Legal truths around Trump’s “Schedule F”
Yes, Trump can make a dent in gutting the federal workforce
Although I have taught a course on federal agencies for many years (called Administrative Law) and written scholarly articles regarding this complex area of law, I must confess it took some research to unpack what Trump’s “Schedule F” is all about.
What I discovered was disconcerting.
So alas, my column today in The Hill is yet another a warning about one of Trump’s most disconcerting campaign promises: that he will take steps to fire tens of thousands of federal employees and replace them with loyalists.
A few pundits have dismissed some of his other threats of political prosecutions and mass deportations as empty rhetoric, but this threat is real, and we know that because Trump took steps in that direction during his first term with an executive order known as “Schedule F.”
What is the federal “civil service”?
Understanding Schedule F requires a brief historical detour.
Although George Washington made hiring decisions based on merit, the “patronage” or “spoils” system had taken hold by the time of Andrew Jackson’s electoral victory in 1828. Under the spoils system, federal appointments flowed from affiliations with the political party in power rather than competence. With the change of each administration, federal employees were fired en masse and replaced with supporters of the new president and his party.
To make the point that the spoils system breeds corruption, President Theodore Roosevelt colorfully described it as “more fruitful of degradation in our political life than any other that could possibly have been invented” because “[t]he spoilsmonger, the man who peddled patronage, inevitably bred the vote-buyer, the vote-seller, and the man guilty of malfeasance in office.” In other words, nearly every aspect of the spoils system was corrupt.
The system erupted in 1881, when President James Garfield was assassinated by a man upset that he was turned down for a federal job after working for Garfield and the Republican Party. Congress responded with the Pendleton Act of 1883, which replaced the spoils system with one based on competition and merit — what’s now known as the “federal civil service.”
What does the modern-day federal civil service look like?
Over 2.2 million people serve the country as members of the federal civil service. Since the Pendleton Act was passed over 140 years ago, such as the Civil Service Reform Act of 1978 (CSRA), which created a comprehensive system of protections for federal workers, including procedures for challenging adverse personnel actions. The law also imposed protections for whistleblowers and made clear that differences in political ideology are not grounds for dismissing an employee.
The CSRA established the Merit Systems Protection Board, or MSPB, for hearing appeals of employee firings, among other things. The MSPB is an independent agency headed by three people appointed by the president and confirmed by the Senate for a term of seven years. They can only be fired by the president “for inefficiency, neglect of duty, or malfeasance in office.”
Under a normal presidency, the system works relatively smoothly and federal civil servants can feel assured that their jobs will be protected from political considerations or interventions. If they are qualified and able to perform the job, their political party and ideology are supposed to be protected by the CSRA.
How did Donald Trump approach the civil service in his first term?
The MSPB was hamstrung throughout all four years of Trump’s first presidency because he refused to fill vacancies on the board — leaving it without a single member for two years and creating a backlog of over 3,000 cases. Impacted federal workers were left in limbo, some without jobs, until the Biden Administration took steps to fill the vacancies and address their claims.
But it gets worse. The CSRA also allows for carve-outs from the civil service for special categories of employees, such as people with disabilities or purely political appointees. The traditional civil service procedures and protections do not apply to those who fall under the so-called “excepted service.”
The carveouts are known as “Schedules.” Before Trump, there were five: Schedules A through E. In his first term, Trump added Schedule F by executive order, creating a new category: “men and women in the Federal service employed in positions of a confidential, policy-determining, policy-making, or policy-advocating character.” It’s a broad definition that likely captures thousands of employees.
The executive order was also carefully written in lawyerly prose to highlight the president’s prerogative to ensure “[f]aithful execution of the law” through “appropriate management oversight regarding this select cadre of professionals.”
Now that the Supreme Court has since gifted Trump nearly monarchical powers by creating immunity for presidents who abuse the Justice Department to commit crimes (Trump v. U.S.), anyone seeking to challenge the constitutionality of Schedule F as exceeding the president’s Article II authority to execute the law would likely fail.
What’s more, Congress as part of the CSRA also gave Presidents express authority to “ascertain the fitness of applicants [into the civil service] as to ... character, knowledge, and ability for the employment sought” and “prescribe the duties of individuals to make inquiries for” that purpose.
This means that Presidents have broad statutory authority to make new rules for the civil service — including additions to the Schedules exempting employees from protections from being fired over their disloyalty or politics. Trump can even direct that civil service positions be reclassified to Schedule F, meaning that he can turn civil service positions that are meant to be apolitical into jobs under his thumb. (The reclassifications can be appealed to the Office of Personnel Management, however.)
So Trump can probably implement Schedule F without much legal recourse.
What’s to stop Trump from recreating the spoils system?
Whether Trump gets away with firing thousands of federal workers and replacing them with loyalists probably has more to do with pragmatism than the rule of law or fidelity to the spirit of the CSRA. Despite far-right suspicion of the “deep state,” Americans depend on the federal workforce for basics that range from making sure airplanes don’t crash into each other in the sky to sending out Social Security checks. Finding loyalists to replace 2.2 million jobs would also take a lot of time.
But the corrupt goals of Trump’s Schedule F could be achieved by using it against just a handful of people while striking fear in the rest.
Project 2025’s online questionnaire for landing job in the next Trump administration asks about the influences on applicants’ “political philosophy.” According to one alumnus of the first Trump administration, the idea is to “see that you’re listening to Tucker, and not pointing to the Reagan revolution of any George W. Bush stuff.”
Meanwhile, Trump’s shadow president-elect, Elon Musk, has taking to doxing career federal servants he wants gone on his social media platform, X, prompting reports that “they’re afraid their lives will be forever changed.”
(The fear, of course, is the point.)
Follow the facts,
KW
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I expect Trump to move faster and do far more damage in his first 60-100 days than most can imagine. That is for several reasons: 1) he doesn’t give a rip about the Constitution or rule of law, unless of course it benefits him; 2) Project 2025 gives him a clear,detailed blueprint on how to implement the changes he wants, and 3) he has cadres of loyalists ready to get to work. It looks more to me like even the worst of his Cabinet picks will get approved even though I hope not. It’s important to know Schedule F details and other documents the new Administration will use and/or abuse. The real question in my mind is how to most efficiently fight the implementation of the worst policies and who’s going to do it?
Having offered the comment on https://crsreports.congress.gov › product › pdf › R › R44803 › 3
it also seems worth it to ask if the public cannot look at the procedures and the public interest involved in an honest and fact-based effort to recover the purpose of civil service, which is honest service that is also competent to fulfill tasks associated with good, rule of law, democratic constitutional governance? Right?
Or, is government a get-your-buddies a job tank? You know, there is real money sloshing around all over the place here, so let's get our friends a nice chunk of it, right? Everyone into the public money pool....
We can, as the 'we' in we the people ask that these questions be asked and be the central questions that guide entrance and continuance in public service. We must be very candid about what public interest or interests are present and of what importance the pursuit of such interest is or interests are. This is an effective and perhaps the strongest legal 'hook' we have to pursue 'competent and honest' civil service.
I will do some homework here.