EXECUTIVE SUMMARY

American democracy operates on the principle of government by the consent of the governed. Americans regularly elect the president and Members of Congress. However, difficult-to-fire career employees with entrenched job security—not political appointees who serve at the discretion of the President—perform most federal work. These employees’ jobs do not depend on election outcomes. Career employees thus exercise federal power without adequate transparency and democratic accountability.

• Most career federal employees honorably serve the American people, diligently following orders and implementing policies of elected officials. However, a significant minority does not. This report documents cases of career bureaucrats resisting Trump Administration policies. Political appointees who served under President Trump reported:
• Career staff at the Department of Education assigned to work on politically sensitive regulations, including the Title IX due process regulations, would either produce legally unusable drafts that would never withstand judicial review or drafts that significantly diverged from the Department’s policy goals. As a result, political appointees had to draft the regulations primarily by themselves.
  Career employees in the Department of Justice Civil Rights Division refused to prosecute cases they ideologically disagreed with, even when the facts showed clear legal violations. This included Civil Rights Division career staff refusing to work on cases charging Yale University for racial discrimination against Asian-Americans and protecting nurses from being forced to participate in abortions.
• Department of Health and Human Services (HHS) career staff circumvented President Trump’s hiring freeze issued soon after taking office by crossing out new hires’ start dates on their hiring paperwork. Staff used Sharpie pens to retroactively adjust the start dates to January 19, 2017—the day before President Trump took office.
• Career lawyers at the National Labor Relations Board routinely gave political appointees misleading legal analyses. They would only cite cases supporting their preferred position and omit contrary precedents. Some career lawyers refused to draft documents whose positions they disagreed with.
  Career attorneys in the Environmental Protection Agency did not inform political appointees about major cases the agency was involved in or the government’s positions in pending cases. Political appointees had to monitor public court filings to learn what the agency was doing.
• Department of Labor (DOL) regulatory staff intentionally delayed producing a departmental priority regulation. A competent private sector attorney could have produced a draft regulation in two to three weeks. The team of about a dozen career staff claimed they needed a year to do so—a pace that amounted to each attorney in the unit writing less than one line of text a day.
• Civil service protections enable this policy resistance. They make removing career employees for any reason prohibitively difficult. This is not what the founders of the civil service intended. They wanted to prevent patronage hiring but feared removal protections would protect incompetent or intransigent employees. Thus, after America converted to a merit service, federal employees could not appeal dismissals for over six decades. Federal employee appeals did not arise until the 1940s.
• Congress should return to the original vision for the civil service and make all federal employees at-will. Removal protections shield career bureaucrats from accountability for how they exercise federal power. Government of, by, and for the people should not operate this way.