How the Supreme Court Sabotaged Civil Service Reform

...In presuming that this act was an admission of guilt, the Court said, the state had failed to afford the teacher the “due process” required by the Constitution...

...The ‘New Property’ The part of the Constitution that caused all the trouble is the Due Process Clause, which says that the government shall not “deprive any person of life, liberty or property without due process of law...

...Let’s start with McCarthy...

...Instead, even after Arnett, the Justices preferred to see the Constitution as a sort of super-Pendleton Act, extending the civil service laws to even those aspects of government employment untouched by the statutes themselves...

...Prior to the 1950s, the law on firing government employees was fairly simple: the government could constitutionally fire an employee without j u m p i n g t h r o u g h a n y procedural hoops...

...The net effect of their efforts was to add a permanent layer of red tape to the bureaucracy, and to hamper the ability of the government to perform all the regulatory and redistributive functions liberals care about...

...The courts, wrote one eager law reviewer, should “regard life, liberty and property as encompassing everything of which a person can be deprived, and hold that a person has a claim within the ambit of the due process clause whenever governmental action has accrued to his detriment...

...But bargaining with the unions was to be expected, and there was even some virtue in starting the negotiations from a tough position...

...After the White House sent this revised proposal to Congress, and at each stage in the bill’s passage into law, what had happened in the Executive Office Building happened again...

...By the time the bill became law, the provisions for firing unproductive civil servants had expanded to become a complex three-stage pyramid of procedural hurdles: First, an employee is entitled to 30 days notice of the “adverse action,” and a chance to rebut the charges against him...

...Those who wanted to make it less difficult to fire incompetent civil servants not only had to negotiate with the employee unions, and t h e i r congressional champions, but with an unseen third party-the Supreme Court...

...Two years later, in Arnett v. Kennedy, a divided Court extended this “property”right to include thejobs of federal civil servants...

...In effect, it presented them with a choice: give all employees the right to cumbersome trial-type hearings, or risk passing a law that would be struck down by the Court...

...The very first case of any consequence is going to be in the courts,” Ford warned the conferees, “and then Scotty [Civil Service Commission Chairman Alan “Scotty” Campbell] is going to be sitting with a death row over there of thousands of cases waiting to see what the Supreme Court is going to do...

...Even to civil libertarians, government employment is beginning to look like one area where the Court got carried away by the “new property” fad...

...Finally, the discharged employee can seek review of the MSPB’s ruling in a federal appeals court...

...In 1972 the inevitable happened...

...Forty years ago, however, the average attorney would have stared back in disbelief at anyone who told him that a federal job was property, just like a plot of land...

...A discharged employee, the Court majority implied, could demand a full inquest, with lawyers, testimony and cross-examination, if he chose to fight his dismissal...

...This “thoughtful reconsideration” has so far eluded the Court...

...That will happen the day the Justices rule that a losing candidate for reelection can successfully sue to get his office back...

...As a bureaucrat in a patronage system, he could only expect to retain his job as long as his party remained in power...

...How the Supreme Court Sabotaged Civil Service Reform by Robert M. Kaus Sometime last January a radical proposal landed on the desks of Stuart Eizenstat’s aides in the rococco Old Executive Office Building...

...Armed with these opinions, Lazarus and Simmons successfully led a push to change the draft proposal...

...No, there was another, trickier problem-the proposal might be unconstitutional...

...It took a lot of ambitious thinking, and a bit of history, before the idea became second nature...

...But there was a key difference between those cases and the “new property” theory...

...The administration hopes, at best, for a 60-day “turnaround” between the date of firing and the decision of the MSPB...

...In retrospect, the crusade for the federal employee’s job rights appears to have been, at best, misguidedparticularly from the point of view of the liberal lawyers who led it...

...The memo, prepared by the Civil Service Commission and the Office of Management and Budget, certainly fit the President’s requirements, particularly in the critical area of removing “no n- p e r f o r m i n g ” em p 1 o ye es . To replace the byzantine structure of hearings, notices, and appeals to which civil servants were then entitled, the Roberr M. Kaus is an editor of The Washington Monthly...

...The liberty to engage in a profession perhaps-“the right to type,” you know, that sort of thing...

...A generation of liberal lawyers was weaned on the struggle against the persecution of these employees, and it was a great liberal victory when, .in 1956, the Supreme Court stopped the dismissal of a New York college teacher who had been fired for taking the Fifth Amendment at a federal loyalty inquiry...

...And, when the voters of Chicago elected a Democratic sheriff named Elrod, Burns was fired-as everyone knew he would be...

...You would be wrong...

...All that you needed to make a “new property”right was some action by the government that was hurting somebody, and liberals had a field day finding injustices that could be cured by application of this recipe...

