Schedule F appointment

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A Schedule F appointment was a job classification in the excepted service of the United States federal civil service that existed briefly at the end of the Trump administration during 2020 and 2021. It would have contained policy-related positions, removing their civil service protections and making them easy to fire. It was never fully implemented, and no one was appointed to it before it was repealed at the beginning of the Biden administration.

Contents

The purpose of the provision was to increase the president's control over the federal career civil service. While proponents stated this would increase flexibility and accountability, it was widely criticized as providing means to retaliate against federal officials for political reasons. It was estimated that tens or hundreds of thousands of career employees could have been reclassified, increasing the number of political appointments by a factor of ten.

Since mid-2022, the 2024 Trump campaign's plan to reinstate the provision has attracted attention and commentary. Common critiques of the measure include the functioning of government and the risk to democracy. In April 2024, the Biden administration adopted a regulation that would prevent most of the effects of a reinstatement of Schedule F, the repeal of which by a future administration would delay implementation by several months.

Characteristics

The legal basis for the Schedule F appointment was a section of the Civil Service Reform Act of 1978 ( 5 U.S.C.   § 7511(b)(2) ), which exempts from civil service protections federal employees "whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character". The provision had been little noticed and unused before its application by the Schedule F order. [1]

The stated purpose of the order was to increase flexibility in hiring and firing to improve performance management [2] and accountability. [3] The Civil Service Rules and Regulations would not have covered employees within the Schedule F classification, [2] including due process and possibly collective bargaining rights. [3] However, appointees could not have been fired based on certain protected statuses, such as whistleblower status, partisan affiliation, or for claiming discrimination or harassment. [3] [4] It would also have streamlined hiring for these positions, since a competitive examination would not be required. [5] : 2 

The executive order also provided transition procedures for transferring covered positions out of the competitive service into Schedule F, by which executive agency heads must petition the director of the Office of Personnel Management (OPM) with a list of positions to be converted with a written rationale. The OPM director had the sole power to decide whether to grant the petition. [2] [6] [7]

The Schedule F classification included "positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition". [2] They are distinguished from Schedule C appointments, which cover policy-making positions that do change with the presidential transition. [5] : 5–6  The executive order listed several characteristics of jobs that may fall under the Schedule F classification: [2]

According to OPM, these provisions were guidelines, as not all positions covered by them were required to be converted to Schedule F, and positions not covered by them may have been converted. [3] [8] The provisions were broad enough to include many scientists, attorneys, regulators, public health experts, and others in senior roles. The estimated number of employees they covered ranged from tens of thousands to hundreds of thousands. [3]

History

Planning

According to reporting by Axios, the idea for the Schedule F appointment was devised by James Sherk, a member of the advisory Domestic Policy Council who was seeking ways to prevent career civil service employees from resisting President Trump's agenda. In January 2019, while searching through Title 5 of the United States Code, which contains provisions on civil service protections, he came across 5 U.S.C.   § 7511, and brought it to the attention of the White House Counsel's Office. [1]

The executive order was drafted secretly over the following months and was completed by late spring of 2019. However, due to large agency workloads, it was decided to delay issuing it until 2020, which was further delayed by the COVID-19 pandemic. Trump was reportedly motivated by a desire to get even with recalcitrant officials after his first impeachment trial, which concluded in February 2020. [1]

Implementation

Schedule F was created by Executive Order 13957 on October 21, 2020. [2] Heads of all federal agencies were ordered to submit a preliminary list of positions that could be reclassified as Schedule F by January 19, 2021, the day before the next presidential inauguration, to John D. McEntee, the director of the Presidential Personnel Office, [9] [5] : 8  with the final list to be submitted on May 19, 2021. [5] : 8 

By the January 19 deadline, two agencies had submitted their petitions to reclassify employees. The Office of Management and Budget submitted a list of 140 position types, of which 136 were approved by OPM, excluding four Presidential Management Fellow positions. These 136 position types would have applied to 415 employees out of the agency's total of 610 employees. Most of the affected employees were in program examination, digital services, and policy analysis positions. [5] : 13–16  Some positions, such as administrative assistants, office managers, and IT workers, were potentially not clearly policy-making positions. [10] The necessary human resource processing steps were not taken prior to the change in administration, and no one was actually reclassified. The International Boundary and Water Commission submitted a petition to reclassify five of its 234 employees, but the executive order was revoked before OPM could approve them. [5] : 13–16 

Seven other agencies stated to OPM that they needed more time to finalize their lists, but five of these had made draft lists that they were still reviewing. The Federal Energy Regulatory Commission determined more than half of its positions met the criteria for reclassification, while the Equal Employment Opportunity Commission, Environmental Protection Agency, Federal Trade Commission, and OPM itself each had draft lists that would have reclassified around or less than 10% of their employees. Six agencies determined that they would not reclassify any positions: the Federal Maritime Commission, Federal Retirement Thrift Investment Board, National Archives and Records Administration, National Transportation Safety Board, National Labor Relations Board, and AmeriCorps. [5] : 17–18 

