IN HIS ARTICLE in the Dec. 24 Outlook, Robert M.Kaus weaves a grandiose theory to show how court decisions have frustrated civil services reform efforts. Because of such decisions as Arnett in 1972, which he says helped "gut the most important piece of legislation Congress addressed last term," civil servants continue to have access to hearings, notices and appeals before losing their jobs.
When his article was first printed in The Washington Monthly, it had a title that made his theme especially provocative: "How the Supreme Court Sabotaged Civil Service Reform." Kaus takes special delight in ridiculing the proposition (recently invented, he says) that a job with the government, because it is "property," requires protection under due process clause of the constitution. His crabbed analyses about the judiciary, removal powers, the civil service act and property rights merit a rebuttal.
Kaus claims that the property issue is of recent vintage. "Forty years ago," he writes, "the average attorney would have stared back in disbelief at anyone who told him that a federal job was property, just like a plot of land." He traces the job-property relationship to the sensational exploits of Sen, Joe McCarthy in the 1950s and to an article by Charles Reich publihed in 1964.
It should not take too much training in the law (even for an average attorney 40 years ago) to recall Marbury v. Madison , handed down in 1803. Chief Justice Marshall held that the president had discretion over an office until an appointment is made, but that thereafter "his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it." Congress had given Marbury's office a tenure of five years. Marbury had a legal right to servr for that period. He did not get the job, but Marshall's decision gave early evidence that a federal job could constitute a property right. It also suggested that Congress could circumscribe the president's removal power through statutory restrictions.
"Prior to the 1950s," we learn from Kaus, "the law on firing government employes was fairly simple: the government could constitutionally fire an employe without jumping through any procedural hoops. Moreover, the government employe worked-as far as the Constitution was concerned - at the will of his superiors; he could even be sacked solely because of his political inclinations."
Not so. The record prior to the 1950s is decidedly different. Has he forgotten about the Pendleton Act of 1883? Or the job-property linkage in the case of U.S. v. Perkins , in which the Supreme Court in 1886 agreed that a naval cadet engineer could sue for pay in the Court of Claims? The secretary of the navy had discharged him without a showing of deficiency n any examination. He had been dismissed not for misconduct under any provision of law, nor had he been sentenced by court martial (a statutory procedure). Thus, he was still in office and entitled to the pay attached to it. Procedures existed at that time to prevent arbitrary dismissals.
The Lloyd-LaFollette Act of 1912 established some more "procedural hoops" to protect federal employes. While members of the classified civil service could be removed "for such cause as will promote the efficiency" of the agency, they were entitled at least to (1) reasons given in writing, (2) notice of the action and of any charges and reasonable timgainst them, (3) a copy of the charges and reasonable time to file a written answer, with affidavits, and (4) copies of the agency's decision.
Examination of witnesses, trial and hearing were not required by statute, but could be furnished at the discretion of the official directing the removal.
It is false to say that a federal employe could be "sacked solely because of his political inclinations." A dsitinction is needed between employes under the civil service and officials appointed with the advice and consent of the Senate. Certainly protection against political dismissal has been available for civil servants. Even presidential appointees have access to some protection. Franklin D. Roosevelt tried to get rid of William Humphrey, a federal trade comissioner, by asking him to resign for these reasons: "I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission." Humphrey. placed on the commission by Republican presidents, had openly sided with the business interests. This effort to remove him for policy and political failed in the courts. In this case, decided in 1935, FDR's right of removal was limited to the statutory grounds established by Congress.
The claim that federal employes could be sacked for political reasons ought to remind us of congress' attempt, in 1943, to prohibit the payment of public salaries to three individuals described by a subcommittee chairman as "irresponsible, unrepresentative,crackpot, radical bureaucrats" and affiliates of "communist-front organizations." The Supreme Court, in 1946, struck down that use of legislative power because it inflicted punishment without a judicial trail and therefore violated the Constitution's prohibition against bills of attainder.
