The Incumbent: Bending the Bureaucracy
President Trump is likely to double down on his ambitious management agenda in a second term, stepping up attacks on unions, taking aim at merit system principles and slashing regulations.
In the first two months of 2020, medical professionals at the Veterans Affairs Department saw troubling reports about a new coronavirus outbreak in China and began to raise concerns internally.
“We had nurses and doctors trying to sound the alarm on COVID-19 well before it entered the public consciousness,” said Suzanne Summerlin, deputy general counsel for the National Federation of Federal Employees. “They were saying, ‘We need more [personal protective equipment], we need to establish checkpoints and triage areas, we need a way to handle this. And how will we treat it if someone contracts this on the job or off the job?’” But as the coronavirus took hold in the United States and the pandemic accelerated, “there was a muzzle on the doctors and nurses,” she said.
That so-called muzzle traces back to a series of decisions initiated three years earlier by the Trump administration to undermine the power of federal employee unions. In 2017, Trump issued an executive order disbanding labor-management councils across the government, eliminating a key forum for frontline employees to collaborate and raise workplace issues with management. And in 2018, VA Secretary Robert Wilkie unilaterally ended “official time” for doctors and other medical professionals, effectively forcing union employees to perform their representational duties outside of work hours.
By mid-July, more than 39,000 federal employees and military service members had tested positive for coronavirus, including 3,128 VA employees. Forty-one VA workers had died from symptoms related to the virus. Labor representatives say these numbers could have been much lower had the administration heard and acted on the warnings of front-line employees, provided adequate personal protective equipment for essential workers and moved faster to maximize telework.
Reducing the influence of unions is just one piece of President Trump’s bold agenda for reshaping the federal bureaucracy. The administration has also pushed to merge agencies and move headquarters outside the Beltway, “reskill” employees in jobs that could be automated for more productive work, align benefits more closely with the private sector and make it easier to hire and fire civil servants. The president leans heavily on loyal political appointees and trusted family members to execute his priorities, often marginalizing government scientists and experts in the process, and routinely fills senior vacancies with acting officials who exercise less independence and authority than would permanent officials.
“We know that the public is frustrated with government’s perceived inability to deliver quality services for the American people,” Margaret Weichert told 50,000 federal employees at a listening session in Kansas City in March 2018, just three weeks after she became Trump’s deputy director for management at the Office of Management and Budget. Weichert, who left the administration earlier this year, spearheaded the president’s management agenda and aggressively pushed for reform during her three-year tenure, which included simultaneous service as acting director of the Office of Personnel Management, an agency she tried but failed to abolish.
The coronavirus pandemic has perhaps proved the biggest test of how well the administration’s management reforms are working, and the results—like those of many of Trump’s predecessors who have tried to overhaul the government—are mixed. While the president’s distrust and disregard for career federal employees he views as the “deep state” hindered agencies’ ability to respond to the virus, his focus on deregulation has hastened vaccine development and supported the rapid, large-scale manufacture of potential treatments as well as expanded telehealth services.
Whatever the merits of Trump’s management agenda, one thing seems clear to observers: he is likely to pursue his goals even more aggressively in a second term, and he is likely to forge ahead with or without the support of career federal employees, Congress or other oversight bodies.
“Trump believes he alone, often through sheer force of will, can solve certain problems,” wrote Cliff Simms, former White House communications aide, in “Team of Vipers: My 500 Extraordinary Days in the Trump White House” (January 2019). “Layered on top of that is his belief that all of life is a negotiation, and … a zero-sum game. Layered on top of that is his belief that personal relationships are paramount … And layered on top of that is his belief that creating chaos gives him an advantage, because he’s more comfortable in the mayhem than anyone else.”
Officials at OMB did not respond to repeated requests for comment about the administration’s second-term priorities, but the president’s actions over the last three and a half years offer a reliable guide to what the future likely holds for federal employees should Trump win reelection, observers and experts say. Over Trump’s first term, the federal government has moved away from the Obama administration’s model of collaborating with labor groups to a confrontational outlook on labor-management relations—an approach common among Republican presidents, labor experts Marick Masters, Robert Albright and Raymond Gibney noted in a recent paper analyzing federal sector labor-management relations over the last four presidencies. Trump has gone further than his recent GOP predecessors, however, in changing the collective bargaining landscape through executive power.
In addition to disbanding collaborative labor-management councils, the president signed three executive orders aimed at further reducing the influence of federal labor unions. The orders, which were enjoined by a federal judge until the U.S. Court of Appeals for the D.C. Circuit ruled in July 2019 that the judge lacked jurisdiction to hear the case, sought to make it easier to fire civil servants, limited the scope of collective bargaining, increased the speed of contract negotiations and restricted official time.
