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Our Constitution Works

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Anna Marie Schuh
August 26, 2022

“I do solemnly swear (or affirm) that I will … to the best of my ability, preserve, protect and defend the Constitution of the United States.”

These words are from the oath of office that all U.S. government employees take. However, recent events suggest fealty to the Constitution is under attack. To understand the nature of this attack, we need to understand the genesis of the oath, the history of the civil service and the separate roles of the political and career appointees.

In writing the Constitution, the founders debated the need for an oath to defend the Constitution. Two issues were fundamental to that debate: the primacy of an oath to the federal government over oaths to state governments and a need to avoid religious requirements for government service. The founders wanted federal workers to be loyal to the welfare of U. S. citizens rather than to any governmental unit, organization, philosophy or person.

George Washington set the precedent in using loyalty to the Constitution and competence as criteria in federal employment. Thomas Jefferson added the criterion of partisan support. Andrew Jackson substituted working class individuals for the elites selected by the earlier presidents. Still, Jackson continued to employ competent individuals who were loyal to the Constitution. Presidents after Jackson increasingly focused more on partisanship rather than competence. Still, until recent times, no president altered loyalty to the Constitution as a requirement for federal employment.

The impact of partisanship hiring practices were particularly evident during the civil war with incompetent employees negatively affecting war efforts. Rutherford Hayes unsuccessfully attempted to deal with government corruption through civil service reform. However, with the assassination of James Garfield by an unsuccessful job seeker together with the fact that the Republican Party lost both the Senate and the House in the midterm election, Congress passed the Pendleton Act in the December 1882 lame duck session expecting that they would lose the presidency in 1884 and hoping to maintain influence through grandfathering appointees into the new civil service system.

Political appointees and career appointees have distinct roles in government. A political appointee’s primary role is to make policy and support the implementation of that policy. A career appointee’s role is to use technical expertise to implement the policy decision made by the administration. In making policy decisions, political appointees are accountable to the citizen through the election process. In making technical decisions, career appointees are accountable through the civil service performance management process. This approach allows the government to meet citizen expectations through a technically competent process with politically neutral implementation. This method supports the notion that the interests of the citizen are primary in the process.

During the Donald Trump presidency, two initiatives attempted to move appointee loyalty from the Constitution to the president as a person. The first initiative was nondisclosure agreements. These agreements, first instituted in the White House in 2017, banned “nonpublic, privileged and/or confidential information” from disclosure. A president has executive privilege and national security laws protect other government information. So, the need for nondisclosure requirements would seem unnecessary for governmental purposes. However, as a candidate, Trump noted that nondisclosure agreements also guarded personal information. Securing silence about personal information is a way of ensuring personal loyalty.

Schedule F is the second initiative that weakens loyalty to the Constitution. Schedule F is an at will appointment without appeal rights covering policy related positions of approximately 50,000 federal employees who are currently appointed competitively. While these employees do not decide policy, they provide crucial technical input to the policy making process. Trump created Schedule F through an Executive Order in October 2020. Joseph Biden canceled Schedule F in January 2021. Trump has indicated on multiple occasions that he would reinstitute Schedule F if reelected as president and some in Congress would legislate it.

For these 50,000 employees, Schedule F would move loyalty from the Constitution to loyalty to a person, the president. The 2019 SharpieGate case highlights the problem. Before Hurricane Dorian, Trump incorrectly tweeted that the hurricane would hit Alabama. Although this prediction was inconsistent with National Hurricane Center (NHC) guidance, Trump provided an NHC map with black marker loops extending the hurricane path to Alabama to support his tweet. NHC was silent on this map at the time. A subsequent internal study found that the scientists did not respond to the inaccuracy because of political pressure. The hurricane never reached Alabama where citizens who followed the tweet may have taken unnecessary efforts to avoid the hurricane. As a result, greater pressure was placed on the employees predicting the weather inthe future, to factor in the wishes of the executive to their scientific predictions.

On taking the oath of office after Richard Nixon resigned, Gerald Ford said: “Our Constitution works; our great republic is a government of laws and not of men. Here, the people rule.” Loyalty to the Constitution is a value that has spanned the life of our country. It is a value that has made our democracy endure. Now that value is under attack.

Author: Anna Marie Schuh is currently an Associate Professor and the MPA Program Director at Roosevelt University in Chicago where she teaches political science and public administration. She retired from the federal government after 36 years. Her last federal assignment involved management of the Office of Personnel Management national oversight program. Email: [email protected]; Twitter: profschuh.

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