Repeal and later developments

It was repealed by President Biden through Executive Order 14003 on January 22, 2021, the third day of his administration. [11] [12] No employees had been moved to the new classification. [13] [14]

In mid-2022, it was reported that Trump and his allies planned to reinstate the Schedule F provisions if he were elected to a second term, [1] including identifying around 50,000 workers who could be reclassified. [15] In March 2023, reinstatement of Schedule F was included at a top of a list of proposals from the Trump 2024 presidential campaign, [16] while Ron DeSantis had written approvingly of it in his book The Courage to Be Free . [17] [18] The next month, it was reported that Project 2025, a coalition led by The Heritage Foundation, was preparing a personnel database that could be used to fill up to 20,000 potential Schedule F appointments in a future Republican administration. [19]

The Preventing a Patronage System Act was introduced at the beginning of the 117th Congress by Democrat Gerry Connolly of Virginia. [20] [13] It was passed by the House in July 2022 as part of its version of the National Defense Authorization Act for Fiscal Year 2023. [21] [22] [23] [24] However, it was removed from the final bill passed in December 2022. [15] [25] A similar bill, the Saving the Civil Service Act, was introduced in the 118th United States Congress. [26]

In September 2023, the Biden administration proposed a regulation that would allow employees to keep existing job protections even if their positions were reclassified, preventing most of the effects of a reinstatement of Schedule F. While the regulation could be repealed by a future administration, it would delay any implementation by several months. [27] [28] The rules were put into effect in April 2024. [10]

In February 2024, a Freedom of Information Act request revealed that Russell Vought planned to replace 'far more' than the 50,000 or so previously-identified workers including an estimated 68% of the Office of Management and Budget that he oversaw. [29]

Response

The creation of Schedule F was controversial. Critics feared a transition from a non-partisan government of subject-matter experts to one where partisan or presidential loyalty tests had a role in the hiring process. [3] At the time, it was estimated that tens or hundreds of thousands of career employees could lose their civil service protections including union representation, [3] [30] and that it would increase the number of political appointments by a factor of ten. [31] Conversely, there was concern that political appointees of Trump, whose appointments are supposed to expire at the end of his term, could "burrow in" by being converted to positions with that are harder to fire. [32] [30]

Rebecca Beitsch, writing for The Hill , wrote that unions were criticizing Trump's executive order as "the biggest change to federal workforce protections in a century, converting many federal workers to 'at will' employment." [33] The National Treasury Employees Union sued the administration in the United States District Court for the District of Columbia over the executive order, arguing that the administration did not properly justify it satisfied the legal requirement that the changes are "necessary" and as "conditions of good administration warrant." [34] [35] [ needs update ]

An official statement from Infectious Diseases Society of America (IDSA) further stated that the executive order was "alarming". [33] The six authors, all infectious disease specialists, and epidemiologists, wrote:

We rely on the judgment of civil service experts to lead responses against the pandemic, inform the public, drive research, update guidance and review data supporting the use and distribution of vaccines and treatments to address the impacts of COVID-19. Replacing our scientists and public health experts with politically motivated staff will reduce our ability to respond, and reduce public confidence in our response, to COVID-19 and other public health crises. [36]

On October 26, 2020, Ronald Sanders, the chair of the Federal Salary Council, resigned. Writing that he was a "lifelong Republican" who prided himself on having "served three Democratic and three Republican presidents," [37] Sanders sent a letter to John D. McEntee, Presidential Personnel Office director, characterizing Executive Order 13957, which had purported to hold federal employees more accountable, as a transparent attempt to fill the government with those loyal to the presidents at the expense of experts who are loyal to the Constitution and the rule of law. [38] [39]

Rachel Greszler, a fellow at The Heritage Foundation, said: "I really think that the order is unlikely to affect many of those workers because the overwhelming majority of federal employees are upstanding individuals, they're providing valuable knowledge and experience that the managers in the agency heads don't want to lose. It's only those bad apples who are derelict in their duties, or they're outright trying to thwart their agency’s actions that would need to worry about their job security." [4]

Congress

House Democrats introduced a bill in the 116th Congress, the Saving the Civil Service Act, that would halt the executive order's implementation and restore any converted or fired Schedule F appointees back into competitive service positions. [34] There was also discussion of adding the same provisions to either the National Defense Authorization Act for Fiscal Year 2021 or a continuing resolution for fiscal year 2021 appropriations. [40] A coalition of 28 labor unions supported these provisions. [41] However, no provision regarding Schedule F was included in the Consolidated Appropriations Act, 2021. [32]

House Democrats also requested documents about the creation of the executive order. [34]