The White House has simultaneously limited unions’ ability to fight unfair labor practices by stacking the Federal Service Impasses Panel, which hears collective bargaining disputes, with members sympathetic to management and failing to nominate a Federal Labor Relations Authority general counsel. This vacancy means that unions have had to resort to filing internal grievances in order to reach the FLRA for adjudication, a process that first requires arbitration and, in most cases, takes at least a year.
Employees should expect to see agencies continue to “test the limits” in collective bargaining negotiations if Trump wins a second term, said Robert Shea, principal for strategy at Grant Thornton and former associate director at the Office of Management and Budget during the George W. Bush administration. “There are some exceptions of course, like in the area of law enforcement and immigration, but generally speaking there would be continued deterioration in [labor-management] relationships.”
Robert Tobias, director of the Key Executive Leadership Program at American University and a former national president of the National Treasury Employees Union, said he expects Trump to revive a George W. Bush-era initiative to tamp down on collective bargaining if he is reelected. Following the September 11, 2001, terrorist attacks, the Bush administration sought to expand the definition of “national security” to exempt some federal jobs from collective bargaining rules and reduce the scope of issues over which unions could negotiate.
Already, Trump in January granted the secretary of Defense the authority to block portions of the Pentagon workforce from unionizing to allow “maximum flexibility to respond to threats to carry out its mission of protecting the American people.” Defense Secretary Mark Esper has said he did not ask for the new authority and is awaiting staff recommendations on how or whether to use it. But Tobias anticipated that Defense leaders would use the power during a second Trump term, and the president could extend that same authority to other department heads.
“The president has the authority to determine who should be subject to collective bargaining, so every once in a while [Cabinet] secretaries indicate that they would rather not have to deal with employee representatives, and I think they would take a pretty aggressive stance to use [national security] language to eliminate people from being represented by unions,” Tobias said. “The ultimate goal is to reduce the effectiveness of federal employees and labor groups to represent people collectively. If you go after reducing the number of people who can participate in collective bargaining, then of course he could go after their ability to have dues withheld” from their paychecks.
Executive Action, and Its Limits
The Trump administration has become increasingly adept at instituting its policy vision via executive action, said Don Kettl, the Sid Richardson Professor at the University of Texas, Austin’s Lyndon B. Johnson School of Public Affairs.
“They simply don’t like them—they see unions as part and parcel of the Democratic ‘deep state,’ and they’ll do everything possible to undermine the role and power of unions,” Kettl said. “This administration increasingly has gotten its legs underneath it in figuring out how to use the prerogatives that come along with the presidency to reshape policy, and so these efforts through executive orders, executive decisions and other changes in policy, those things are coming through much more rapidly now. Now that they have essentially figured out how to play the game effectively, they’ll play it even more.”
One area where executive action would likely continue to prove unproductive is reducing federal workers’ pay and benefits. While Trump backed and signed into law a significant new benefit for federal employees—12 weeks of paid parental leave—his administration has consistently pushed for pay freezes or minimal increases, as well as a series of cuts to federal retirement programs and other non-salary benefits to bring them in line with the private sector.
There’s just one problem: Congress. Lawmakers often ignore requests for benefits cuts and override the president’s pay recommendations, and this is likely to remain the case unless Republicans regain a majority in the House during Trump’s second term.
The fate of another major Trump administration proposal—merging most of the Office of Personnel Management’s functions into the General Services Administration and moving OPM’s policy shop to the Executive Office of the President—also remains unclear due to a lukewarm reception from lawmakers of both parties. Congress required officials to pause the plan pending the results of an independent study by the National Academy of Public Administration slated for release in March 2021.
Shea said that although he believes the original OPM-GSA merger proposal was a good-faith effort to improve federal human resources, he suspects the plan will lose steam in a second Trump term, regardless of NAPA’s findings. “I think the energy behind that reorganization flowed from Margaret Weichert,” he said. “The effort to combine OPM and GSA failed in large part because the administration couldn’t articulate the ‘why’ adequately enough to get congressional support, and opposition was bipartisan. So, unless the administration is willing to make the case in terms of what benefits will result from the reorganization, I think they’ll have an even harder time in a second administration to take on some ambitious ideas.”
Kettl said that although he believes there is still enthusiasm within the administration for the OPM-GSA merger even after Weichert’s departure earlier this year, it is unlikely that there will be much progress on the proposal during a second Trump term.
