Executive Power Over Employees
Summary:
In this episode of FEDtalk, the hosts are joined by author and lawyer Philip K. Howard to discuss executive power over employees and the impact of public employee unions. They explore the constitutional context of executive power, including the Take Care Clause and the Guarantee Clause. The importance of accountability and elections in a democratic government is emphasized. The conversation delves into the relationship between Congress and executive power, as well as the challenges faced by management in dealing with public employee unions. The episode concludes with a discussion on the evolution of public employee unions and examples of cooperation between unions and management. The conversation explores the need for a new model of governance that empowers public employees and allows for more effective decision-making, as discussed in Howards’s Everyday Freedom and Not Accountable. It discusses the limitations of the current system and proposes changes to the Civil Service Reform Act to address these issues. The importance of treating professionals like professionals and giving officials more authority is emphasized. The conversation also highlights the need for human judgment and the challenges of political firings. The role of senior civil servants in driving change and the need for radical de-layering of government are discussed. The conversation concludes with a call for the creation of frameworks that empower individuals and lead to a better democracy.
Takeaways
Executive power is vested in the president, who has the authority to manage the federal workforce and ensure the faithful execution of laws.
The guarantee clause in the Constitution ensures that states maintain a republican form of government and cannot delegate governing authority to non-elected individuals.
Public employee unions have undermined democratic government by limiting accountability and obstructing the ability of managers and presidents to enforce the law.
Unions in the public sector have accumulated power and negotiated for more controls, impeding effective management and decision-making.
Cooperation between unions and management can lead to positive outcomes, but the lack of support for management in dealing with employee conduct and performance issues remains a challenge.
Chapters
00:00Introduction
00:34The Constitutional Context
03:24The Take Care Clause and Guarantee Clause
05:20Accountability and Elections
06:45Congress and Executive Power
08:27The Impact of Public Employee Unions
12:16Unions and Democratic Government
16:12The Unconstitutionality of Public Employee Unions
24:06Examples of Cooperation
26:40Challenges for Management
27:22Incentives for Partnering with Unions
27:52The Need for a New Model
28:39How Change Can Come About
29:05The Limitations of Congress
30:30Proposed Changes to the Civil Service Reform Act
32:11Replacing Disciplinary Procedures
33:11Giving Officials More Authority
34:13Treating Professionals Like Professionals
35:49The Need for Human Judgment
36:19The Issue of Political Firings
37:17Empowering Senior Civil Servants
38:38The Gap Between Political Appointees and Federal Employees
39:26The Need for Radical De-layering of Government
40:25Empowering People at Every Level
41:23Creating a New Merit System Protection Board
42:25The Challenge of Offering Ideas for Improvement
43:49The Need to Reboot the System
44:06The Role of Public Employees in Driving Change
45:38Creating Frameworks for Empowerment
48:32The Challenge of Giving Space to Civil Servants
49:29The Better Government Movement
51:00The Need for Structural Overhaul
52:21Empowerment and a Better Democracy
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Natalia Castro (00:00.658)
Hello and welcome to Fed Talk. My name is Natalia Castro.
Jason Briefel (00:05.081)
And I'm Jason Breifel.
Natalia Castro (00:06.586)
and we're here from Shaw, Bransford and Roth. This season on FEDTalk, we are exploring the federal government influx, looking at the big issues affecting the three branches of government at a dynamic time in our nation's history. This episode will focus on executive power over employees. We will be discussing the president's duty to faithfully execute the law, managers ability to manage their workforce and what...
Natalia Castro (00:34.17)
means for all the different sectors of the federal workforce. Jason, can you kick us off by introducing our guest?
Jason Briefel (00:42.105)
I sure can, Natalia. We're really happy to have Philip K. Howard here. He is a lawyer and an author. He's the founder of the nonprofit Common Good and has been thinking about how to make our government work better, more rationally and more effectively for over 30 years. He's the author of several books, including one, Everyday Freedom, that I was able to get and read in time before our show today. But he's also written...
Jason Briefel (01:11.353)
not accountable, rethinking the constitutionality of public employee unions, which is something that we'll talk today in terms of the president's ability to manage and lead the federal workforce. So, Philip, again, we're really pleased to have you here on Fed Talk. Thanks for joining us.
PKH (01:30.204)
Great to be with you, Jason and Natalia.
Natalia Castro (01:31.972)
Now, to get this conversation started, we want to take a step back and look at the constitutional context for these issues. You have obviously, Philip, worked in this space for a very long time. And in some of your works, you talk about how the Constitution provides the president authority over his, its workforce.
And so I want to start by just looking at where you view the kind of key pillars of executive power over the federal workforce and what that means for things like public employee unions. I know you've talked about the guarantee clause a lot. The kind of more natural place for me to view these issues is through the lens of the take care clause. Can you take a second to just kind of sketch out what the take care clause and the guarantee clause?
