provisions that would impact the structure and internal procedures of the federal civil service.^[41]

A selection of the provisions were previously featured in Trump's three civil service executive orders (E.O. 13837,E.O. 13836, andE.O. 13839) issued in May 2018. These include proposals aimed at removing poor-performing federal employees and streamlining collective bargaining procedures. A federal district judge struck down several provisions of the executive orders in August 2018 and an appeal was pending before theUnited States Court of Appeals for the District of Columbia Circuit as of March 2019.^[41][47]

The following list identifies a selection of the civil service provisions featured in Trump's 2020 budget proposal:

• Establish new pay systems for special occupations—jobs for which “the General Schedule classification and pay system are not aligned to labor-market realities,” according to the proposal.^[41]
• Increase temporary hiring in order to employ more highly qualified experts.^[41]
• Eliminate certain retirement pensions in favor of contributions to the government's Thrift Savings Plan, which is similar to a 401(k) retirement savings plan.^[41]
• Create an industry exchange to allow nonprofit employees and academics to temporarily serve on federal projects.^[41]
• Increase the number of federal interns, which dropped from 35,000 in 2010 to 4,000 in 2018.^[41]
• Re-skill federal employees who currently serve in transactional positions that can be automated.
• Facilitate the removal of poor-performing federal employees by shortening the disciplinary timeline and increasing agency flexibility to lengthen probationary periods, among other provisions.^[47]
• Streamline federal collective bargaining procedures through a number of actions, such as stipulating when an agency should enter into formal discussions with union officials and eliminating the employee option for binding arbitration in favor of an appeal option with the Merit Systems Protection Board.^[47]

TheU.S. House of Representatives and theU.S. Senate must reconcile and approve a set of appropriations bills in order for the president to sign the budget into law. For more information on the federal budget process under the Trump administration,click here.

See also

• Pendleton Act
• Civil Service Reform Act
• United States Civil Service Commission
• Administrative law judge

External links

• U.S. Office of Personnel Management homepage
• Search Google News for this topic

Footnotes

v • e The Administrative State Main The Administrative State Project main page •Administrative State Project Index •Glossary of administrative state terms •Quotes about the administrative state •Administrative state •Rulemaking •Deference •Adjudication •Nondelegation doctrine •Ballotpedia's administrative state legislation tracker Pillars Agency control •Executive control •Judicial control •Legislative control •Public control Reporting Changes to the Federal Register •Completed OIRA review of federal administrative agency rules •Federal agency rules repealed under the Congressional Review Act •Historical additions to the Federal Register, 1936-2016 Laws Administrative Procedure Act •Antiquities Act •Civil Service Reform Act •Clayton Antitrust Act •Communications Act of 1934 •Congressional Review Act •Electronic Freedom of Information Act •Federal Food, Drug, and Cosmetic Act of 1938 •Federal Housekeeping Statute •Federal Reserve Act •Federal Trade Commission Act of 1914 •Freedom of Information Act •Government in the Sunshine Act •Independent Offices Appropriations Act of 1952 •Information Quality Act •Interstate Commerce Act •National Labor Relations Act •Paperwork Reduction Act •Pendleton Act •Privacy Act of 1974 •Regulatory Flexibility Act •REINS Act •REINS Act (Wisconsin) •Securities Act of 1933 •Securities Exchange Act of 1934 •Sherman Antitrust Act •Small Business Regulatory Enforcement Fairness Act •Truth in Regulating Act •Unfunded Mandates Reform Act Cases Abbott Laboratories v. Gardner •A.L.A. Schechter Poultry Corp. v. United States •Association of Data Processing Service Organizations v. Camp •Auer v. Robbins •Chevron v. Natural Resources Defense Council •Citizens to Preserve Overton Park v. Volpe •Federal Trade Commission (FTC) v. Standard Oil Company of California •Field v. Clark •Food and Drug Administration v. Brown and Williamson Tobacco Corporation •Humphrey's Executor v. United States •Immigration and Naturalization Service (INS) v. Chadha •J.W. Hampton Jr. & Company v. United States •Lucia v. SEC •Marshall v. Barlow's •Massachusetts v. Environmental Protection Agency •Mistretta v. United States •National Federation of Independent Business (NFIB) v. Sebelius •National Labor Relations Board v. Noel Canning Company •National Labor Relations Board v. Sears, Roebuck & Co. •Panama Refining Co. v. Ryan •Securities and Exchange Commission v. Chenery Corporation •Skidmore v. Swift & Co. •United States v. Lopez •United States v. Western Pacific Railroad Co. •Universal Camera Corporation v. National Labor Relations Board •Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council •Wayman v. Southard •Weyerhaeuser Company v. United States Fish and Wildlife Service •Whitman v. American Trucking Associations •Wickard v. Filburn •Wiener v. United States Terms Adjudication (administrative state) •Administrative judge •Administrative law •Administrative law judge •Administrative state •Arbitrary-or-capricious test •Auer deference •Barrier to entry •Bootleggers and Baptists •Chevron deference (doctrine) •Civil servant •Civil service •Code of Federal Regulations •Codify (administrative state) •Comment period •Compliance costs •Congressional Record •Coordination (administrative state) •Deference (administrative state) •Direct and indirect costs (administrative state) •Enabling statute •Ex parte communication (administrative state) •Executive agency •Federal law •Federal Register •Federalism •Final rule •Formal rulemaking •Formalism (law) •Functionalism (law) •Guidance (administrative state) •Hybrid rulemaking •Incorporation by reference •Independent federal agency •Informal rulemaking •Joint resolution of disapproval (administrative state) •Major rule •Negotiated rulemaking •Nondelegation doctrine •OIRA prompt letter •Organic statute •Pragmatism (law) •Precautionary principle •Promulgate •Proposed rule •Publication rulemaking •Regulatory budget •Regulatory capture •Regulatory dark matter •Regulatory impact analysis •Regulatory policy officer •Regulatory reform officer •Regulatory review •Rent seeking •Retrospective regulatory review •Risk assessment (administrative state) •Rulemaking •Separation of powers •Significant regulatory action •Skidmore deference •Statutory authority •Substantive law and procedural law •Sue and settle •Sunset provision •Unified Agenda of Federal Regulatory and Deregulatory Actions •United States Code •United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States •United States Civil Service Commission •U.S. Government Accountability Office •U.S. Office of Information and Regulatory Affairs •U.S. Office of Management and Budget