“It’s very clear that the administration hasn’t given up on it, but it’s not clear how to go about doing so, given the position of both parties on the Hill,” Kettl said. “[The] simple fact is if you read through the federal regulations that have to do with the role of OPM, one of the things that suggests the sheer complexity of it is if you do a search for ‘OPM’ in the [U.S.] Code, you’ll find well north of 600 mentions or more. You can’t just wave a wand and move it out of existence.”
A Potential Threat to the Merit System
White House officials who want more centralized control of federal workforce policy may have found an avenue to achieving that goal without winning over Congress, Kettl said. A seemingly minor inclusion in a recent executive order to overhaul federal hiring could signal a new path forward for the administration. The order, which requires agencies to use skills assessments and interviews with subject matter experts to evaluate job candidates, rather than simply relying on educational attainment, also says the OPM director must consult with the director of OMB and the head of the White House Domestic Policy Council when reviewing job classifications and qualification standards.
This is the “first time in recent memory that the [policy council] has had an explicit role in personnel policy,” Kettl said. The language in the order “amounted to an explicit demand that the [council] be involved in policy review. A lot of that has always happened implicitly behind the scenes, but this was an explicit mention. That also signals a connection between the [council] and a set of outside conservative think tanks that have been working very hard for a long time on an aggressive personnel agenda for pay, benefits and at-will employment in the federal government.”
The idea that the Trump White House’s Domestic Policy Council could have even more influence during a second term is deeply concerning to union officials and governance experts alike who fear politicization of the civil service.
A recently published memo written by special assistant to the president for domestic policy James Sherk in 2017 served as a roadmap for many of the Trump administration’s federal personnel policies, including the executive orders cracking down on unions. The document also advocates one as-yet-unimplemented proposal: employing the “Constitutional option,” a legal theory that the president has 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.”
Such action, if successful, could invalidate the 1978 Civil Service Reform Act, and potentially even the 1883 Pendleton Act, and tear out the merit system principles that provide the basis for nearly all of federal employment law.
“I’m getting a little nauseous just talking about it,” Shea said. “The president and this administration has not been impeded by traditional institutional barriers or boundaries. But this one is sacred. The merit systems principles are simple, elegant, sacred values that undergird our democracy, and I don’t intend to be dramatic, but the protections of civil servants, who are national heroes, against political interference, including unfair discipline or termination, would probably be under threat if there were a second term of this administration.”
The National Federation of Federal Employees’ Summerlin blasted the underlying legal theory as completely unsupported by American jurisprudence, but said she also fears the plan could come to fruition. “These ideas they’re clinging to are so insufficient, so intellectually bankrupt that any law professor looking at that would have failed them immediately,” she said. “This is bad legal writing, this is bad legal theory … But it is really scary. They’re appointing a lot of [judges] with less trial experience than I have, and these positions have lifelong tenure and salary protection. I’ll have to contend with them for the rest of my career.”
Kettl said an effort to strip federal employees of the protections of the Civil Service Reform Act seems unlikely to succeed, but also said it would be the logical conclusion of an administration that has been more concerned with personal loyalty to the president than agencies’ missions.
It’s a disconnect that has been laid bare over the course of the coronavirus pandemic, as career federal employees like National Institute of Allergy and Infectious Diseases Director Dr. Anthony Fauci and White House Coronavirus Task Force Coordinator Dr. Deborah Birx have fallen in and out of the president’s favor based on their outlook on the pandemic on any given day.
“Senior people in the nation’s public health system, who have had positions for decades of incredible power and influence but are now under harsh political attacks because of political differences with an administration, gets right to the core of this,” Kettl said. “We’re due for a fresh debate about what the importance of the merit system is, what it can accomplish and how it should work.”
Attacks on Oversight, High Turnover
The president’s penchant for loyalty can be seen in his post-impeachment purge of career federal employees perceived to be disloyal, firing of inspectors general at the State Department and in the intelligence community, and ousting of vaccine director turned whistleblower Dr. Rick Bright.
Such firings have proceeded without congressional intervention. Though lawmakers asked Trump for more details on his reasons for dismissing the State Department IG, they have not taken concrete steps to prevent such dismissals. There “have been very few consequences for the president's attacks against ... independent oversight mechanisms” due to a “lack of unified response from Congress,” said Liz Hempowicz, public policy director at the watchdog group Project on Government Oversight. “I think the president is emboldened.”