Natalia Castro (02:24.03)
require through the federal constitution.
PKH (02:27.036)
Yeah, thanks. So the three branches of government, Article 2 is for the executive branch, and it says executive power shall be vested in a president. And there's quite a lot of Supreme Court precedent on what it means to have executive power, what those responsibilities are and what those powers are. And...
And one of the powers is that the president has to be able to manage the employees. And so there were laws, there were cases on whether the president had the authority, for example, to dismiss a postmaster before the end of his term. And the Supreme Court years ago said, yes, that was sort of implicit in executive power is that
PKH (03:23.824)
president has to be able to manage the workforce and decide who's doing the job and who isn't. So within Article 2, there is, as you said, this would take care clause, which is a kind of a Delphic provision that the president shall take care of that the laws be faithfully executed. And that has a number of different interpretations. But one of them,
One of the meanings that the Supreme Court has given it is that the president must have the power to faithfully execute the laws. And once again, that goes back to the authority to manage the workforce and to hold the workforce accountable. Separately, you mentioned the guarantee clause, which is in Article 4, which says more or less that...
PKH (04:19.504)
The United States shall guarantee to every state in the union a Republican form of government. And what Madison said that meant was that although the states could have any form of government they wanted, they couldn't delegate the authority to govern to people who were not subject to the vote. So you couldn't give away to an aristocracy, for example, the power to run a government.
And so this basic doctrine of non -delegation, that whoever's elected has to keep their authority, is both implicit in Article 2 within executive power, the executive has to retain that authority to implement faithfully the laws, and it's also required of states and local governments that they, whoever's elected, maintain the authority to...
PKH (05:19.324)
to actually run the government on behalf, otherwise what's the point of voting for these people? You know, you vote for somebody and they don't have the authority to, you know, fix the bad school or to fix the inefficient agency or whatever.
Natalia Castro (05:32.826)
emphasize one point that you just raised that I think helps our listeners understand why this matters. And it's that idea that we elect someone and we expect the person that we elect to be responsive to the needs of the people and it cannot be just delegated to a private party. And when that through the lens of the take care clause, which is an area that I have been really interested in in my study, I think that president's duty to supervise the executive branch.
Natalia Castro (06:00.186)
The reason that it's so important and why it is kind of one of our constitutional pillars is because the president is the only truly elected representative of the executive branch. So when you elect a president, you're electing that.
for their priorities and for the policies that they are going to enact and for executing the law. And if the president doesn't have the ability to supervise that the executive branch is enacting those priorities, then essentially your vote becomes nullified because you are electing a president for a reason, but the president cannot actually execute that reasoning. And so I think for our audience, understanding elections are supposed to matter, elections are supposed to have consequences.
PKH (06:36.508)
Right.
Natalia Castro (06:44.524)
And that's kind of fundamental to what we're talking about today is making sure that those elections do have that power and do have that weight.
It's so important to tell you. I...
The whole point of the executive branch is to actually try to run the government pursuant to laws passed by Congress as well as possible. It's like the manager of a business. You're supposed to be able to manage the business of government. And that requires resource allocation and other things within, again, the constraints imposed by Congress.
PKH (07:28.06)
And it also includes accountability and accountability is really important because going to your point about elections, democracy is nothing but a process of accountability. You elect somebody if they do a lousy job, you elect somebody else. And so so implicit in that is this idea that the president who's elected has the authority to to to manage. There is this great quote.
in the debates over the Constitution by Madison where he talked about the functioning of a democracy depends on an unbroken chain of dependence. The lowest officers, the middle grade and the highest will depend as they ought on the president. So, you know, that idea was really part of our constitutional structure.
Natalia Castro (08:27.002)
Now, one of the things you just mentioned is that this is not like the executive has unbounded control over everything in the government. As you referenced, they have to direct in accordance with the laws of Congress. So Congress obviously has a very important role here as well. That's why we have the separation of powers, these checks and balances. The Congress does kind of serve as a check on executive power in many ways. Can you talk a little bit about how the president's power over the executive branch
can collide with Congress's power to set up the structure of the federal government. It's Congress who creates agencies, but then it's the president that manages them.
PKH (09:06.492)
Yeah, that's right. So the legislative power is vested in Congress. So that means it passes laws, in general meaning goals and governing principles and budgets. And then implementation is in the executive. Now, there's a fuzzy area between those two, which the Supreme Court
been working out in many different contexts for over 200 years. So it's not a bright line which is which. And of course we have the whole debate over the ability or the fact that agencies now pass law, I mean sorry, promulgate regulations that have the force of law. So that's another issue which I've written about as well. And.
PKH (10:03.436)
Congress's ability to maintain control over that, I think, is really important because you have the executive branch effectively writing laws. And so Congress, which has the primary lawmaking responsibility, it seems to me ought to have more authority than it does to oversee those. But there is a fuzzy area between implementation and lawmaking. And I think,
I think the confusion has gone to extremes in both directions. Where Congress has imposed all kinds of controls on the executive branch that I think are clearly unconstitutional, and because they deprived the president of the authority to really manage employees, at the same time the executive branch.