Procedural protections are not the monopoly of the courts. In 195o, before Joe McCarthy began to make headlines, Congress passed legislation to allow certain agencies to suspend civilian employes whenever "necessary in the interest of national security." Once suspended, however, permanent employes had access to these procedural safeguards before removal : (1) a written statement of the charges within 30 days after suspension, stated as specifically as security considerations permit; (2) an opportunity within 30 days to answer the charges and to submit affidavits; (3) a hearing, at the employe's request, by an agency authority constituted for that purpose; (4) a review of the case by the agency head or designee prior to a decision adverse to the employe is made final, and (5) a written statement of the decision.
This statute applied only to national-security dismissals. Removals of other civil servants were circumscribed by even more stringent procedures.
Security Cases of the 1950s
KAUS INDICTS the judiciary of the 1950s for impeding the government's right to fire employes.As a result of McCarthy's hunt throughout the federal payroll for communists and their sympathizers, a "generation of liberal lawyers was weaned on the struggle against the persecution of these employes . . ." Kaus says that the concept of due process was repeatly invoked by the courts "in attempts to save the careers of officials charged with subversive leanings. Taking away someone's government job had become a serious constitutional matter."
First, the decisions were meant to save more than "careers." Reputations were at stake. Reputation has long been considered more precious than ordinary forms of property. The idea that property includes a person's name was recognized by the Supreme Court in 1891, in the case of Brown Chemical . Unambiguously the court stated: "A man's name is his own property, and he had the same right to its use and enjoyment as he has to that of any other species of property." Property has always been more than "a plot of land," as Kaus would define it.
Personal reputations are destroyed when the government dismisses officials as alleged security risks. Courts properly insist on procedural standards and constitutional rights for those accused of betraying their country. To be excluded from public employment on grounds of disloyalty, as the Supreme Court noted in 1952, becomes "a badge of infamy." To be dismissed under that cloud devastates a worker's opportunity not only within the federal government but in the private sector as well.
Kaus points out that the courts in the 1950s protected employes "who had been fired for exercising some constitutional privilege, like the right against self-incrimination." This is a pinched interpretation. Much more vital principles were preserved. The courts refused to let the government depend on "faceless informers" for their evidence. Employes accused of disloyalty were entitle to confront and cross-examine their anonymous accusers. Otherwise, the government should drop the charges. Many of the informants had not even made their damaging statements under oath.
The principles of free speech and free association were also part of this battle in the 1950s. Federal judges suspected that employes were being fired not for wrong conduct but for "wrong views." Someone subscribed to the wrong magazine. Someone else had a wife who associated with the wrong group. Dismissal for wrong thoughts, some judges concluded, had nothing to do with protecting the security of the United States. It had a lot to do with undermining First Amendment freedoms.
Congress could have curbed these court diecisions through its power to limit appellate jurisdication. Bills were introduced to remove the Supreme Court's authority to review the Federal Loyalty-Security Program. Congress considered removing the employe's right of confrontation and cross-examination. Some legislators proposed the application of summary suspension powers to all nonsensitive federal jobs. All of the efforts failed. There was broad agreement, then, in Congress as well as the courts, that employes accused of disloyalty were entitled to carefully delineated procedures.
"New Property" Origins
KAUS CORRECTLY assigns to Charles Reich a major influence in the growth of the "new property" rights. Reich's article in 1964 argued persuasively that, with the growth of governmental regulation and benefits, reaching deeply into the private sector, citizens were more in need of procedural safeguards. Doctors should not be deprived of their medical license, for instance, or taxi drivers their medallion, without predictable and enforceable procedures.
Beginning around 1970, the courts began handing down a series of decisions that dramatically broadened the rights of individuals affected by governmental decisions. In his handling of these cases, I think Kaus misses their significance.