The Trump administration has also failed to restore the Merit Systems Protection Board's quorum so it can adjudicate federal whistleblower cases, leaving employees who seek to report perceived fraud, waste or abuse without much recourse should they experience retaliation for speaking out. And it has not cooperated with a number of Democratic congressional requests for information to support investigations or witnesses to testify at hearings. While OMB Director Russell Vought said during a June confirmation hearing that the budget office is committed to spending transparency and will be “as responsive as we possibly can” to congressional requests, especially those related to overseeing coronavirus economic relief efforts, “responsive” is not how many lawmakers, especially Democrats, would describe the White House.
Trump’s management style contributes to high turnover within the administration, said Kathryn Dunn Tenpas, a nonresident senior fellow with Brookings’ Governance Studies and a fellow and secretary of the Governance Institute. Tenpas calculates that as of August 24, the turnover rate among 65 senior administration positions—Trump’s “A Team”—was 91%, significantly surpassing that of his five predecessors after a full term.
“I think what’s unique about this administration is that the president himself tends to publicly fire a lot of his senior staff and humiliate them, and he also oftentimes leaves them looking incompetent,” Tenpas told Government Executive. “If there is a second term, that’s not going to change.”
Meanwhile, Trump’s recruitment pool is shrinking because his campaign staff (a typical source of White House staffers) was small to begin with, he refused to hire anyone who spoke out against him previously and didn’t trust officials from the George W. Bush era, Tenpas said. “He’s churned through [personnel] very quickly and people on the outside with respected reputations and professions have seen how he handles and deals with chiefs of staff, secretaries of State, secretaries of Homeland Security, attorneys general…[and] will make a calculation of ‘Do I really want to take that risk?’”
In addition to high turnover, Trump has allowed an unprecedented number of vacancies to remain unfilled or has indefinitely filled some positions with acting officials whose legal standing is questionable. The Government Accountability Office in mid-August ruled that the top two officials at the Homeland Security Department were appointed to their posts unlawfully, though the department called the watchdog’s finding “baseless.” Trump later announced that he would nominate the department’s acting secretary, Chad Wolf, to the job permanently. If Wolf is confirmed, it would give the department a permanent leader for the first time since April 2019.
Tenpas anticipated that the administration’s staffing issues would worsen during a second term: “You’re probably going to get people who are less and less qualified for some of these really important jobs.” She also said she worries that career staff departures could hinder the government’s pandemic response, creating a dearth of institutional knowledge and experience in some critical areas.
Lawrence Gostin, global health professor at Georgetown Law and director of the school’s O’Neill Institute for National and Global Health Law, was even more direct. He expects the Centers for Disease Control and Prevention to “lose all of its independence and vibrance” if Trump is re-elected. “A second term would be near-catastrophic for the health and security of America,” he said.
Additionally, the president’s reliance on family members, including his daughter Ivanka and son-in-law Jared Kushner, to fill central advisory roles has also created confusion and uneven results. One of many assignments in Kushner’s broad portfolio was “Project Airbridge” to secure medical supplies and equipment during the pandemic. “Putting [Kushner] in charge of the supply chain seems to have been quite disastrous,” said Ciara Torres-Spelliscy, a law professor at Stetson University and Brennan Center fellow. “He didn’t have the skillset, he didn’t have the experience and from everything we can see in the public record he hasn’t done an effective job of getting resources to people who are impacted by the COVID-19 pandemic.”
The project ended in late June and while the administration has touted its success in delivering N-95 respirators, face shields, gloves and other essential personal protective equipment to areas of the United States with the greatest need, critics have said it’s hard to tell how many supplies were actually delivered and whether they went where they were most needed. “Our investigation found ‘Project Air Bridge’—like the broader Trump administration response to coronavirus—has been marked by delays, incompetence, confusion, ethics questions, and secrecy across multiple federal agencies and in the White House,” Senate Democrats said in a June 8 letter to Michael Horowitz, acting chair of the Pandemic Response Accountability Committee—a body whose oversight responsibilities Trump has resisted from the start.
On March 23, as lawmakers were still debating the provisions of the Coronavirus Aid, Relief and Economic Security Act, including how taxpayers would hold agencies and the administration accountable for the unprecedented spending, the president proclaimed, “I’ll be the oversight.” When he signed the CARES Act into law four days later, he issued an accompanying signing statement objecting to several of the law’s provisions designed to ensure financial transparency. Days later, Trump removed Glenn Fine, the acting Pentagon inspector general, effectively preventing Fine, a highly regarded IG, from assuming leadership of the Pandemic Response Accountability Committee. Fine had been slated to head the PRAC, but Trump’s action prevented him from taking on that role because the law stipulated that only an IG could hold the position. Fine resigned in June.