PKH (11:00.988)
particularly through its lawmaking, regulation promulgating, has in many respects, I think, invaded the province of Congress. So we talk about separation of powers, but now it's kind of a Mulligatani stew. Everybody's doing stuff they're not supposed to be doing.
Jason Briefel (11:18.841)
Hahaha.
Natalia Castro (11:25.626)
Yeah, and that was a big topic of conversation on one of our previous Fed Talks as well. We had Adam White for the Center for the Study of the Administrative State from my law school on, and he talked a lot about kind of agency independence and how Congress and the executive branch, the lines have just gotten so blurry. So that is definitely a constant topic of conversation on this program.
Jason Briefel (11:25.785)
Yeah.
Jason Briefel (11:48.945)
Yeah, one, you know, I think in and around the area of implementation, your ideas and your work around, from your book, Not Accountable, Rethinking the Constitutionality of Public Employee Unions, you advance an argument that public employee unions have undermined democratic government and should be unconstitutional, in part because of how collective bargaining agreements in the public sector context.
confine the ability of managers and presidents alike to enforce the law, to have discretion to make decisions, and the like. So I'm curious, Philip, kind of what in your mind differentiates public employee unions from other groups, and what is the effect of public employee unions kind of as it plays out to a president or another elected official's ability to implement the laws and manage their organizations?
PKH (12:39.068)
Right.
PKH (12:44.14)
Right, it's sort of a foundational question, the organization. So.
PKH (12:52.828)
Collective bargaining rights as they have evolved are different in the federal government than in many states and such. But what they do is that they prevent the president from holding anyone accountable. There's near zero accountability in the federal government. 99 % of all federal employees get a fully successful rating in the last one I saw because...
If you put any negative hint in a personnel file, they have the right to grieve it. You've got to go to a hearing and prove that somebody doesn't cooperate or doesn't try hard or is an idiot or whatever. And so it's a, you know, deciding to prove all those things. So it's just not worth the trouble. So you have a public service that's virtually unaccountable. And the harm of that.
It's not that there are lots of bad employees in the federal government. I assume that the great majority of federal employees are there because they want to serve the public and they're doing a good job and such. The harm of it, which the Volcker Commission reports both talked about, is that when you know that performance doesn't matter, it's like putting a kind of nerve gas that numbs everything in an agency.
It depletes the energy because there's no mutual trust. You don't know that everybody else is working hard. So, you know, every senior public employee can tell you stories of a person, you know, two cubicles over who sleeps all day or, you know, five o 'clock comes along, it's the middle of a crisis, they get up and leave because they're allowed to leave at five o 'clock. So it's really bad for the...
for the spirit and pride. And so I said, it also means if there's not accountability, it means that everything has to be dictated by rule. Because if you can't hold people accountable for how they do, there's a natural tendency then to simply tell people just comply with these rules and write more and more rules. So no accountability is like a miracle grow for red tape.
PKH (15:13.596)
You know, every time something goes wrong, guess what? You get another rule and pretty soon you're working the federal government, you want to make a difference, you're confronting volumes of rules, internal rules and regulations, most of which could be gotten rid of if you could simply make a decision about who's not doing the job. So it's...
So these collective bargaining agreements and the Civil Service Reform Act 1978, which has provisions that make it hard to hold people accountable, you know, I think have...
I think without any serious question for doubt, have undermined the ability of the president and his designees to manage government. So that's why I think it should be unconstitutional. I mean, why have executive power if you don't have the authority to be an executive?
Jason Briefel (16:11.545)
Yeah, and as you know, I'll go ahead and tell you.
Natalia Castro (16:14.458)
Well, I was just going to say, I think we're, at least I am seeing this kind of play out right now, particularly in the conversations around telework. You know, regardless of whether or not you agree with the Biden administration's approach, they have said that they want people in the office. They said that they want to hit a 50 % target. They want agencies to bring people in. And overwhelmingly, you're seeing agencies require that of management and non -bargaining unit officials.
but for the members of the collective bargaining units, they're really slowing the process and they're requiring a lot of mediation. They're forcing the federal government to go through this really long drawn out process of re -bargaining over something that the president has set as a priority. And from my perspective, that is, you know, it goes back to what we said about elections having consequences. Yeah.
PKH (16:58.012)
It's...
PKH (17:05.852)
Yeah, I mean, who's in charge? So the answer is the president's not in charge. That the unions are kind of co -government. You know, you can do something only if we agree. So you want to, you know, there's a story that an SESer told me about sort of changing offices and had to negotiate with the union who sat at what desk. I mean, it's just absurd. I mean, it's just not...
