Nicholas Handler, Texas A&M University School of Law, has posted The Administrative Law of McCarthyism, which is forthcoming in the Stanford Law Review:
--Dan ErnstThis Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, this Article shows that the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers—both through internal reforms initiated by the CSC and through judicial decisions that extended emerging administrative law doctrines into the domain of federal employment.
Senator Joseph McCarthy (wiki)
Drawing on original archival research, this Article reconstructs how the Loyalty Review Board, housed within the CSC, developed formalized standards for loyalty adjudications, including evidentiary thresholds, rights to notice and counsel, and appellate review. These procedures, while initially limited to loyalty hearings, came to inform broader doctrines governing the removal and discipline of civil servants. In particular, courts began to apply principles such as the Accardi doctrine and the Chenery rule—originally developed for public-facing regulatory action—to disputes between the federal government and its own employees. The result was a nascent body of administrative law that treated personnel decisions not as matters of unfettered executive discretion, but as legal acts subject to procedural constraint.
The Article makes two central claims. First, it argues that civil service law should be understood as a core component of administrative law—not merely a subspecialty of public employment law. Legal rules governing the hiring, discipline, and removal of civil servants serve the same functions as more familiar administrative law doctrines: they mediate interbranch conflict, preventing any one branch from dominating federal policy-making and thus serving deeper separation-of-powers and rule of law values. Second, it argues that the regulation of federal employment not only prevents the aggrandizement of the political branches, but also protects individual rights. In the postwar era, federal jobs functioned as a major form of state-administered benefit, and the procedures surrounding those jobs shaped broader public expectations about fairness, merit, and due process. Those expectations were deeply challenged during the unrest of the McCarthy period, but were ultimately vindicated by the creative adaption of administrative law principles.
These lessons are newly relevant today, as the second Trump administration embarks upon one of the most ambitious attempts to remake the federal civil service in generations, often explicitly seeking to replace merit systems with tests of personal and political loyalty.
