Das Personal der Republik

The American founders attributed paramount importance to the constitutional power to appoint and to remove executive officers. In modern times, they were the first who had to answer the crucial question which arises in every democracy: How should the personnel system of the executive branch be shaped in order to realize the principle of popular sovereignty?
When this question arose in Germany for the first time in 1919, traditional civil service principles had already influenced the administration for more than a century. In the United States, by contrast, the principle of popular sovereignty had shaped the executive branch long before the emergence of a modern administration in the late 19th century. This book therefore analyzes the multi-layered connection between a specifically democratic constitution and the personnel of the executive branch by using the United States of America as an example. It examines the transformation of constitutional theory into constitutional law, the relationship of constitutional law to the influence of political parties and to the modern administrative state, and the frictions that have become apparent in the United States in recent years. Thereby, this book establishes a Constitutional Law of Executive Personnel.
The theoretical starting point of this study is the separation of office and officeholder, which, unlike on the European continent, had a power-limiting function in the United States from the outset and led to the separation of organizational power from appointment power (Part 1, B.).
The historical starting point of the study is the Declaration of Independence, since important decisions on the course of the American constitutional law of executive personnel were already made before the constitution was adopted. In the period from 1776 to 1787, the separation of powers developed from a principle that was in practice directed only against the executive to a principle that was supposed to work for and against all three powers. The revolutionaries adapted the power to appoint and remove executive officers in the new institutions to this development (Part 2: The Executive Branch and its Personnel between the Declaration of Independence and the Federal Constitution).
These developments formed the basis for a distinctly republican ideal of executive personnel. This ideal of the American founding generation is elaborated in the third part of this book as a core element of the American understanding of the constitution and as a link between different constitutional principles (Part 3: Standards for the Personnel of the New Republic: Personnel Ideal and Constitutional Theory). This personnel ideal emerges less from the text of the Constitution but rather from other primary sources, particularly the Federalist Papers and the correspondence of the founding fathers: The executive was to be led by virtuous men distinguished by “fitness of character”, who would not fall prey to “corruption” in the sense of abusing their office for their own ends. This interpretation of the American founding phase challenges those concepts that interpret the American founding in a completely pluralistic way. As shown in part 3, the republicanism thesis applies insofar as both pluralist and republican elements were influential during the founding era: Since the founders recognized that their personnel ideal was not easy to fulfill, they provided for safeguards. In addition to the checks and balances of the horizontal separation of powers, these safeguards also included the size and thus the diversity of a republic in which “factions” are controlling each other. In this way, Federalist No. 10 can be explained in terms of personnel constitutional law. The republican ideal of personnel is thus determined not by substantive constitutional law but by procedure. A complete constitutional determination of the appointment criteria would contradict the American understanding of personnel decisions as political decisions and specifically democratic acts: Democratic responsibility and the restraints of public opinion, along with checks and balances, are the mechanisms that are ultimately supposed to lead to a good selection of executive personnel.
The study then shows how these theoretical principles have been incorporated into constitutional law doctrine and how they have operated in recent years up to the most recent judgments (Part 4: From Constitutional Principles to the Constitutional Law of Personnel Selection). This part includes an analysis of the genesis of the Appointments Clause and leads to current debates regarding the appointment process: from the filibuster, independent agencies, and recess appointments, to the Federal Civil Service, and personnel in the Executive Office of the President. These debates and the corresponding case law are systematized – especially with regard to the contrast between functionalism and formalism in separation of powers theory and doctrine. The understanding of personnel selection as a political process entails an openness for development in which the constitution functions as a normative framework (Rahmenordnung) for a political contest over the appointment power. The analysis also shows that even the decision in favor of a unitary executive with a President at its head was justified by the founding generation on the grounds of the necessary democratic responsibility for the selection of personnel. Finally, an understanding of the Appointments Clause informed by constitutional history and constitutional theory also leads to a democratic definition of the Officer of the United States, a central concept of the constitutional law of executive personnel.
The final part analyzes the relationship of this specifically democratic constitutional law of executive personnel to the modern administrative state – with the origins of the German civil service serving as a contrast (Part 5: American Constitutional Development and the [German] Administrative State). It begins with an analysis of the discourse on the presidential power to remove executive officers, which started in the First Congress in 1789 and has continued ever since. The book shows the central role of the power to remove in the current debates about independent agencies and systematizes the case law on the removal power – with a special focus on the relationship between democratic responsibility and the increasing role of fundamental rights. By contrasting these debates with the German civil service tradition, different models of democratic legitimation become apparent. The study then explains the dichotomy of the American executive personnel system between political appointees and the competitive civil servicehistorically. To this end, the study considers, on the one hand, the establishment of rotation of office in the Jacksonian Democracy, which led not only to the infamous spoils system but also to the modern party system. On the other hand, the book examines concepts and motives of reformers who, beginning in the 1870s, argued for the creation of a competitive civil service, which was ultimately established in 1883. Thereby, the study demonstrates the view of the American civil service reformers that a specifically democratic executive personnel system should not be based on the separation between civil service and society.