I mean, Jason asked the question, what's the difference between the private sector and the public sector unions? And this is a really important point. There are three differences. The first difference is the private sector is constrained by the market. So that if you demand inefficient work rules in the private sector,
you will lose your job because the company will either go out of business or move out of town because it can't stay in business if it can't operate itself effectively. Well, government can't move out of town or go out of business. It is there, right? And so what you've had for the last 50 years, this is only, you know, the collective bargaining in the public sector is a relatively new phenomenon. We had the JFK order in 1962, then the states all piled in in the late 60s.
so it's a little over 50 years, you have this accumulation of powers, just like sediment in the harbor, that really make it, so you have to negotiate every single, you know, thing that goes on. I mean, so many stories there were the grievance because the manager asked somebody to straighten out their name plate on their desk. You know, it's like you can't do anything. So, one difference is,
You would never get those inefficient work rules in the private sector because the people would lose their job. The second thing is that in the private sector, it would be illegal. You would go to jail if a union official gave money or benefits to a manager. In the public sector, unions get their powers and they got all these laws passed because they...
PKH (19:29.788)
They were compiling these huge resources. We're talking about billions of dollars a year at this point across the country. Resources to give to officials for their campaigns who already have a pre -existing legal obligation to negotiate with them. So it's like a quid pro quo. It's a form of, it's not a form of corruption, it is corruption. You know, you've paid people, you've given millions of dollars for their campaign.
And it's different than other interest groups because there's a pre -existing obligation to give them something. You know, when General Motors gives money to a politician, it's one of all these other people and such and whatever, and there's no, if it were quid pro quo, it would be illegal. Well, and that's sleazy enough. But when you're a union and you're giving, in the case of public unions, because they're so big,
PKH (20:24.512)
giving more money than anybody else to someone who has a legal obligation to give you something. But it seems to me, you know, that's different. And the third point, which was Franklin Roosevelt's point, who vigorously objected to any idea of public employees unionizing, is public employees have a fiduciary duty to serve the public. The notion that they will organize and bargain against
PKH (20:53.82)
the public to FDR was unthinkable. And if you look at these collective bargaining agreements, look at them through the lens of how is this good for the public? And the answer is, you will be hard pressed to find one provision that is good for the public. They're all, almost all harmful to the public.
Natalia Castro (21:20.214)
One of the topics you mentioned is how over the last 50 years unions have evolved into this just a reinforcer of all the red tape in the bureaucracy.
unions from your perspective always been unconstitutional? If not, was there a shift that occurred? And does your view mean that public employee unions can never be constitutional or is it kind of an as applied type example?
PKH (21:51.544)
Yeah, it's sort of as applied. I don't think that unions are per se unconstitutional. I mean, you could go to going to states that the National Education Association was a teachers union that before the 60s didn't have collective bargaining power. And it was like a trade group. It talked about what would be better policies for teachers and it would...
Natalia Castro (22:03.514)
Yeah.
PKH (22:19.516)
talk to legislators about that, but it wasn't about taking control of the schools. It wasn't about taking control of political leaders and making them do whatever you wanted. It was a policy shot. So there's nothing wrong with public employees having their say, in my view, in policy. There is something wrong with them taking away the executive power of the president, so you can't manage the government sensibly.
Natalia Castro (22:33.402)
. . . .
PKH (22:49.468)
So, but the way the unions have evolved since they got collective bargaining powers in the 1960s is towards more and more controls. And at this point, you look at what they negotiate for, because in the federal government, you can't negotiate over wages. So, but even in...
state and local government, you know, that's the thing that the public really would rebel against it or well, actually in California, you'll find firemen making $500 ,000. So they haven't rebelled yet. But the so what they negotiate for are controls, more and more controls. And it's almost like it's control for its own sake. You know, like we're in charge now.
It's like some sort of, almost like a sort of middle illness, you know, where you just want to stop whoever's in charge of your agency or department from doing what's right to show that you can stop them.
Jason Briefel (24:05.561)
Yeah, and I think that at least in my time, a decade plus in and around the government, I have seen examples of that. You know, I've certainly seen examples of cooperation, especially on local levels, on local initiatives, where a union and management can get together, identify areas of cooperation and collaboration and make a difference. Like a story that shines out to me is down in the Portsmouth Naval Shipyard.
Jason Briefel (24:33.247)
the work of the union there working with management to get more boats in the water on time on budget. It meant dealing with shift issues, labor management cooperation issues, but it wasn't necessarily just a power play. We're going to use this contract and beat you over the head with it. It was we want to work together to fulfill this mission. And we know if we can show that we'll get the resources we need to give more people good jobs. That makes sense.
PKH (24:41.308)
All right.
PKH (24:52.644)
Yep.
Natalia Castro (24:56.858)
. . . .
PKH (25:00.54)
Yeah, it's interesting, you know, there are lots of different kinds of federal employees, obviously. I think the worst part of the unions are the ones that are the, in government, are the white collar type things where, you know, it's where you can't, you know, where basically you're doing intellectual property.
