Memo to Dept. of Government Efficiency: Reform needs deadlines. Without them significant change won't occur
Tackling inefficiencies in the operations of federal agencies is a worthy goal. To date, the current Trump administration has issued approximately 150 Executive Orders, a number of which are directed at government inefficiencies.
However, these particular steps toward agency reform will not work. The dominant strategy seems to be ordering indiscriminate staff firings and staffing amputations, a severe political prescription for fixing operational inefficiencies. Even so, putting federal staff on administrative leave, firings, canning career employees and layoffs gives satisfaction to some.
Mass-termination within a bureaucracy, as a principle for “fixing” a government agency, will not ensure that government works well. “It’s not over until I win” is an undeveloped way of curing whatever ails government agencies. A look at the underlying issues allows us to evaluate solutions on their merits rather than their sound-byte appeal.
While the federal judiciary is mostly immune from administrative “reorganization” efforts because of its independent status under the Constitution, statistics from this branch of government reflect an agency overrun with challenges. In the federal judicial system, undecided civil cases awaiting a decision for three years or more has increased by 346% over the past 20 years, from 18,280 cases in 2004 to 81,617 cases in 2024. All parties suffer when cases linger.
A similar situation can be found in the U. S. Immigration Courts. Despite its name, these courts are not a part of the federal judiciary but rather fall under the executive branch. Immigration judges do not have lifetime tenure. These judges handle deportations and other immigration matters as part of the Department of Justice.
Immigration court case backlog decreased by 1.6% since December, but the average wait time for cases has increased by 5.5% to 636 days. This agency-run court has approximately 3,600,000 immigration cases pending. Nevertheless, the administration has taken the legal position that the president may, at his discretion, remove administrative agency judges without deference to internal agency removal rules on the basis that the president should not be restricted in his ability to remove any principle administrative officer. The current OMB director in the administration has stated a president should have “boldness to bend or break the bureaucracy to the presidential will.”
Staffing cuts by the president are not the answer to successful management of immigration issues. The current situation is exemplified in an April news headline which reads, “Trump fires more immigration judges even as he aims to increase deportations.”
The administration has ordered the biggest mass-deportation program in U.S. history. However, in exacerbating the issue through mass-firings, it seems that this goal will only succeed if due process is also deported as a legal principle.
Occasionally, agencies address their dilatory habits internally. For instance, in 2005 Medicare Administrative law judges were required to issue decisions within 90 days of receiving a request for a hearing.
According to a federal report, during the first 13 months of operation, the judges were not meeting this requirement, but timeliness improved and in the third year of operation, judges began consistently meeting the 90-day deadline. However, an advocacy group found that judges began routinely missing decision deadlines again in 2010.
Some agency deadlines are seemingly breached as the rule rather than as the exception. However, mandatory agency deadlines aren’t all smoke and mirrors. In a case that ended up before the circuit court, the Department for Health and Human Services failed to reach decisions on various stages of administrative appeals on Medicare issues despite a clear mandate from Congress.
In 2016, the federal Circuit Court ruled that when an agency has failed to comply with statutory deadline, a court will not accept an agency’s discretion, that is, the agency must “find some other way” to meet deadlines. The appeal court stated, “congressionally imposed mandates and prohibitions trump discretionary decisions.” Staff cuts and the firing of administrative law judges will hurt, not help, meeting agency deadlines.
We must instead consider solutions that will address this issues in a deliberate manner, because justice delayed is justice denied. Some years ago, I was co-counsel in a civil litigation case in California. After we had rested our case and the opposition had rested their case, the judge announced something very curious from the bench.
He said, “Well, I’m going to have to decide this case pretty soon because I want to get paid.”
I said to myself, “What the devil? We sure as hell aren't gonna pay the judge — that’s illegal and unethical. I can't believe he’s saying that on the record.”
In reality, what the judge was announcing was that, as a judge, he needed to rule quickly to comply with California law. California has a judicial rule and a constitutional provision that requires judges to issue their decisions within 90 days of the case’s submission.
I was impressed with the rule and surprised that the rule actually works. A judge’s salary can be withheld if cases remain pending and undetermined for 90 days after the case is submitted for decision. In one state complaint against a judge, the state’s Commission on Judicial Performance found that since the judge under investigation had the ability to assign, reassign and arrange assistance for his cases to ensure that matters were timely decided, he could not be excused from the duty to decide matters within 90 days.
This 90-day rule has proven to be an effective solution. May I know the reason a 90-day deadline rule is not a part of the administration’s efforts to combat agency inefficiencies? The 90-day rule could be applied to both administrative law judges, agency staff, and bureaucrats.
I did not find reference to the use of decision-making deadlines in the Project 2025 report, the strategic roadmap in use by the administration for its government reorganization efforts, concerning any federal agency decision-making deadlines. The more than 900 page roadmap fails to include directions for decision-making deadlines.
Such a practical method for reducing inefficiency is not in the administration’s game plan. As Judge Gerling once told me, “Without deadlines you have little likelihood of prompt resolution.”
My maxim (based on experience) is “Without deadlines you have nothing.” If the interest of the administration is the betterment of government, why is this suggestion not included in the mix?
David L Ganje is an attorney who practices commercial, natural resources and environmental law. His website is lexenergy.net.
Photo: public domain, wikimedia commons
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