The Legal Theories at the Heart of Trump’s Order Politicizing the Civil Service
Federal employees could find it hard to challenge the White House’s move to strip civil service protections from them, since courts traditionally have sought to avoid weighing in on agency terminations.
NOVEMBER 3, 2020
Federal employees and experts in the good government and academic community reacted in shock last month after President Trump signed an executive order undoing more than a century of federal civil service law with the stroke of a pen.
Trump’s directive established a new Schedule F within the excepted service of the federal workforce for employees “in confidential, policy-determining, policy-making or policy-advocating positions” and instructed agencies to identify career civil servants who meet that description and transfer them into the new job classification. The move will strip those workers’ civil service protections, effectively converting them into at-will employees.
The backlash to the decision has been swift and nearly unanimous. Groups like the Partnership for Public Service accused the White House of “obliterating” the nonpartisan civil service that has been in place since the 1883 Pendleton Act ended the spoils system of the 19th century, and the National Treasury Employees Union has already filed a lawsuit in an effort to block the directive’s implementation.
But experts fear the road to challenge the order in court will be a difficult one to navigate, thanks to a legal theory underpinning the order that has become popular among conservative advocates and federal judges’ long-held aversion to weighing in on individual employees’ termination.
The Schedule F order appears to be the culmination of nearly four years of efforts by the Trump administration to bend the federal bureaucracy to the president’s will. In a 2017 White House memo, James Sherk, then a member of the White House’s Domestic Policy Council, advocated what he called the “Constitutional option” on federal workforce issues—a legal theory that the president has the power through Article II to dismiss any federal employee for any reason.
“This implies civil service legislation and union contracts impeding that authority are unconstitutional,” Sherk wrote. “If so, the president could issue an executive order outlining a streamlined new process for dismissing federal employees. This would facilitate the swift removal of poor performers.”
The “constitutional option” is an extension of unitary executive theory, a concept espoused by some conservatives and self-proclaimed constitutional originalists that holds that the president has the power to control the entire executive branch as he sees fit. Efforts by Congress to constrain that power, such as the Pendleton Act and the 1978 Civil Service Reform Act, would therefore be unconstitutional.
Philip K. Howard, chairman of Common Good, wrote in 2017 that Trump should try his hand at civil service reform specifically by “reasserting” presidential authority.
“The constitutional question is this: Does Congress have the power to tell the president that he cannot terminate inept or insubordinate employees?” he wrote. “The answer, I believe, is self-evident. By executive order, the president could replace the existing civil service system with a framework consistent with legitimate goals—a new civil service system that honors principles of neutral hiring and is designed to foster a culture of excellence.”
In a statement reacting to Trump’s order, Howard indicated the directive was not exactly what he had in mind.
“Now President Trump, on the eve of the election, has inexplicably thrown a bomb into this reform backwater,” he wrote. “Instead of fixing the problems with civil service, he proposes to do away with civil service for potentially thousands of federal officials who are in policy positions, such as, for example, Anthony Fauci and Deborah Birx.”
A source of hope for opponents of the order could be the fact that the administration does not cite the president’s Article II authority in the executive order; instead, the president cites a provision of the Civil Service Reform Act that allows him to pull positions out of the competitive service “as conditions of good administration warrant.” NTEU’s lawsuit, for instance, argues that Trump has not sufficiently demonstrated that the order’s changes are “warranted.”
Although there may be an avenue for a statutory legal challenge against the order, things may be much more difficult for individual federal workers seeking to challenge their conversion to Schedule F or termination after being pulled out of the competitive service.
“The last thing that the courts want is for feds to be able to sue for wrongful termination,” said Deborah D’Agostino, a founding partner of the Federal Practice Group. “They will do everything they can to avoid that . . . The Administrative Procedures Act is clear that federal employees don’t have the right to sue over wrongful termination.”
D’Agostino noted that in Schedule F, agencies would be responsible for setting up their own administrative process to review allegations of prohibited personnel practices, although they appear to have the option to make such processes “toothless.” And even if aggrieved federal workers argue that process is a sham or that they have exhausted their administrative remedies, the courts could insist that they go to the Office of Special Counsel first.
“As it stands right now, there would be a prohibited practices complaint with OSC and the courts have said in the past—in some cases in the late ‘80s—they said, ‘Look, if you can’t go to the Merit Systems Protections Board or a forum like CIA employees have, you can still go to OSC if nothing else,” D’Agostino said.
But much of what courts decide to do may depend on former FBI Deputy Director Andrew McCabe’s lawsuit against the administration over his firing just hours before he was slated to retire from federal service. In September, a federal judge rejected the Justice Department’s efforts to dismiss the lawsuit and allowed the case to move forward.
Workers seeking to challenge their transfer into Schedule F could run into different problems.
“I can’t see a court letting this fly without a demonstration of harm, and I don’t think the mere reclassification [into Schedule F] will even constitute harm,” D’Agostino said. “There really isn’t a difference in an employee’s status right up until there’s an adverse action being taken. So I don’t know—until someone’s actually getting fired—that the conversion itself constitutes harm. I’m sure there’s an argument the courts might buy, if for no other reason than for the courts to declare, ‘This is not our problem, get out of here with that mess.’”