Representative Don Beyer (D-VA) said, "it's an attempt to redefine the civil service as a political arm of the presidency rather than public servants who work for the American people", leading to "open cronyism that does not benefit the country, but the president." [3] Former federal human resources executive Jeff Neal called the order "the most direct assault on the career civil service since the passage of the Pendleton Act in 1883," which had created the merit-based federal civil service. [40]

Representative James Comer (R-KY) supported the change, saying that “our founding fathers never envisioned a massive unelected, unaccountable federal government with the power to create policies that impact Americans' everyday lives... President Trump has long pledged to take on this bureaucracy and restore power to the people by draining the swamp." [31]

Discussion

Much of Project 2025 or Agenda 47 relies on Donald Trump reenacting Schedule F, which he stated his intent to do. [42] [43]

Some legal experts have argued that it would create chaos in the civil service, which was overhauled in the Carter administration to have a more professional workforce and end political bias and the corruption of the spoils system. [42] [44] [45] Other critics, such as Mary Guy, have argued it threatens American democracy. [43] [46] [47] [45] Dean Obeidallah goes further by arguing that requiring government workers to swear loyalty oaths to the president and not the Constitution is a common authoritarian tactic. [48]

As for the constitutionality, proponents subscribe to the unitary executive theory, a theory that is not long-established or widely accepted, but rather controversial. [49] [50] [51] Beyond disputing its constitutionality, [52] [53] [54] [55] common criticisms include the idea that the theory is reckless, [56] leads to poor outcomes [57] [52] [58] and undermines democracy. [51] [59] [60] [61] David Driesen points to other countries where similar ideas of a more unitary executive have resulted in democratic backsliding. [60] The vast majority of democracies (including US states and local governments) purposefully diffuse executive power more widely than the President of the United States. [62] [63] [60]

