Shutterstock.com

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.

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.’”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.