Jason Briefel (25:02.041)
But that is not how it always goes.
Jason Briefel (25:21.337)
Attorneys, attorneys at financial regulatory agencies.
PKH (25:30.236)
You're overseeing, you're regulating, you're trying to make sense of things. And they're very judgment -based in how well people do their job makes all the difference. Whereas if you have something that looks like it's industrial, like a shipyard, or the United States Postal Service delivering it, the negotiations are much more, you know, or can be practical. And if you find, you know, there's so many agencies in the federal government that work well.
And why do they work well? It's because they're not being obstructive. It's because there's a culture in that department where people want to do a good job. But even then, the lack of accountability is... You know, one bad apple can spoil the barrel. So if you're a manager, you know, if you're a...
She has 14 or 15 and you're running your department. You want everybody to think that everybody else is doing their job. And it's very discouraging when that's not the case.
Jason Briefel (26:39.569)
And I think a practical thing that we've also seen, as you know, we represent management and executive professional organizations around the federal government is that, you know, management is often not supported in its attempts to deal with employee conduct and performance issues. You know, this is constantly documented by the Merit System Protection Board, by the Government Accountability Office and others. We don't prepare.
PKH (26:45.948)
Right.
Jason Briefel (27:06.169)
our managers to actually manage and lead their organizations. We deprive them of the authority or the support to use the authority that they supposedly have. And oftentimes it's because their higher ups don't want to get screamed at by a union official. And that's just that.
Natalia Castro (27:13.594)
Thank you.
Natalia Castro (27:22.13)
Yeah, and I think that goes to the kind of quid pro quo that we discussed before. You know, a public interest group, a trade association, they don't have the same political and legal capital that these unions have. They have that ability to say, we're going to contribute to your campaign and you have to bargain with us. So you have a group at the top, you know, your elected executives who want to incentivize partnering with unions.
PKH (27:22.296)
Bruh.
PKH (27:35.772)
Yeah, that's
Natalia Castro (27:51.804)
You have unions who want to incentivize control, and you have the middle manager who then gets left unable to manage.
PKH (28:04.284)
It's broken. I let's just, I mean, I'm not the first person to say this, right? People have been saying it for 40 years. And, you know, the Civil Service Reform Act 1978 had some good things in it, but it didn't work as intended. And, you know, a decade later, Volcker had his first commission and it wasn't working. So...
Jason Briefel (28:04.287)
We would agree. We would agree.
PKH (28:31.708)
So there needs to be a new model that I think is an empowerment model. And so I hope we get around to talking about what that should look like.
Natalia Castro (28:39.338)
Yeah, let's talk about it.
Jason Briefel (28:40.093)
Yeah, well, and you know, I'm curious about how we get there. You know, you've you've talked about some concerns and some questions about the constitutionality of provisions of the 1978 Civil Service Reform Act. You know, where do you think change is going to come about or how do you think change is going to come about? Is it going to be action in the courts?
PKH (28:52.732)
Yeah.
Jason Briefel (29:04.505)
striking this law down, is it an executive order from a future president? Where do you really see change driving? And I ask this in the context that we know former President Trump and many on the right have been talking about a schedule F or an authority to fire or many, many federal workers as a way to try to issue that shot across the bow that some kind of different accountability is here.
PKH (29:26.332)
Right. Well, the one place it will not work, and I would have lunch with Paul Volcker and talk about this, is you can't go to Congress and say, oh, here's the proposal from the Partnership for Public Service. This seems reasonable. Let's negotiate it. And people in Congress nod their heads and say, oh, what a wonderful proposal. And then zero happens.
Jason Briefel (29:45.187)
Yep.
PKH (29:56.316)
And zero happens because the public unions don't want to give up control and they're giving money to these people and they have power. So nothing happens. I mean, we're not talking about nothing happening for a year or two. We're talking about nothing happening for one, two, three, three and a half decades since these conversations started. So nothing will happen by going to Congress and saying pretty please. And that's because of the power of the union.
So I believe that when I'm elected president, and I'm gonna be the write -in candidate this year, because nobody wants the other two, so I'm the write -in candidate, Philip K. Howard, what else? So I'm the write -in candidate, and when I'm president, I'm going to take the Civil Service Reform Act of 1978,
Natalia Castro (30:30.49)
You
Jason Briefel (30:32.889)
Yeah.
Jason Briefel (30:40.569)
the the the the the
PKH (30:55.72)
retain all parts of it, which I think are arguably constitutional, and replace the parts that are not constitutional, which in my view include the requirement for collective bargaining and these incredible disciplinary detailed codes that have performance improvement plans and stuff that literally you couldn't, it would take a lifetime to negotiate some of the.
the legal labyrinth required to get rid of somebody underneath procedure. And I would replace them with much more flexibility in hiring with an oversight body that's genuinely independent to hear objections to firings that are political, for example, or to oversee...
