Trump Executive Order Could Have Big Implications for Federal Employees Across Government

“It is a perversion of our career civil service, and that may be even more so at agencies like the FCC and FTC that were established as independent agencies,” Jeffrey Lubbers, professor of practice in administrative law at American University, told us. “If allowed to stand, there is a risk of a big purge of mid- to high-level civil servants who have ever said something that the administration doesn't like,” he said. “It would also certainly deter qualified people from seeking such jobs in the future as well. It harks back to the loyalty oaths of the 1940s and '50s.” If Democratic nominee Joe Biden is elected president, the EO is “a prime early candidate for the dustbin,” he said.

“It’s a blatant and ignorant assault on 140 years of civil service and on dedicated public servants,” said former FCC Commissioner Michael Copps, now at Common Cause: “Every day brings a new dismantlement of our government, and this is one of the worst.” The agencies didn’t comment.

The EO “will radically reshape the civil service by drastically increasing the number and type of employees who are subject to dismissal without adverse action rights,” said the union that represents FCC employees, the National Treasury Employees Union, in a lawsuit (in Pacer) filed last week against President Donald Trump and the Office of Personnel Management in U.S. District Court in Washington, D.C. A “critical part” of NTEU’s mission is protecting employees from arbitrary treatment, the union said. The lawsuit asks the court to declare the EO unlawful and enjoin OPM from implementing it.

NTEU says the preliminary injunction is justifiable because of the severe burdens the EO will cause for the union, which represents 150,000 federal employees in 33 federal government departments and agencies. At the FCC, NTEU represents about 800 employees. The union is assessing the order’s effects and determining which employees are affected, the lawsuit said. “Given the extraordinarily broad definitions contained with the Executive Order, significant time and resources will be spent on this task,” it said. The union is “very concerned” and believes “mechanisms in place legislatively and judicially” prevent the order from taking effect, said Tracy Bridgham, president of NTEU's FCC chapter. Her group is “assessing the effects of the White House Schedule F EO on FCC employees,” she said. The FCC didn’t comment.

“This is the most profound undermining of the civil service in our lifetimes,” said American Federation of Government Employees President Everett Kelley in a blog post on that union’s website. “The president has doubled down on his effort to politicize and corrupt the professional service.” The EO “does not articulate the underlying case for the new Schedule F job classification and provides more questions than answers, including the process for creating the executive order and who is covered by the changes," said the Partnership for Public Service in a release. “What is clear is that many federal human resource professionals inside and outside of government were neither consulted nor informed.”

The White House portrays the order as providing space for agencies to remove advisers who aren’t doing their jobs but have civil service protections, without a hearing before the quasi-judicial Merit Systems Protection Board, said Peter Strauss, administrative law emeritus professor at Columbia Law School. “It’s a return to the spoils system” and could have a chilling effect on agencies where there’s more emphasis on loyalty to the leader in charge, he said. The EO is part of a decades-long trend of increased politicization of agencies. Now anyone in any position of influence to policy is effectively a political appointee, and the only agency staffers not taken out of civil service are secretaries, office clerks, cleaning staff and ground-level employees, he said.

“Perhaps this is in part a response to the Obama administration moving its political appointees into civil service jobs,” suggested Mark Jamison, University of Florida professor who worked on the Trump transition at the FCC. Jamison cited a 2017 General Accountability Office report that said 76 political appointees got career positions under Obama, sometimes without prior OPM approval.

“How this would impact the FCC would depend upon the quality of the appointments,” Jamison told us: “Both Democrats and Republicans have noted that hiring rules have driven the FCC to be dominated by lawyers. A good chairperson could use the flexibility to bring in quality experts for short stints. A weak chairperson could do a lot of mischief.”

“The Government’s current performance management is inadequate, as recognized by Federal workers themselves,” said the Oct. 21 order. “The 2016 Merit Principles Survey reveals that less than a quarter of Federal employees believe their agency addresses poor performers effectively. Separating employees who cannot or will not meet required performance standards is important, and it is particularly important with regard to employees in confidential, policy-determining, policy-making, or policy-advocating positions.”

Ronald Sanders, Trump-appointed chair of the Federal Salary Council, tendered his resignation after the order was released. “The President’s Executive Order purports to serve a legitimate and laudable purpose ... that is, to hold career Federal employees ‘more accountable’ for their performance,” he said. The order is really “nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process,” he said: “I simply cannot be part of an Administration that seeks to do so ... to replace apolitical expertise with political obeisance.”

The EO includes officials who substantially participate in development or drafting of regulations and guidance, so "virtually every employee in every federal regulatory agency with a role in the rulemaking process could be swept into the new Schedule F," emailed Donald Kettl, a professor in the University of Texas-Austin's LBJ School of Public Affairs. Such staffers "would become at-will employees and could be dismissed for any reason whatsoever," he said. The order also asserts the president’s power to change the Code of Federal Regulations through executive order instead of going through the steps outlined in the Administrative Procedure Act, Kettl said. "This would amount to a radical change in rulemaking, making the process more opaque, less open to public participation, and far more likely to raise enormous balance-of-power questions with Congress," he said.