...Why, when the government is doing the hiring and firing, is the situation so different that lawyers and judges should fall all over themselves with constitutional concern...

...Simon Lazarus and Stephen Simmons, two lawyers on the Domestic Council, were particularly disturbed by this possibility...

...All t h a t changed d u r i n g t h e McCarthy era, as red-hunters searched the government payrolls for Communists and t h e i r sympathizers...

...Such patronage dismissals, Justice Brennan said in his opinion, were unconstitutional...

...William Ford repeatedly and effectively argued that unless more protections for employees were added, the whole reform package would be threatened...

...But this was no time for conceptual nicety, and over the next decade “due process” was repeatedly invoked in attempts to save the careers of officials charged with subversive leanings...

...But Reich’s article fell on the receptive ears of a booming civil rights industry, whose whole raison dktre was finding more and more ingenious applications for new constitutional theories like Reich’s...

...memo proposed a simple procedure: Employees could be dismissed by the concurrence of three supervisors-the one who initiated the discharge, a higher-up, and a third supervisor experienced in deciding such disputes...

...While the decisions of the Supreme Court were fuzzy, they appeared to require that every civil servant be given a full-fledged trialtype hearing before he could be finally discharged...

...By the time the decision memo reached Carter’s desk, the right to an evidentiary appeal had been res to red...

...These principles were neatly summed up in Oliver Wendell Holmes’ 1892 statement that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman...

...The absurd culmination of this attitude came in Elrod v. Burns, a 1976 case in which the Supreme Court imposed its version of the “merit system” on the venerable patronage machine of Chicago-and, incidentally, on all the other state, local and federal government institutions that had previously avoided the bureaucratic arteriosclerosis of the civil service...

...But the Court, we may imagine some astute law review editor pointing out, had yet to extend this principle to its ultimate application...

...The board that performed the MSPB’s function before the recent reorganization, however, took an average of 168.9 days to decide each case...

...These decisions were well-received by the legal profession’s avant-garde...

...They called in some legal scholars and the Justice Department...

...Law reviews-student-run journals that are the primary outlets for American legal scholarship-soon converted Reich’s proposal into an abstract legal formula capable of almost unlimited application...

...Surprisingly, while Reich noted that the government accounted for 20 per cent of all jobs, and that many other j o b s depended on government contracts, he didn’t put much emphasis on p r o t e c t i n g the i n t e r e s t s of government workers...

...A political science professor at a Texas state college was dismissed, and he sued to get his job back...

...This time, though, the Supreme Court stepped in...

...they penalized Burns for expressing his Republican sympathies...

...Whether you were discharged because you were a red, or because you slept at work, you were constitutionally entitled under the “property” doctrine to “due process...

...He notes a “thoughtful reconsideration” of the issue by Professor William Van Alstyne, who concludes “There is something abrasive and offensive, something anachronistic, in the idea that public sector positions can be appropriately described as the property of the individual status holder...

...In fact, the threat of Arnett was so great that it was successfully used to attack a provision in the White House’s bill that dared to go so far as to deny employees a hearing if there were no factual disputes to hear...

...Then, if he wants, he is entitled to a trial-type hearing before the new Merit Systems Protection Board (MSPB), at which his agency must demonstrate that “substantial evidence” supported the decision to fire...

...The new rule applied indiscriminately to every deprivation of the “property interest” in a job...

...For example, what could be more important to an individual than his government job...

...Instead, he concentrated on cases, like cutoffs from welfare benefits, in which the injustice of arbitrary government action seemed overwhelming...

...What a civil service job is, in modern constitutional theory, is property...

...The Supreme Court was a bit more cautious in its approach, but after a few years of exhortation by the legal journals-and after a few of the law students who had written those articles had served their tours of duty as assistants to the Justices-the Court started creating a series of “new property ” rights . Welfare pay men t s , of course, were first on the list, with the Court ruling in 1970 that a state couldn’t remove a recipient from the rolls without first giving him a chance to prove his eligibility at a quasijudicial hearing...

...Professor Laurence Tribe, a liberal defender of judicial activism, admits concern over “attempts to squeeze public office-holding into the mold of private property entitlements...

...After all, how could the courts allow him to be deprived of his valuable government job simply because of the views he expressed in a campaign...

...The job, the teacher said, was his “property,” and the state shouldn’t have been able to take it away without giving him, in effect, a mini-trial at which he could dispute the grounds for dismissal...

...Yes, came the answers, there were indeed constitutional difficulties...

...But if two men have to take credit for the spectacular growth of the constitutional job rights of government workers, they would probably be Senator Joe McCarthy and Charles Reich (the latter better known as author of the ’60s bestseller, The Greening ofAmerica...