PKH (31:53.212)
hirings that don't go through the usual process that are important to get done, like for example, IT officials, really important to change the hiring and civil service. I mean, you can't hire anybody good if it takes six months to a year to go through the process, right? And so I would replace, I'd get rid of the disciplinary procedures, I'd have a complaint mechanism.
Natalia Castro (32:10.97)
Yep.
PKH (32:21.596)
with a few principles like no political firings and have that be a body that's sort of, that's how the Lloyd Lafollette Act 1912 worked, which is that they didn't have hearings to prove that it was unfair, unfair to whom, right? Unfair to the public, unfair to whom. But you could make a complaint with your evidence about why you thought it was political and they could make a decision. No hearing. And that was it.
and it seemed to work okay. And so that's what I would do. And then separately, because now you can hold people accountable and hire who you want and manage them, I would systematically begin to purge managerial red tape. Because a lot of that red tape is just a substitute for human responsibility.
Natalia Castro (32:54.522)
. . .
Jason Briefel (33:18.725)
Yeah.
PKH (33:21.116)
So I'd give procurement officials much more authority to negotiate contracts. I'd give officials really in almost every area much more authority to make sense of the situations and to give permits for infrastructure, you name it, to make decisions about how much environmental review or what the focus of environmental review should be. Again, all these things are hopelessly rule bound right now. And so the government doesn't work as effectively as it could.
Jason Briefel (33:33.333)
you
PKH (33:50.684)
Right.
Natalia Castro (33:51.994)
I appreciate that you called this an empowerment plan. I think a lot of what you're describing is treating professionals like professionals and acknowledging what I think was one of the critical flaws of the Civil Service Reform Act, which is that it reviewed our workforce as cogs in a machine. It viewed our workforce as just people processing.
Natalia Castro (34:14.33)
If it's just that kind of low line official doing the stamping the papers, then maybe having collective bargaining rights and the union to represent you make sense. But when our federal workforce is scientists, attorneys, even like judges in some sectors of the executive branch, it does not make as much sense to treat them like people who need to follow every rule, every regulation, check the box. It makes sense to teach them like professionals. And I think that's a point.
PKH (34:20.444)
Right. Right. I mean, completely. I mean, you know, it's like all these organizational structures,
are like seven generations behind management theory. So we're going back to Frederick Winslow Taylor, the scientific management. And so this thing that everyone in government wears a white hermetically sealed suit and they simply turn the wrench on the knob all day long.
you know, like in a Charlie Chaplin movie or something. You know, the people in federal government are people who have a lot of responsibility to oversee, you know, you name it, worker safety, you know, purity of food, weather, you know, give permits. I mean, these are important jobs. So they need to be able to use their judgment.
PKH (35:48.632)
Jason Misen's Schedule F. So Trump had this thing, Schedule F, which was designed to increase the accountability to the president. And I'm for increasing the accountability to the president. But I thought that the Schedule F was a mistake because it focused, it assumed that the issue was a kind of a...
It assumed that what was needed most was to get rid of people who have a different political view and therefore are resisting presidential initiatives. And there is some of that. And I think people should, you know, within the boundaries of law. And there are dual loyalties here because, you know, a federal official is bound to follow the law. So if the president says, I want you to do something to violate the law.
The official shouldn't do that, just because the president says it, you know. So there is, you know, potential gray areas there. But the main problem, in my view, is not that public officials simply want to disavow what a president wants, although I admit that there is an issue there. The main problem is that the people,
Natalia Castro (36:48.382)
Yep.
Jason Briefel (36:48.509)
Right.
PKH (37:15.992)
is that senior civil servants don't have the authority to manage the people below them. It's an implementation problem. So what's needed is not just to go firing a bunch of top people and things don't work well, if those people themselves don't have the authority to run their departments. So the most important thing is to give the people who are in the senior executive service and others the...
Jason Briefel (37:30.745)
Yeah.
PKH (37:44.38)
Authority to manage their departments and and and by the way All the studies of authority show this you give people authority Everyone else gets authority too. It's not a zero -sum game. So if the senior If the SES or has authority the person under hit underneath him also has more authority because now all of a sudden they can say hey I know a better way of doing this. Let's do it this way
PKH (38:12.796)
Whereas today, they're all shackled with these rules that were written decades ago. It's like democracy by dead people. Somebody wrote a rule and you can't get rid of the rule. And there they are complying with these volumes of rules. The poor forest ranger, whatever. And not able to adapt to the circumstances before them.
Natalia Castro (38:38.266)
And then there is such a big gap between political appointees who may be coming in from the private sector or from a different area where they have that autonomy. And then there are federal employees who have not historically had that autonomy and there's a culture of compliance.
And you have a tension then between political appointees who may be more forward looking and employees who are, who by design, not by their own fault, but by the way the system has been structured are so compliance oriented and risk averse. And I think that a lot of the motivation behind Schedule F was a frustration between the tension that comes with, you know, political appointees potentially coming from the private sector and then federal employees.
