Dawn of the deep state
Paul Petrick
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Of the four presidential assassinations in American history, James A. Garfield’s may well carry the most significance for people today. In office only four months before being shot in a Washington train station, Garfield clung to life for an additional two months, earning him the dubious distinction of being the slain American president with the shortest tenure in office and the longest period in agony. Garfield’s assassin, Charles Guiteau, was an unknown and insignificant supporter of Garfield during the 1880 presidential campaign, with the delusional notion that his unknown and insignificant support entitled him to employment in the new administration. When his expectations went unrealized, Guiteau turned to violence.
Reformers led by Sen. George H. Pendleton (D-OH) sought to prevent future Guiteaus by eliminating Guiteau’s motive for the killing, namely the “spoils system,” whereby every presidential administration saturated the federal bureaucracy with party loyalists, a presidential prerogative that critics condemned as antithetical to good government. Disgust with the spoils system reached a critical mass in the wake of Garfield’s murder, prompting Congress to pass the Pendleton Civil Service Reform Act. Signed into law by President Chester A. Arthur 140 years ago this month, the Pendleton Act was a “Nixon to China” moment nearly a century before that term entered the lexicon. Arthur had once been the spoils system’s foremost apologist, having once occupied the plum patronage post of chief customs collector in New York City.
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Initially, the Pendleton Act was only a modest victory for those who believed that the executive branch should be as meritocratic as it was bureaucratic. While the new law introduced hiring via competitive examination and prohibited politically motivated demotions and dismissals, it originally only applied to 10% of what was then a federal workforce of 130,000. Nevertheless, Congress had planted the seed of civil service reform, and like every seed, it contained the potential for growth. Specifically, that potential lay in a provision of the Pendleton Act that permitted the president to increase the number of federal employees subject to civil service protection. Naturally, subsequent presidents sought to protect more and more of their appointees from being summarily replaced by their successors, and now over 90% of the federal workforce, which has ballooned to 2.9 million employees, enjoys civil service protection.
Unfortunately, the story does not end there. The competitive examination, a key Pendleton Act provision, was eliminated for most positions after lawsuits claimed that such examinations had a racial bias. At the same time, the range of employee misconduct warranting dismissal has narrowed, making the federal workforce less competitive and less accountable. And Watergate’s Mark Felt proved that a disgruntled office-seeker can still take out a president.
The unitary executive theory holds that all executive power flows from the president, but that theory does not match reality. The reality is that the president only has the power to appoint and dismiss a thin leadership echelon across the federal bureaucracy. Like an iceberg with a small portion visible above the surface and a terrifying mass below, the dual nature of the executive branch threatens to sink even as titanic a vessel as the United States of America.
The Pendleton Act was conceived by reformers who disliked politics because they distrusted democracy. They designed structures that diluted the people’s power and produced a federal bureaucracy insulated from presidential authority. This entrenched and unaccountable army of federal bureaucrats is what is colloquially known as the “deep state.” Knowing what we know about the Russian collusion investigation, the first Trump impeachment, and the recent “Twitter Files,” denying that the deep state exists, denying that it can develop an institutional agenda of its own, and denying that it has the power to thwart the conflicting agenda of a duly elected president betrays an obtuseness akin to J. Edgar Hoover’s stubborn insistence that the Mafia did not exist.
Other than Gavrilo Princip, no assassin casts a longer shadow than Guiteau. Because of him, the government of, by, and for the people has become a tenuous proposition. Fortunately, the Pendleton Act and successor statutes that permit the president to widen the net of civil service protection also permit its narrowing. Late in his term, former President Donald Trump created Schedule F, a new classification of federal employees with limited civil service protection. Although Schedule F was eliminated by the next administration, Trump has pledged to make all federal employees fireable by the president if he is returned to office.
Regardless of the Oval Office occupant, the need for 21st-century civil service reform will not go away. And with 87,000 new IRS agents, the deep state just got deeper.
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Paul F. Petrick is an attorney in Cleveland, Ohio.