...If these three agreed that an employee wasn’t performing up to snuff, the employee would be fired, then and there, with only a limited right of appeal for “substantial procedural error...

...Firing a federal civil servant does not per se deprive him of “liberty” under the Due Process Clause...

...guy...

...It was the threat of unconstitutionalityof judicial veto, as it weret h a t s c a r e d C a r t e r ’ s a i d e s and supporters into watering down their reforms...

...Burns, it seems, was a minor functionary in the office of the Republican sheriff of Cook County, Illinois...

...During the House-Senate conference, for example, Rep...

...From welfare the Court moved on to drivers’ licenses, which became “property” under the Due Process Clause in 1971...

...Significantly, the right on which Reich seized as his model was the property right, and he argued that all manner of government benefits should be “property” under the Due Process Clause, with elaborate procedures (the “due process”) required before the benefits could be withdrawn...

...Since the effect of Arnett has been to help gut the most important piece of legislation Congress addressed last term, we have good reason to question the wisdom of that decision-and of the property rationale that underlies it...

...And that’s just the appeal to the MSPB...

...He was troubled by the growing importance of government largessefrom welfare payments, to broadcast licenses, to admission to the bar, the well-being of m o r e a n d more Americans seemed to depend on what sweeping and original article, Reich described this growing dependence as a threat to individual liberty...

...he could even be sacked solely because of his political inclinations...

...Tack a 30-day notice in front of that, and a trip through the clogged federal appeals court at the end, and you’ve still got a system under which supervisors will be asking themselves, “Is it worth a year or more of my time trying to fire this What the history of the civil service bill shows is that the main obstacle to changing this system is no longer the Congress, or even the unions-it’s the courts...

...Today, law students know they are well on their way to “thinking like lawyers” when this strained reading of the Founding Fathers’ words begins to make sense...

...Taking away someone’s government job had become a serious constitutional matter...

...Just reading the provision, you might not think it was designed to protect civil servants...

...For one thing, the memo surely would provoke opposition from federal employee organizations...

...But, the law reviews noted, there were still some areas where the new formula hadn’t been applied...

...The Court didn’t specify, in terms of the language of the Due Process Clause, just what t h e teacher had been deprived of-was it life, liberty, or property...

...So, if you’re expecting the new civil service reforms to create, as Carter put it, “a climate in which managers may discharge non-performing employees,” don’t hold your breath...

...His solution was to restore the status ofthe individual citizen by giving him constitutional rights to the largesse he received...

...Just as ten acres and a mule had been the basis for individualism in earlier times, Reich reasoned, so his “New Property” could preserve individual freedom in the “joyless landscape of the public interest state...

...Arnett is the case that gave civil service reformers in the Carter administration the biggest headaches...

...In private business, after all, the courts are quite willing to say that being fired isn’t the end of the world for an employee-at least no court has yet ruled that the Constitution requires private employers to go through evidentiary hearings to determine if each and every discharge is justified...

...Despite the proposal’s fairly dramatic potential for improving bureaucratic performance, some of Eizenstat’s aides were troubled...

...It’s easier to fire a civil servant now, but one shudders to think how long an employee with the right kind of lawyer could prolong the appeal of a discharge under the new system...

...In the 50s, the courts had protected employees who had been fired for exercising some constitutional privilege, like the right against self-incrimination...

...Moreover the government employee worked-as far as the Constitution was concerned-at the will of his superiors...

...But, knowing the need for judges to elaborate on the Constitution’s purposefully vague language, you might speculate that firing a federal employee would be construed, in some esoteric way, to be a deprivation of, e r . . . liberty...

...The Supreme Court was unanimous in its a g r e e m e n t . I n deciding t h a t a government job could be “property,” the Court handily cited as legal precedent the McCarthy-era cases that had reinstated employees in the name of “due process...

...At the same time, the Court announced its intention to guarantee those employees their “due process” even if the Congress chose to cut back on the procedures required in the statutes...

...Henceforth, according to Brennan, even political appointees at Burns’ level could only be fired for “good cause...

...Given the modern emphasis on p r o t e c t i n g i n d i v i d u a l s a g a i n s t significant inflictions of harm,” one commentator complained, “why have the courts excluded public employees from the expanded panoply of the Due Process Clause...

...It was a draft “decision memo” on civil service reform-the “centerpiece” of President Carter’s reorganization plans and the main vehicle for his efforts to ‘‘increase government’s efficiency by placing new emphasis on the quality of performance of Federal workers...

...The civil service idealthat government service should be free from all political risk-had come to Cook County...