He states that the Supreme Court prohibited a state from removing a recipient from the welfare rolls "without first giving him a chance to prove his eligibility at a quasijudicial hearing," but the issue in Goldberg v. Kelly was of larger moment. The purpose was not to allow someone to prove eligibility but to assure that once a recipient qualifies of assistance, he has a right to receive benefits so long as he continues to satisfy the legal criteria. State officials should not be allowed to capriciously terminate benefits. While the government has an interest in conserving fiscal and administrative resources, that cannot outweigh the procedural rights of a recipient to produce evidence in rebuttal before termination occurs.
"From welfare," Kaus writes, "the court moved on to drivers' licenses, which became 'property' under the due process clause in 1971." Is this such an absurd result? The State of Georgia had suspended the driver's license of a clergyman without first considering whether he was a fault in an accident. The Supreme Court recognized that a driver's license may be essential in the pursuit of a livelihood. The state should not take it away without determining that a judgement is at least likely against the licensee. Like the Goldberg holding, the state must have some rational basis for discontinuing a benefit. Without recourse to reason you will have government run by erratic and whimsical officials.
Kaus discusses the 1972 decision that applied property to job rights. A professor at a Texas state college, after being dismissed, sued to get his job back. According to Kaus, the Supreme Court's "new rule applied indiscriminately to every deprivation of the 'property interest' in a job. Whether you were discharged because you were a red, or because you slept at work, you were constitutionally entitled under the 'property' doctrine to 'due process.'"
Let's cut through this extravagance. The professor in the Texas case had been employed for 10 years in the state college system. During his last four years he was reappointed under a series of one-year contracts, until in 1969 the Board of Regents voted not to offer him a new contract. Although a press release by the regents charged him with insubordination, he did not receive an official statement of the reasons for the nonrenewal. Nor did he have an opportunity for a hearing to challenge the basis for their action.
The court held that the mere absence of an explicit tenure provision did not foreclose the possibility that he had a "property" interest in reemployment. He was entitled to prove his contention that a de facto policy existed, arising from rules and understandings officially promulgated and fostered by the college. Such proof would obligate college officials to grant a hearing, at his request, to enable him to learn the ground for his nonretention and to challenge their sufficiency. This is a far cry from the court applying a new rule "indiscriminately" to every job interest. This point is underscored by the case of a professor of political science in Wisconsin who was told prior to the end of his first full year that he would not be rehired. No reason was given. The Supreme Court said that neither his "liberty" nor his "property" under the 14th Amendment had been deprived.
Kaus misreads these decisions by concluding that a civil servant's removal does not deprive him of "liberty" under the due process clause.
Consider the "property" of someone whose wages are garnished. A finance company in Wisconsin instituted an action against a woman and her employer. She was not given notice. She had no opportunity to be heard prior to the seizure of her wages. The Supreme Court was asked in 1969 whether there had been a taking of property without procedural due process. With only one justice dissenting, the court struck down the prejudgment garnishment procedure, stating that as a practical matter it might "drive a wage-earning family to the wall."
Another garnishment case, decided by the court in 1972, concerned a Connecticut law under which a finance company had garnished the savings account of a woman without notice or hearing. A lower court decided that it lacked jurisdiction because the case involved "property" rights rather than "personal" rights (over which the court would have had jurisdiction).
In sharp language the Supreme Court repudiated that distinction. The dichotomy between property rights and personal liberties, said the court, was a false one. The illuminating language of the court deserves quotation in full: "Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a 'personal' right, whether the 'property' in question be a welfare check, a home or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other."
FROM KAUS we learn that the Carter administration search for a simple way to remove "nonperforming" employes. As a substitute for the "byzantine structure" of hearings, notices and appeals, White House staff toyed with the idea of dismissing federal workers on the concurrence of three supervisors: "the one who initiated the discharge, a higher-up and a third supervisor experienced in deciding such disputes."