See also

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  42. 1 2 Mascaro, Lisa (August 29, 2023). "Conservatives aim to restructure U.S. government and replace it with Trump's vision". PBS News . Associated Press . Retrieved July 24, 2024. 'We have a democracy that is at risk of suicide. Schedule F is just one more bullet in the gun,' Guy said.
  43. 1 2 Reid, Tim; Layne, Nathan (December 22, 2023). "Trump plan to gut civil service triggers pushback". Reuters. Opponents of the plan say stripping employment protections from civil servants would be a step toward autocracy and an effort by Trump to politicize the federal bureaucracy to carry out his policy agenda.
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  48. ↑ "'This is not original': Trump's 'Schedule F' executive order plan comes directly from authoritarian tactics". MSNBC . December 24, 2023. 2:37-6:13. Retrieved July 24, 2024.
  49. ↑ Dodds, Graham G. (2023), Akande, Adebowale (ed.), "Is the President a King? The Unitary Executive Theory and the Presidency of Donald J. Trump", U.S. Democracy in Danger: The American Political System Under Assault, Cham: Springer Nature Switzerland, pp. 487–517, doi:10.1007/978-3-031-36099-2_21, ISBN   978-3-031-36099-2 , retrieved July 12, 2024
  50. ↑ Wendling, Mike (July 7, 2024). "Project 2025: A wish list for a Trump presidency, explained". BBC. ...a controversial idea known as 'unitary executive theory'
  51. 1 2 Dodds, Graham G.; Kelley, Christopher S. (2024). "Presidential Leadership and the Unitary Executive Theory: Temptations and Troubles". In Akande, Adebowale (ed.). Leadership and Politics. Cham: Springer Nature Switzerland. pp. 548, 550–551. doi:10.1007/978-3-031-56415-4_22. ISBN   978-3-031-56414-7 . Retrieved July 18, 2024. Turning devoted public servants into mere servants of their master and by privileging presidential desires over institutional expertise and independence, the theory risks turning the chief executive into an absolute monarch. Moreover, by enlarging the already considerable powers of the presidency, it threatens to upset the country's delicate inter-branch balance by relegating Congress and the judiciary to inferior status...Trump showed us what happens when you support the use of such power with a person who appears to care little about the institution, the Constitution, or America's democracy....Thus the United States could see the unitary executive theory employed to significantly erode basic democratic principles.
  52. 1 2 Pilkington, Ed (June 7, 2024). "Trump plots capture of DoJ in renewed assault on US justice system". The Guardian. ISSN   0261-3077 . Retrieved July 19, 2024. 'That's what happens in authoritarian states – there is a semblance of a legal system, but it becomes useless,' she said. 'If that happens here it would be extremely troubling. We're not there yet. But I do think a second term could cause significant damage that may or may not be permanent.'
  53. ↑ Ornstein, Norman (June 26, 2007). "Blog: Cheney's chutzpah". The Economist. ISSN   0013-0613 . Retrieved July 11, 2024.
  54. ↑ Manheim, Karl; Ides, Allan (September 2006). "The Unitary Executive". Los Angeles Lawyer . SSRN   943046. Loyola-LA Legal Studies Paper No. 2006-39.
  55. ↑ Barron, David; Lederman, Martin (2008). "The Commander in Chief at the Lowest Ebb: A Constitutional History". Harvard Law Review . 121. Cambridge, Massachusetts: Harvard University: 941. Archived from the original on January 24, 2009. there are those who would argue that the 'unitary executive' must have effective control over all Article II functions, in which case the superintendence guaranteed by the Commander in Chief Clause would not appear to do any additional work with respect to superintendence.
  56. ↑ Hennessey, Susan; Wittes, Benjamin (January 21, 2020). "The Disintegration of the American Presidency". The Atlantic. Retrieved July 20, 2024. But the American system gets sticky when you contemplate vesting the executive power in one person who cannot be easily removed when that person is as mercurial and peculiar as Trump. In such situations, the structure can start to seem downright reckless. In concentrating power so that this person directs the federal government to do things—and in making this person exceptionally difficult to depose for a protracted period of time—one has to have a certain amount of confidence in that person's intentions and abilities.
  57. ↑ Somin, Ilya (May 3, 2018). "Rethinking the Unitary Executive". Reason . Retrieved July 20, 2024. UPDATE: I perhaps should have mentioned the oft-made argument that maintaining a unitary executive—even when it comes to powers beyond the scope of the original meaning of the Constitution—is desirable because it enhances political accountability. Even if true, this claim is about what is pragmatically desirable, not about the text and original meaning of the Constitution. But the claim is dubious even on its own terms. The greater the scope of executive power, the harder it is for rationally ignorant voters to keep track of more than a small fraction of it. Moreover, it becomes difficult to figure out how to weigh the president's performance in one area against what he does in others (assuming there is variation in quality, as will often be the case). It is therefore unlikely that concentrating a vast range of power in the hands of one person does much to enhance accountability.
  58. ↑ "How MAGA Republicans plan to make Donald Trump's second term count". The Economist. July 13, 2023. ISSN   0013-0613 . Retrieved July 19, 2024. One reason for the professionalisation of the bureaucracy in the 19th century was to provide the ship of state with enough ballast to keep sailing from one administration to the next...The vain and tyrannical whims of an emperor-president would emerge from the rubble.
  59. ↑ Howell, William; Moe, Terry (November 1, 2021). "Analysis | Big government vastly expanded presidential power. Republicans use it to sabotage the administrative state". Washington Post. ISSN   0190-8286 . Retrieved July 20, 2024. The unitary executive theory provides a veneer of legal authority for an authoritarian-inclined president to engage in a range of anti-democratic behaviors. By the time George W. Bush had shown what the unitary executive could justify — torturing prisoners, surveilling ordinary citizens, ignoring congressional statutes — constitutional scholars were already pointing to presidents as the chief threat to American democracy. With the rise of right-wing populism and the election of Trump in 2016, this threat was magnified by the accompanying transformation of the Republican Party itself, with its elites in Washington and around the country abetting Trump's authoritarian behavior in office...The Republican Party is now an anti-democracy party, and its future presidents — empowered by the unitary executive theory — threaten the fundamentals of the U.S. democratic system...Democrats have been complicit, but Republicans have pushed the trajectory beyond democratic bounds.
  60. 1 2 3 Driesen, David (November 1, 2020). "The Unitary Executive Theory in Comparative Context". UC Law Journal . 72 (1): 1. ISSN   0017-8322.
  61. ↑ Greenhut, Steven (June 28, 2024). "Project 2025: The Heritage Foundation's plan to embrace bigger government during Trump's second term". Reason . Retrieved July 11, 2024. But implementing what critics call 'unitary executive theory'—i.e., putting all aspects of the federal government under the control of the president—is a prescription for authoritarianism and abuse.
  62. ↑ Gersen, Jacob; Berry, Christopher R. (March 2008). "The Unbundled Executive". University of Chicago Public Law & Legal Theory Working Paper No. 214, 2008: 10–11. SSRN   1113543. Indeed, partial unbundling of executive authority is the norm rather than an exception in virtually all levels of non-national government units in the United States, of which there are more than 80,000. Authority that the governor or mayor would otherwise exercise is frequently given to a specific state or local officer. Often these officers are directly elected by the public. Other times they are elected by the legislature; other times still, they are appointed by another state official. These arrangements are only approximations of the unbundled executive ideal because they there is residual responsibility or authority for the policy in the general purpose executive...The average number of elected executive offices per state was 6.7 in 2002...
  63. ↑ Berry, Christopher R.; Gersen, Jacob E. (2008). "The Unbundled Executive". The University of Chicago Law Review . 75 (4): 1399–1400. ISSN   0041-9494.
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