Trump’s actions notwithstanding, the PRAC, a congressional oversight commission and a Special Inspector General for Pandemic Recovery office are all up and running, and their oversight work will continue well into the next administration.
Reducing the Role of Government
John Yoo, a law professor at the University of California-Berkeley, informal Trump adviser and controversial former top Justice Department official who provided the legal rationale for torture of suspected terrorists during the George W. Bush administration, said he believes the “managing philosophy of a second term” will be that of continuing to assert control over the federal bureaucracy and narrow the reach of agencies. This was reflected in the administration's 2021 budget request released in February, seeking to “resize” the federal bureaucracy to eliminate programs the administration deems duplicative in order to focus on security priorities.
It also will likely be reflected in the administration’s continued pursuit of deregulation. “Trump sees [regulations] as burdensome, inconvenient or just a nuisance,” said Sally Katzen, a New York University Law professor and former Office of Information and Regulatory Affairs administrator during the Clinton administration. “With four more years, I am convinced he would attempt to, and probably succeed in dismantling much of the health, safety and environmental regulations that have conferred enormous benefits on the American people, from clean air and water, to safe food and drugs, to a healthy and well educated workforce, to competitive and transparent markets.”
Shortly after his inauguration, Trump issued an executive order that requires agencies to cut two regulations for every new one issued. After an almost three-year legal battle, a federal judge last December dismissed a lawsuit challenging that order, allowing the administration to proceed with the cuts. The administration has been using deregulation to speed up infrastructure projects, create jobs, increase efficiency for Medicare and Medicaid, and accelerate the construction of the border wall between the United States and Mexico.
Amit Narang, regulatory policy advocate at Public Citizen, noted that while the administration has been “very aggressive” in pushing deregulation, it has not been as successful in defending regulatory rollbacks in court. The administration has only succeeded in 18 of 107, or about 17%, of its regulation-related court cases, according to a tracker by New York University’s Institute for Policy Integrity. Historically, the average success rate among administrations is 70%, said Bethany Davis Noll, litigation director at the New York University’s Institute for Policy Integrity. “A large part of a second term could be focused on basically redoing the rollbacks that were found to be unlawful,” Narang predicted.
“Whatever people think a second Trump administration would look like—good, bad or indifferent—it is going to be more deregulatory,” Thomas Schatz, president of the nonprofit Citizens Against Government Waste, told Government Executive. “If you want more regulation, you want higher taxes, [or] you want more government involvement in your life, then you don’t want a second Trump administration.”
While Trump’s deregulatory agenda has been controversial, one area where the effort may prove critical is in the coronavirus response. Trump claimed in July that the government had “taken more than 740 actions to suspend regulations that would have slowed our response,” to the pandemic in areas such as telemedicine and obtaining ventilators, in addition to hastening vaccine development. The administration also removed regulations to allow VA to rehire retired experts to aid coronavirus efforts. “I have ordered federal agencies to look for ways to make these health care reforms totally permanent,” Trump said.
In May, the administration launched “Operation Warp Speed,” an ambitious public-private effort to develop, manufacture and distribute 300 million doses of vaccine for COVID-19 by January 2021. It would be an unprecedented achievement, if it works. As of late August, the government had committed about $12 billion on six candidates and HHS speculated that four vaccines could be in large-scale trials by mid-September. Richard Hatchett, CEO the Coalition for Epidemic Preparedness Innovations, told STAT News the initiative could potentially have tremendous positive global consequences. “They have invested … many billions of dollars in terms of funding the basic work and the clinical trials and the development of vaccines that will serve the needs of the world. They have invested more than all the rest of the world in aggregate,” he said.
While many have applauded the administration’s ambition and assumption of financial risk in developing a vaccine, Trump’s boosterism and promises of delivering one “very soon,” potentially by election day, have raised fears that politics is driving the administration’s effort, not science. Trump’s intervention was so concerning that rival vaccine developers in early September banded together to issue an unprecedented joint pledge to adhere to safety standards, and on Sept. 10, eight senior career civil servants at the Food and Drug Administration published an op-ed in USA Today declaring “We will work with agency leadership to maintain FDA’s steadfast commitment to ensuring our decisions will continue to be guided by the best science.” FDA Commissioner Dr. Stephen Hahn tweeted his approval of the op-ed and has repeatedly said that decisions will be based solely on scientific evidence, not political pressure.
That such statements would even be necessary is a testament to Trump’s unconventional presidency. Whether Operation Warp Speed proves to be a shrewd calculated risk or an expensive folly probably won’t be known for some time, but it is in keeping with a president who governs by instinct, unswayed by precedent.