How Much Power Does the President Actually Have Over the Civil Service?

More than you think, which is why other branches need to step up

Photograph by Doug Mills / NYT / Redux

For the last century, a comforting piece of conventional wisdom has shaped debates about American governance: civil service laws insulate federal employees from presidential politics by promoting merit over politics in hiring, retention, and removal. Career officials may frustrate presidents. They may be slow, risk-averse, or resistant to change. But they are protected—by law, by norms, and by institutions—from being reshaped wholesale at the whim of whoever occupies the White House.

In Presidential Control of the Civil Service, I argue that this assumption is wrong. Presidents possess far more legal authority over the federal workforce than most scholars, journalists, and even many public servants realize. That authority is not constitutionally derived. It is statutory—and it has existed for more than a century. The result is a civil service whose structure, capacity, and independence are far more contingent on presidential character and priorities than our theories of governance usually acknowledge.

The Blind Spot in How We Think About Presidential Power

In law, discussions of presidential control tend to focus on constitutional flashpoints: the removal of principal officers, the unitary executive theory, or high-profile Supreme Court cases. Meanwhile, public administration scholars have documented a quieter reality: presidents shape the federal workforce through their management agendas.

These two literatures have largely talked past each other. Legal scholars often assume presidents lack meaningful authority over the rank-and-file civil service. Public administration scholars document presidential influence but frequently treat it as informal, political, or extralegal.

The missing link is statutory law. Since 1871—well before the Pendleton Act or the modern merit system—Congress has delegated sweeping authority to the president to regulate entry into the civil service, exempt positions from merit-based hiring, and prescribe rules for employee conduct. Those delegations remain on the books today, largely unchanged and remarkably open-ended:

· 5 U.S.C. § 3301: The President may (1) prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service; (2) ascertain the fitness of applicants as to age, health, character, knowledge, and ability for the employment sought; and (3) appoint and prescribe the duties of individuals to make inquiries for the purpose of this section.

· 5 U.S.C. § 3302: The President may prescribe rules governing the competitive service. The rules shall provide, as nearly as conditions of good administration warrant, for . . . necessary exceptions of positions from the competitive service.

· 5 U.S.C. § 7301: The President may prescribe regulations for the conduct of employees in the executive branch.

Even as Congress moved toward merit-based hiring and tenure protections, it deliberately preserved a central role for the president. The same statutes that constrained patronage also authorized the president to determine who was “fit” for service, which positions required competitive examination, and what conduct warranted discipline. These powers were framed in capacious terms—“efficiency,” “good administration,” and “the public interest”—with little guidance about their limits.

The result of civil reform has not been insulation from presidential control but a new equilibrium: a professionalized bureaucracy administered through presidential management. Merit, efficiency, and accountability became the civil service’s guiding principles—but Congress left it largely to presidents to define how those values would be balanced in practice.

How Presidents Actually Use This Authority

Presidents have used this statutory authority in markedly different ways, reflecting a wide range of motivations rather than a single theory of presidential administration. Sometimes, presidents exercise personnel authority in good faith to strengthen administrative capacity—addressing recruitment failures, professionalizing the workforce, or modernizing outdated hiring practices. At other times, personnel policy serves as an instrument of substantive governance, allowing presidents to advance policy priorities indirectly by reshaping who staffs agencies and how those agencies operate.

Still other uses are overtly political: expanding patronage opportunities, rewarding loyalty, disciplining perceived opponents, or signaling ideological commitments to voters. The case studies that follow illustrate how the same legal authority can support effective administration or facilitate political control over the administrative state.

Presidents have used statutory authority to reshape recruitment pipelines, most notably through internship and fellowship programs. The Presidential Management Intern Program is a good example of presidential power used productively. By exempting interns from competitive examinations and later converting them into career positions, presidents created a pipeline that improved recruitment and retention of high-performing employees. Courts and watchdogs largely upheld these programs as consistent with merit—even though Congress never expressly authorized them.

Presidents have also used the same authority for more troubling purposes. Schedule C positions—created by President Eisenhower—allow the president to appoint at-will, noncareer employees in “confidential” or “policy-determining” roles. Although initially described as a small carve-out, Schedule C became a durable patronage channel. Administrations used it to reward loyalty, centralize control, and embed political staff deep within agencies. Courts treated the classification of these positions as unreviewable.

Hiring freezes and attrition policies offer another example. Presidents of both parties have used freezes to signal fiscal discipline or hostility toward “big government.” Yet studies show that freezes rarely reduce overall costs and often degrade administrative capacity—slowing hiring, hollowing out expertise, and pushing work to contractors. Still, courts have generally upheld these measures so long as they do not conflict with explicit statutory staffing mandates.

Presidents have also shaped the civil service by regulating employee conduct. Drug testing, loyalty oaths, restrictions on off-duty behavior, and even seat belt mandates have all been justified under statutory authority to regulate conduct in the name of efficiency or accountability. These initiatives often reflect broader policy agendas rather than genuine workforce needs—but courts have rarely intervened.

