At-will is the opposite of for-cause, meaning that employees can be fired for any reason. You can read the best version of the argument for public sector at-will employment in this discussion between Judge Glock and Santi Ruiz. The general claim as I understand it is that:
- managerial flexibility in hiring, firing and payments generally leads to better personnel outcomes
- some state governments experimented with moving to at-will hiring, while sometimes weakening unions, and the best evidence we have is that it worked reasonably well
On the first part of the claim, difficulties in hiring has been a long-standing concern. There is broad consensus that public employee hiring is too slow and does not generate outcomes.
Obviously if you are me, public employee hiring at any speed it too fast because we should be shrinking rather than expanding the role of government. Yet if you are a liberal, in the old sense, you believe that the government can do good things and improve society through its functions. You might want a bureaucracy that is removed from the winds of politics, just as the Founders wanted a Senate that wouldn't be driven by similar strong winds. The House can be, but the Senate cools; so perhaps could an independent, nonpartisan board.
A problem is that the Constitution doesn't in any way allow for such things. Congress could set up a board that reports to Congress and performs Congressional functions however it wants, short of actually delegating the legislative function to it. It can't handcuff the Executive with 'nonpartisan' experts, who of course are always really partisan anyway: they're from the Party of Government. Article II sets up the Executive as fully independent, and vests its power in the one elected President.
That might not be the best way of setting things up, but it is the only Constitutional way to proceed. If the Supreme Court recognizes that, well, we'll have to sort our the problems of that approach as we go. So too all the other problems. It's still helpful to have bright lines on the edge of the playing field.
3 comments:
Congress is not powerless. Like the saying goes, personnel is policy and the Senate has confirmation power on dozens of Executive positions. Both the House and Senate can exercise oversight via hearings and write legislation to address issues. Even the Senate as originally conceived was removed but not immune from politics because Senators were chosen by elected bodies at the state level.
Senators were chosen by elected bodies at the state level.
Only usually. One of the motivations (far from the only one) for moving to State-level popular election of Senators was because it was not unusual for the State's legislative bodies to not achieve its complement of two Senators in a given Congressional session. Sometimes that failure was through deadlock so severe that one or another of its two Senators went unselected for significant fractions of a Congressional session, sometimes it was because Senators were caught buying their appointments and were expelled, and in one occasion, a State went without any Senator in the Senate for a session for a variety of reasons.
As for government employees, I'm all for their being universally at-will in the Executive Branch. The politically appointed supervisors will change with the change in Presidents, as they should, but below them, it's too much an entrenched, unionized sinecure. Those employees are employed especially to carry out the President's policies, though, and any who are in the way of that, whether by their personal arrogance or their incompetence, should be terminate-able and terminated promptly. Every President should be able to have the work force (capped in size) that suits his policy needs.
That would be far easier with a vastly diminished civil service and voluntary Executive Branch work force.
Eric Hines
At least one SCOTUS justice seems to think that the expert class should just govern without interference from elected officials. No points for guessing which one.
https://hotair.com/david-strom/2025/12/09/impeach-ketanji-brown-jackson-n3809682
I could understand that argument in a political philosophy seminar, in which you (like the old men in Plato's Laws) were just talking about an ideal way to set up a government. There's nothing at all to support it in the Constitution, though: if you're trying to apply the argument to the way our system is actually set up, it is just unsupported.
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