Horrible idea:
Before President-elect
Donald Trump can move “aggressively” to kill workforce protections for thousands of federal employees, as he has promised, he could face a vigorous court challenge.
He’ll be ready.
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But so will his opponents.
Trump will return to the White House better prepared than during his first term, and with the backing of a Republican-controlled Congress and a generally friendly Supreme Court majority. Potentially, critics of his workforce policies could have a tough fight in all three branches of government.
A key element of Trump’s preparation on federal employment issues is the work done during his four years away from Washington by
James Sherk, the self-described
shepherd of Schedule F, a contentious, but short-lived, federal employee workforce category. Biden revoked Schedule F when he took office, and later his
administration adopted a regulation designed to thwart a reissued Schedule F.
A year before Trump’s reelection, Sherk, Trump’s first-term domestic policy special assistant, outlined a defense of the policy that Trump announced during his first term.
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It could upend the traditional nonpartisan nature of the civil service.
Schedule F would make certain feds “at-will” employees, meaning they could be fired without the due process protections that allow appeals of adverse employment actions against government employees. In addition, the policy would allow agencies to fill those positions with political loyalists by skipping competitive hiring rules for career civil servants in positions “of a confidential, policy-determining, policymaking, or policy-advocating character.”
It’s important to note that while due process protects individual federal employees from arbitrary terminations, the public is the main beneficiary. The current rules protect everyone from partisan politics unduly infecting government services. Likewise, competitive hiring prevents a government workforce from being overpopulated with political pawns. While presidents and their political appointees set policies for agencies, career civil servants are charged with implementing those policies without political favoritism. Making many of them at-will employees threatens the nonpolitical nature of the federal workforce and the public services they provide.
While Schedule F opponents are marshaling their arguments, they are aware that Trump has powerful allies on his side. With Republicans controlling Capitol Hill next year, MAGA legislators could seek to make Schedule F law, if that seemed a faster route to implementation. That would require a Senate supermajority of 60 votes, however, meaning some Democrats would have to agree. Even if opponents won early judicial battles against the policy, they eventually could face a Supreme Court dominated by Republican-nominated justices, who are more inclined to favor Trump’s schemes.
Instead, it’s more likely that Trump reinstates the plan through another executive action, which is what the president has promised. During the presidential campaign,
Trump vowed to “immediately re-issue my 2020 Executive Order restoring the President’s authority to remove rogue bureaucrats. And I will wield that power very aggressively.”
Sherk outlined his Schedule F defense
last year in writings from his perch as the Center for American Freedom director at the Trump-allied America First Policy Institute. Then, he targeted the Biden administration’s regulation aimed at preventing Schedule F from returning. Sherk, who declined interview requests, claimed, oddly, in a September 2023
issue brief that President Joe Biden “is trying to protect the bureaucracy from accountability to the president.”
Despite the Biden administration’s roadblock, Sherk isn’t worried.
“What is done through executive action can be undone through executive action,” he wrote. Once Trump takes office in January, “Schedule F could be reissued with full force and effect. The Biden administration’s regulations can slow down — but not block — Schedule F.”
Sherk, an economist by training, contends any delay would be only a few months and “if Schedule F were reissued today, opponents would have virtually no legal basis to challenge it.”
Federal employment law attorneys, however, disagree on his timing and his legal analysis.
Even if Trump reissues his directive on Day One, it will still take more time than Sherk predicts for the necessary rules and regulations to be implemented, predicted James Eisenmann. He is a former executive director and general counsel of the Merit Systems Protection Board, a quasi-judicial agency that deals with allegations of unfair personnel actions against federal employees. Plus, he added, “they have to have a good reason for reversing the Biden regs.” Eisenmann now represents feds as a partner with Alden Law Group.
Sherk said appellate court rulings indicate positions with a “‘confidential, policy-determining, policymaking or policy-advocating character’ cannot be reviewed in court.” That’s a key phrase in the order. But for legal purposes it means “Schedule F is extremely, extremely broad,” Eisenmann said, perhaps too broad for legal muster.
The employees Schedule F defined as policymakers covers those whose jobs include “viewing, circulating, or otherwise working with proposed regulations.” That could cover “even administrative staff,” said Nick Bednar, a University of Minnesota associate law professor and political scientist who researches federal bureaucracies. “I question whether Congress intended the phrase to extend to employees in the competitive service that help superiors draft policy or simply view and circulate policy as part of their jobs.”
By expanding “the phrase to cover positions that merely ‘view’ policy documents,” he said Trump’s policy “would sweep positions held by non-appointees, such as scientists, administrative assistants, and IT professionals” into employment categories with easier termination policies. “This broadened definition goes beyond Congress's intent and exceeds the plain meaning of ‘policy-determining.’”
Sherk’s insistence that the order “retained protections against politically motivated” dismissals isn’t convincing. “The mere threat that the Trump Administration might use Schedule F as cover to fire these employees has already injected unfair political influence into the civil service,” Bednar said.
Feds have reason to worry about Schedule F mission creep.
In a long,
November 2023 letter to the Office of Personnel Management opposing the Biden regs, Sherk said “Schedule F would cover a maximum of 50,000 positions — about 2 percent of the federal workforce.” His issue brief, however, said “Schedule F would apply to between 2 and 4 percent of the overall federal workforce,” pushing the number closer to 100,000.
The number of employees affected, however, could be much larger than the number of positions.
A
Government Accountability Office report said the policy-heavy Office of Management and Budget under Trump sought to place 136 types of jobs in Schedule F. But that would hit 415 employees, 68 percent, of OMB’s workforce, according to the auditors’ analysis.
Further, the
America First Agenda for the next administration portends a much broader application of the policy. It declares: “Return the federal civil service to at-will employment — the original vision for a professional merit service.”
That’s one reason
Randy Erwin, National Federation of Federal Employees president, vigorously opposes Schedule F, even if his members would not be immediately affected by it.
“They’re making it sound like it’s limited,” he told me recently. “The problem is once it is established, there is a very strong concern that they’ll continue to expand and expand what federal employees Schedule F applies to.”