Finally, presidents have exerted influence over federal unions. Collective bargaining in the federal workforce began as a presidential initiative, not a congressional one. Later, when Congress codified labor rights, it preserved narrow presidential authority to exclude agencies engaged in national security or intelligence work. Presidents have used this power sparingly but successfully—and courts have again deferred.

The Fox in the Hen House

Taken together, these examples reveal a pattern: presidents possess a first-mover advantage in personnel policy. Absent a clear statutory prohibition, they can act quickly and unilaterally. Congress, by contrast, must legislate—often over presidential veto—to reverse course. Courts, confronted with broad statutory language and managerial discretion, typically defer to the president’s managerial determinations.

This framework becomes most dangerous when presidential authority is wielded in bad faith. The Trump administration provides a stark illustration. Its use of hiring freezes, mass probationary removals, expanded reductions in force, and the creation of Schedule F (now revived as “Schedule Policy/Career”) reflects not merely aggressive management but something closer to administrative sabotage: the deliberate weakening of agencies charged with implementing laws the president opposes.

Here, the long-standing delegations become a liability. Some members of Congress worried about this scenario when they enacted the Civil Service Reform Act, warning against placing “a fox in charge of the hen house.” Representative James Collins (R-TX) warned, “We often talk about the political machinations of President Nixon, and I am a severe critic of those machinations and of that President. We also talk about Mr. Carter not being that sort of man, and we sort of skip over the problem of his successor.”

By failing to seriously consider the possibility that a president would abuse their discretion, Congress failed to meaningfully cabin the very authority that makes such sabotage possible.

Why Courts and Congress Have Failed to Respond

One might expect courts to serve as a backstop. In theory, federal personnel management is governed by the merit system principles—a set of normative values adopted by the Civil Service Reform Act of 1978. The second principle, for example, provides that employees “should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation.” The fourth principle provides that “employees should maintain high standards of integrity, conduct, and concern for the public interest.” Meaningful enforcement of these principles could prevent the most egregious abuses of the federal workforce.

Courts, however, have been reluctant to enforce the merit system principles. Framed in aspirational terms, the principles provide few judicially manageable standards. Concepts like “efficiency,” “public interest,” and “good administration” invite deference rather than scrutiny. Moreover, the statute provides no guidance for resolving conflicts among the principles themselves, leaving the act of reconciliation to the president. Because reconciling competing principles necessarily entails policymaking, courts presume that presidents act lawfully unless Congress clearly says otherwise. Deference, in practice, has rendered the merit system principles largely toothless, allowing presidents to invoke them superficially to shield even the most controversial personnel policies from review.

Yet the courts already have standards to evaluate personnel actions. They routinely review policies and decisions from the Office of Personnel Management and the Merit Systems Protection Board under the Administrative Procedure Act’s arbitrary-and-capricious standard. Courts refuse to apply that same standard to presidential action, however, because of precedent suggesting that presidents are exempt from the Administrative Procedure Act. This exemption creates a doctrinal loophole: identical personnel policies may be subject to searching review when adopted by the Office of Personnel Management but insulated from scrutiny when issued by the president. The result is a system in which presidential involvement, rather than the substance of the policy, determines its susceptibility to judicial review.

Congress has fared little better. Ex post oversight is difficult. Legislative fixes are slow, politically costly, and subject to veto. In some cases, Congress has even expanded presidential authority to avoid worse outcomes—granting buyout authority, for example, to dissuade administrations from using mass layoffs. These compromises often entrench presidential power further.

Norms once helped fill the gap. Professional ethics, bipartisan respect for the merit system, and internal resistance by civil servants all constrained presidential behavior. But norms are fragile. As recent years have shown, they cannot substitute for law when a president is determined to exploit ambiguity.

Reclaiming Administrative Capacity: Time for the Other Branches to Step Up

My normative claim is straightforward: unchecked presidential control over the civil service imperils administrative capacity—and, by extension, faithful execution of the law. Importantly, this is not a debate about the size of government or the virtues of public employment. Reasonable people disagree about those topics. It is a debate about whether the laws Congress enacts will be administered competently and in good faith—or hollowed out from within.

Of course, presidents need managerial tools. But those tools should be structured to serve Congress’s legislative choices, not to undermine them. Congress has constitutional authority to regulate federal employment. It can impose clearer statutory limits, define key terms, constrain exemptions, and use appropriations to enforce compliance. Courts, in turn, could take statutory structure and legislative purpose more seriously rather than defaulting to deference. It is entirely reasonable for Courts to look skeptically at claims that the Trump administration is enabling “conditions of good administration.”

If we care about whether government can still govern, we cannot treat the civil service as a background institution. It is a central site of power. And as long as presidents retain vast, underexamined authority to reshape it, the capacity of the American state will remain precariously dependent on who happens to be in charge.

Nicholas Bednar is an Associate Professor of Law at the University of Minnesota Law School. His research focuses on administrative law, the civil service, and administrative capacity.