Simple indeed! But what would this streamlined system do to the likes of Ernest Fitzgerald, the Air Force procurement specialist who lost his job after telling Congress the truth about cost overruns on the C54 aircraft? After nearly four years of litigation, the Civil Service Commission ruled that Fitzgerald had been improperly dismissed and should be reinstated. Under the efficient method contemplated by the Carter administration, it would have been an easy matter for the Air Force to find three officials (or 3,000 officials) willing to dump Fitzgerald.
Congress has long expressed an interest in preserving a civil servant's right to contact legislators and their committees. This right dates back to the Lloyd-LaFollette Act of 1912 and is protected today by Section 7102 of Title 5. Should the administration be allowed to fire employes who have the audacity to tell Congress the facts" I think also of the climate under the Nixon administration, when employes were being penalized for carrying out laws that the White House wanted to terminate (without involvement by Congress). The Constitution directs the president to "faithfully execute" the laws, but sanctions were applied against civil servants who honored that mandate.
The Civil Service Reform Act of 1978 attempts to protect the rights of "whistleblowers." Among the list of prohibited personnel practices are reprisals against any employe who discloses information which the employe believes to be a violation of any law, rule or regulation, or which evidences misamanagement, a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety. This invitation to bureaucratic openness does not apply to disclosures specifically prohibited by law or information specifically required by executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.
I turn at last to Kaus' treatment of Elrod v. Burns , which he says brought the "civil service ideal - that government service should be free from all political risk - to Cook County, Ill." The decision did no such thing. The five justices could agree on only one point: that a non-policy-making government employe cannot be discharged, or threatened with discharge, from a job that he is satisfactorily performing on the sole ground of his political beliefs. While this narrows the application of patronage, it does not eliminate it. Surely it does not mean that government service is "free from all political risk." Policy-making employes (and, indeed, the court stumbled trying to define that category) may be fired for political reasons, as may non-policy-making employes who perform unsatisfactorily. The decision, whatever its defects, is not as broad as Kaus construes it.
Property Rights Writ Large
KAUS ENDS his piece with an apocalyptic warning that the courts, in their ceaseless appetite to reinterpret the Constitution, will "rule that a losing candidate for reelection can successfully sue to get his office back." We need not pursue this speculation to insist on a definition of property that goes beyond "a plot of land."
Certainly there is nothing bizarre about connecting job rights with property. When John Locke spoke of property, he meant life, liberty and estate - not simply the latter. By property he meant that which men have in their persons as well as in their goods. Everyone had a property in their labor and in the work of their hands. Property rights and personal rights were inextricably mixed.
In Federalist 10, Madison stated that the most important function of government was not the protection of property. Rather, the "first object of government" was to protect the faculties that give rise to property. It is no accident that the Constitution authorizes Congress to promote science and the arts "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
In an essay published in 1792, Madison elaborated on the meaning of property. A man had property in his opinions and in the free communication of them. He possessed property in his religious opinions, in the safety and liberty of his person and in the "free use of his faculties and free choice of the objects on which to employ them." Conscience was for Madison the "most sacred of all property." For that reason it was a greater violation to invade a man's conscience than to invade his home. Madison captured the essential tie between property rights and human rights by making this profound observation: "In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights."
Madison was not alone in his broad conception of property. His contemporaries realized that the freedoms and liberties of America were essential parts of property. Property conveys a multitude of rights which have little in common except that they are exercised by persons and enforced by the state. These rights must operate in tandem, not in isolation.
First Amendment freedoms depend on procedural safeguards that protect privacy and reputation. Privacy relies on Fourth Amendment restrictions on searches and seizures. One's reputation may have to rest on the Sixth Amendment right of confrontation. Free speech would be a barren concept if its exercise meant the loss of employment.
What would these values amount to if the government could fire employes and terminate benefits with the concurrence of a few officials? With what logic does anyone so outraged by bureaucratic incompetence decide to entrust, without any procedural safeguards, such astonishing power to bureaucrats? CAPTION: Illustration, no caption, By Todd Crespt for The Washington Post