## Notes from 08 January 2026 [[2026-01-07|← Previous note]] ┃ [[2026-01-09|Next note →]] [[Eric R. Claeys]] (George Mason University, [[Antonin Scalia Law School]]) has [a piece in _National Affairs_ (Winter 2026)](https://www.nationalaffairs.com/publications/detail/civil-service-reform-and-republican-government) arguing for rolling back tenure in the US federal civil service. The framing is Madisonian—accountability to the electorate, republican self-government—rather than the usual efficiency talk. The most useful move in the article is distinguishing **merit at entry** from **merit at exit**. These are separate mechanisms, often conflated. The Pendleton Act (1883) introduced competitive hiring and banned politically motivated dismissals, but the protections were limited—tied to four-year terms and initially covering only about 10% of federal employees. Robust tenure with procedural rights and appeal mechanisms came later: the Lloyd-LaFollette Act (1912) added grievance procedures, collective bargaining expanded coverage under Kennedy, and the Civil Service Reform Act of 1978 established the comprehensive tenure regime that exists today. The reforms were layered over decades, not enacted as a package. Treating them as a single system obscures the range of possible configurations. Once you separate them, the design space opens up. You can have strong entry filters with weaker exit protections, or the reverse, or variations by function. The US already has this in practice: the Senior Executive Service (SES) operates under lighter tenure rules; law enforcement, intelligence, and national security are exempted entirely. Around twenty states run largely at-will systems without collapsing into patronage machines or authoritarianism. Tenure can also originate from different sources (statute, executive order, collective bargaining) which further undermines the idea that it's constitutionally necessary or somehow intrinsic to public employment. Here's a thought worth developing: if competitive selection governs entry, that changes the calculation around politically motivated dismissals. A minister who fires a career official can't simply slot in a loyalist — the replacement still has to clear the merit filter. The entry requirement disciplines the exit decision. This won't prevent all abuse, but it shifts the incentive structure. Protecting against patronage doesn't require tenure alone; entry controls do part of that work on their own. The two mechanisms are substitutes to some degree, not just complements. Claeys concedes that certain roles may warrant stronger protections — diplomats, patent examiners, prosecutors, positions demanding continuity or specialized expertise. His target is tenure as the unreflective default rather than a justified exception. Flip the burden: start with at-will, then argue for protections where specific functions require them. --- That said, I find the article too comfortable with the current political context. Claeys cites NIH staff walking out of town halls and Civil Rights Division attorneys resigning en masse as evidence of ideological resistance to legitimate presidential direction. He acknowledges Trump's legally dubious actions on tariffs and immigration but treats these as manageable — courts, investigations, elections will sort it out. [A _New York Times_ piece from earlier this week (Matthew Purdy, January 2)](https://www.nytimes.com/2026/01/02/us/politics/president-trump-powers-watergate.html) paints a grimmer picture. Trump has systematically gutted post-Watergate accountability infrastructure: inspectors general fired without explanation, the Office of Special Counsel head dismissed, the Office of Government Ethics director removed, the Justice Department weaponized against personal enemies. This isn't reform through legislative deliberation. It's confrontation backed by a compliant Supreme Court and a legislature that has checked out. The contamination runs both ways. Trump's conduct makes it harder to have a straightforward conversation about civil service design. But the reflexive response (defending tenure without qualification simply because Trump attacks it) is also a dead end. These are separate problems. Institutional reform is worth debating openly; abusing power to persecute opponents demands accountability through political and legal channels. Collapsing them together serves no one. The Pendleton Act's own history is instructive here. Its meaning and scope evolved substantially over decades. What counts as "merit system" is not fixed by nature. Current arrangements are the product of accumulated choices, and choices can be revisited. The difficulty is doing so when the immediate political crisis keeps pulling everything into its orbit.