PKH (39:01.084)
Mm -hmm.
PKH (39:19.708)
All right.
PKH (39:25.468)
Yeah, so the whole we be wig thing, right? You know, we'll be here when you're gone. So, you know, so that's a real problem. And but it's a problem for the senior civil servants to it's not just a it's not just a problem for the for the appointee. You know, we're going to I'm part of this workshop with Francis Fukuyama and Don Kettle and others coming up to talk about all these issues.
Jason Briefel (39:28.281)
Yep.
Natalia Castro (39:29.434)
Yep. Yep.
PKH (39:53.89)
And I don't know what the ultimate answer is, but Paul Light, who wrote the book Thickening Government, you know, about how many layers there are now, clearly there needs to be a radical de -layering of government. And that includes, I think, many fewer political appointees and much more empowerment at every level, you know, down through the ranks.
Jason Briefel (40:02.049)
Yep.
Jason Briefel (40:17.125)
Yep.
PKH (40:24.444)
So instead of whatever it is, 11 or 15 different layers, with the top three or four being the secretary, the deputy, the assistant, the associate deputy assistant, you know, you get all these layers down there and it's just, by the time you get down through the chain of command, the four years is up. So you can't really make a decision. It needs to be...
Natalia Castro (40:24.942)
Thank you.
PKH (40:53.864)
much more empowerment, you know, at every level. And there does have to be a mechanism to resolve the disputes when people feel that the instructions violate the substantive requirements that Congress has imposed. And I think there needs to be probably a new, you could call it the Merit System Protection Board, but it needs to be completely new.
PKH (41:22.46)
because that isn't how it works now, right? So you'd need a new agency that tried to resolve those disagreements without hearings and such, something like that. But other than that, I mean, it's just the system really needs to be clean house and the litmus test ought to be does this official have the authority to do that?
Do what's right.
Jason Briefel (41:55.769)
I think you're right on the empowerment and the layering issue. I know that I've increasingly heard career senior executives in and around the government say, I'm much more like a senior manager than a senior executive. Because even at that level, they have many people above them. They're not necessarily empowered to lead and make decisions in a timely fashion. And ultimately, that means taxpayer money being spent on thinking about doing things.
PKH (42:12.716)
Yeah.
Jason Briefel (42:24.537)
versus actually doing things.
PKH (42:26.652)
Yeah, that's right. And the professionalism, so you can close your eyes and imagine you have an expert who's a, you know, GS -15 or 14, who really knows the substance of varia. And there's a new political appointee that's calling the assistant secretary, you know, above them, where those people develop a working relationship where on the one hand, the senior civil servant, its job is to report to this.
assistant secretary, but to get the job done, not to undermine. I think a lot of the political debates and a lot of the partisanship comes from this frustration that the practical stuff never happens. So if nothing ever good happens, then you get more radical ideas. Let's deregulate. Let's get rid of environmental regulation or whatever.
because it isn't working practically. So I think, you know, and I think this also ties into this new very short book that I have out about system failure. You know, we are coming up on a point in our society, you can practically feel the ground shaking, you know, with populist resentment and all that kind of stuff.
where it's just one of those periods like the 60s or the 30s or the progressive era where we really just have to reboot the system, you know, with the new goals and new ways of doing things. And I think civil service reform will be part of that.
Jason Briefel (44:05.913)
I think we think so too. As you know, we have framed this entire season and these discussions here on Fed Talk around the federal government influx. I think we feel it too. And it's when is the dam gonna break, how, and who's thinking about how we put the pieces together in a better way. And I'm glad to know that you and many others are thinking about that. We'll hope our political leaders have.
the wisdom to listen to and tap into that and not just keep one hand on the till of the past.
PKH (44:39.932)
Yeah, so the instinct of Washington, you know, Washington's like a mighty engine of the status quo, right? I mean, all those interest groups, all those interest groups are doing fine the way they are. So typically change happens from the outside, from outside pressures. And these outside pressures are developing. But I do think that there's an incredibly constructive role that public employees could take here.
Jason Briefel (44:47.961)
Yeah.
PKH (45:09.372)
in a narrative of change, you know, every department is weighed down by generations of regulations that in various ways make no sense. It would be better to oversee worker safety with many fewer rules with.
principles like tools and equipment shall be reasonably suited for the use intended instead of five pages on hammers or something. And where safety officials were focusing on unsafe conditions and unsafe industries. The furniture making companies that use glue guns, those are really.
PKH (46:06.268)
People were breathing the glue all day long. Yeah, it was not that great. So you really want to focus on where people are getting sick or injured, not complying with the paperwork about whether you check the box that the stairwells are lit by natural or artificial light. How else is it going to be lit? I so there's just a, you know, I think it's time to remake.
