Changes in Supreme Court precedent and presidential practice have strengthened the President’s hand while destabilizing and dismantling the regulatory state. In case after case, the Court has maximized the President’s power to control and to fire administrative officials, such as the head of the Consumer Financial Protection Bureau. Administrative law judges, who number in the thousands and hear cases ranging from disability benefits to collective bargaining, may also soon be subject to direct political control. The trend towards presidential direction of administration, even contrary to statute, is only gaining steam. Last term, in Trump v. United States, the Court held that the President’s control over appointed officers is at the “core” of executive power, and thus beyond the reach of criminal accountability.
Presidents have eagerly taken advantage of these developments, and Trump surely will continue to do so in his second term. In his first go-round, President Donald Trump’s “schedule F” executive order purported to remove merit protections for vast swaths of the civil service with “policy-making” responsibilities. While much less aggressive, President Biden’s removal of the head of the Social Security Administration without cause likewise traded on the Court’s sustained effort to break down the wall between “politics” and “administration,” a separation that has been central to executive branch operations for over a century. With Trump preparing to occupy the presidency once more, the trend will likely only increase. Presidents and Justices have collaborated to remake the executive branch into an instrument of the President’s personal power and partisan interest. The second Trump term is likely to tell us much more about this partnership. In particular, we will learn what limits—if any—the Court is willing to place on personal rule. Katherine Shaw’s Partisanship Creep shows how these administrative-law problems are of a piece with other developments in constitutional jurisprudence and practice. These developments have given a greater scope to lawful political partisanship in government decision-making. Cases on public corruption, campaign finance, and partisan gerrymandering have loosened legal controls around purely partisan motives in basic public functions, from election administration to transportation infrastructure.
Shaw shows that this trend is a departure from a pre-existing constitutional settlement that restricted the role of partisanship in various ways. This settlement included legislation guaranteeing an independent, expert, apolitical civil service; case law on constitutional protections for government officers; and executive branch practices such as the norm against presidential direction of law enforcement decisions. Finally, the settlement has emerged from congressional impeachments from Justice Samuel Chase to Trump. All of these areas of law and constitutional practice converged on the view that partisan considerations should not play a role in at least certain kinds of government decisions.
Among these elements, Shaw’s discussion of constitutional cases concerning the civil service is particularly novel and instructive. In rejecting a First Amendment challenge to the Hatch Act in United States Civil Service Commission v. National Association of Letter Carriers (1973), the Court described the principle of “merit performance rather than political service” as a “judgment of history.” Proponents of civil-service impartiality will surely appreciate Shaw’s recovery of this resounding endorsement from the high court.
But Shaw’s study reveals that the exact nature of the civil-service settlement is uncertain. In Elrod v. Burns (1976), a plurality of the Court held patronage dismissals of state employees to violate the First and Fourteenth Amendments. Intriguingly, the concurrence from Justices Stewart and Blackmun focused on the narrower question of whether “nonpolicymaking” officials could be removed for partisan reasons. This category of “policy-making” responsibility is precisely the line at which schedule F would withdraw merit protections from civil servants. It is not clear that any “judgment of history” has been rendered on this contested point.
In defining and critiquing the role of partisanship in government decision-making, Shaw is particularly concerned with what she calls “low politics:” struggles for power between political parties, rather than disputes over ideology or principle. Such power struggles threaten basic constitutional principles such as the separation of powers, the rule of law, and good administration. As Shaw puts it, “one of the basic obligations of government is to treat members of the polity as possessing equal worth and dignity; a broad, merit-based selection process for choosing government workers best advances that goal.”
Unpacking the relationship between equality and dignity, on the one hand, and merit, on the other, will be of crucial significance in thinking through the implications of Shaw’s illuminating article. In particular, one might ask whether respect for the dignity of persons requires due care for the social and natural facts that promote their well-being. Respect for their equality might also require attention to those facts that determine whether or not they are able to enjoy equal opportunity or the equal protection of law. Such inquiries may require expertise and may be imperiled by undue political pressure. At the same time, as we bring facts to bear to determine the actionable content of “equality” and “dignity,” we come quite close to decision-making about contested questions of political value. Are these questions we want civil servants to answer? Under what conditions?
Another key question that Shaw’s analysis leaves open for further normative and descriptive study is the relationship between “partisan” and “personal” power. In Trump’s first impeachment, the House of Representatives found that Trump solicited the interference of Ukraine in the Presidential election “for corrupt purposes in pursuit of personal political benefit.” The impeachment managers referred to the “great personal political value” that a Ukrainian investigation would have for Trump.
When it comes to Trump’s style and practice of rule, the “personal” seems to matter more than the “partisan”—a political trait that is even more glaring in light of his recent appointments, which seem to converge around personal loyalty rather than adherence to a policy or party vision. He seems not to be interested in the health of the Republican Party as such, but rather has coopted it for his own purposes. Likewise, the unitary executive theory can be seen as facilitating the President’s personal rule, and his or her control over national politics, more so than it facilitates the rule of the President’s party. If, however, constitutional case law and presidential practice continue to sweep away the civil service system, it is conceivable that the party system, and Congress, could be reinvigorated by the need to staff agencies and the desire to preserve the party’s future from an idiosyncratic, purely personal presidency. Shaw has provided us with the legal materials and normative insights to pose and answer such urgent questions.