PKH (46:35.612)
the government in a way that's much more directed towards the government goals. And I think the senior people within government could be really a leading force not to protect themselves, but to make government work better. I mean, so I'm talking to some experts now about doing shreds in different areas of public life. How would you make this work better and come up with like a four page outline of...
How would regulation work? How could we expedite food and drug approvals without having the people approving it be subject to the guillotine when every once in a while there are unintended side effects or whatever? And so I think that it would be great if senior civil servants in each area took part in these discussions because they're the ones who live it.
Jason Briefel (47:35.737)
Yeah, the comment resonates with me so much, Philip. I've long hoped and dreamed that that could and would happen. I do think that there are some communities that are more organized than do that. For example, procurement officials and then around the government actively talk publicly alongside their industry counterparts on how do we make this system better. Frankly, I think that there's a lot of permission to do that in that space because we're
putting money out the door to someone who are not just government employees. But there's a real skittishness among civil servants, especially senior civil servants, about offering these ideas on ways to do better because their job literally is to follow orders from the officials and appointees above them and to quit if they can't do that because they're being asked to do something illegal and moral.
Jason Briefel (48:31.225)
And so it's almost the design problem of are these managers and senior career officials even empowered to think about those things? And if they were, do they have a space and permission to do that? I think generally the answer is no. I've learned about an effort called the Better Government Movement where 5 ,000 plus civil servants were rallied to think about and do things to improve how government implements and delivers services.
PKH (48:45.916)
Yeah, boy, that's too bad.
Jason Briefel (48:58.905)
And this initiative, a grassroots bottom -up initiative, was killed by the Trump White House because the term innovation was used in a way that was different than that and the administration was using it. And the initiative was dissipated. These people are out there still in the ecosystem, but it seems really challenging to find a way to give the space to career or to civil servants to be a part of this conversation.
Jason Briefel (49:28.697)
and I'd love to keep that conversation going with you after this Fed Talk. How do we make that happen? Where do we build those spaces?
PKH (49:35.356)
Yeah, yeah, I would love to, you know, I'd love to work with you. So this new, this essay just published as a short book called Everyday Freedom basically says, you know, can't, human accomplishment in government, out of government is much more complicated than can be laid out in a rule book. You know, you just, you know, what's fair, what's not, all that, and there's plenty of room to differ, but you...
Jason Briefel (49:58.329)
Mm -hmm.
PKH (50:04.188)
have to leave room for human judgment. And every senior civil servant sees these trade -offs. You know, you're trying to decide whether to give a permit. Well, do you, you know, the fish and wildlife guys tend to focus on what's happening to fish and wildlife and the Corps of Engineers is focusing on, you know, whether the bridge is structurally sound or not, you know, when they're not necessarily aware, or where the best place to put it is that they don't necessarily.
PKH (50:29.212)
have the same values, but somebody's gotta make, somebody above them, I guess, has to make that trade -off and make a decision and move forward. And so we have to create frameworks that, like red lights and green lights, right, that empower people within their area of responsibility, and then there were conflicts, make decisions, and society moves on, and every four years, voters vote about how well it's going. But ultimately,
Any system that doesn't empower people to make practical choices during the day is going to ultimately lead to broad frustration and burnout and failure. And Americans are fed up. I most Americans think the government needs structural overhaul. So I don't know if a Trump administration would do anything constructive.
But I would think a second Biden administration, if there were pressure from public employees and industry to have these discussions, I mean, it would go down in the history books. It'd be fantastic. Area by area, you could make things work better.
Jason Briefel (51:50.937)
We can dream and we can hope so. And I'm glad that you are out there among others, Philip, having these conversations, trying to bring people together from different sectors and areas. And we've really appreciated this conversation here today on Fed Talk. I wish we had some more time, but I know that you probably have some things to get to and others, but.
Again, really appreciate this discussion. Natalia, any last word from you before we wrap things up here on Fed Talk today?
Natalia Castro (52:21.498)
No, I think, you know, kind of as we've already discussed, it really comes down to empowerment and it's empowerment all the way through. And when you have that empowerment where people are accountable, but can make responsible judgments, and then you also have a political system that can then, you know, be responsive to that. I think we're not only better.
as a government that delivers goods and services, but taking it back to the beginning of this conversation, we're a better democracy that is more responsive to the needs of the people. So I think this is an important conversation. I think it's something that, you know, we're in a place in society where something needs to give. And so I hope that this is one of the areas where we can see reform.
PKH (53:05.116)
Excellent, excellent. Really, really great toy. I look forward to scheming with you later too.
Jason Briefel (53:12.953)
Yeah, absolutely.
Natalia Castro (53:15.46)
Philip, thank you so much for your time today. And for all of our listeners, thank you so much for listening to Fed Talk. This is Natalia Castro and Jason Breifel from Shaw, Bransford and Roth. We will see you guys next time.
Jason Briefel (53:28.153)
again.
