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 first Trump administration during 2020 and 2021. It would have contained policy-related positions, removing their civil service protections and making them easy to dismiss. It was never fully implemented, and no one was appointed to it before it was repealed at the beginning of the Biden administration. Trump has stated his intention to reinstate the Schedule F provisions at the beginning of his second term.

Contents

The purpose of the provision was to increase the president's control over the federal career civil service, which proponents stated would increase flexibility and accountability to elected officials. It was widely criticized as providing means to retaliate against federal officials for political reasons, impede the effective functioning of government, and provide risk to democracy. 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. 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 dismissed 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 Donald 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 effort

President Donald Trump at an event on October 20, 2020, the day before he signed the executive order creating Schedule F Donald Trump October 2020.jpg
President Donald Trump at an event on October 20, 2020, the day before he signed the executive order creating Schedule F

Schedule F was created by Executive Order 13957 on October 21, 2020. [2] The executive order had required heads of all federal agencies 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. [5] : 13–16  [9]

By the January 19 deadline, two agencies had submitted their lists. The Office of Management and Budget submitted a list of 140 position types, of which 136 were approved, which would have affected 415 of the agency's 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] [11] The necessary administrative steps were not taken, and no one was actually reclassified. [5] : 13–16  The International Boundary and Water Commission submitted a list of five of its 234 employees. [5] : 13–16 

Five agencies had draft lists. 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 efforts against reinstatement

President Joe Biden signing two executive orders including the one abolishing Schedule F Biden signing the Economic Relief Bill for the COVID-19 pandemic.jpg
President Joe Biden signing two executive orders including the one abolishing Schedule F

It was repealed by President Biden through Executive Order 14003 on January 22, 2021, the third day of his administration. [12] [13] No employees had been moved to the new classification. [14] [15]

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 dismissed Schedule F appointees back into competitive service positions. [16] 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. [17] However, no provision regarding Schedule F was included in the Consolidated Appropriations Act, 2021. [18]

The Preventing a Patronage System Act was introduced at the beginning of the 117th Congress by Democrat Gerry Connolly of Virginia. [19] [14] Although it was included in the House's version of the National Defense Authorization Act for Fiscal Year 2023, [20] [21] [22] [23] it was removed from the final bill and did not become a law. [24] [25] A similar bill, the Saving the Civil Service Act, was introduced in the 118th United States Congress [26] but, as of November 2024, was awaiting action in committee. [27] [ needs update ]

In April 2024, the Biden administration put into effect 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. [28] [29] [10]

Plan to reinstate

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. [24] In March 2023, reinstatement of Schedule F was included at a top of a list of proposals from the Trump 2024 presidential campaign, [30] while Ron DeSantis had written approvingly of it in his book The Courage to Be Free . [31] [32] 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. [33] Much of Project 2025 or Agenda 47 relies on Trump reenacting Schedule F, which he stated his intent to do. [34] [35]

After Trump was re-elected, federal policy experts [36] and others with knowledge of the campaign's plans said they expect the second Trump Administration to reinstate Schedule F within weeks of his taking office. [37]

Response

To 2020–2021 version

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] [38] and that it would increase the number of political appointments by a factor of ten. [39] 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 that are harder to dismiss. [18] [38]

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." [40] 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." [16] [41]

An official statement from Infectious Diseases Society of America (IDSA) further stated that the executive order was "alarming". [40] 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. [42]

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," [43] 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 president at the expense of experts loyal to the Constitution and the rule of law. [44] [45]

A coalition of 28 labor unions supported Congressional action to block the Schedule F executive order. [46]

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 also requested documents about the creation of the executive order. [16]

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. [17]

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." [39]

To potential reinstatement

Some legal experts have argued that it would create chaos in the civil service, which was formed by the 1883 Pendleton Civil Service Reform Act to have a more professional workforce and end political bias and the corruption of the spoils system; and last overhauled in the Carter administration through the Civil Service Reform Act of 1978. [34] [47] [48] Other critics have argued that Schedule F would threaten democracy, as it would make civil servants beholden to the party in power rather than the American people as a whole. [35] [48] [49] [50]

In the wake of Trump's victory in the 2024 presidential election, the American Federation of Government Employees, National Federation of Federal Employees, and other unions representing federal workers expressed fear and resolution against the President-Elect's policies, though many did not mention it in their congratulatory message. [37] Two days after the election, Heritage Foundation president Kevin Roberts expressed support for Trump for, among other signature campaign-promises, his pledge to, "dismantle the deep state." [51]

See also

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References

  1. 1 2 3 4 Swan, Jonathan (July 23, 2022). "Trump's revenge: How the former president could gut the federal bureaucracy". Axios . Retrieved July 26, 2022.
  2. 1 2 3 4 5 6 "Executive Order on Creating Schedule F In The Excepted Service". whitehouse.gov . October 21, 2020. Archived from the original on January 30, 2021. Retrieved October 24, 2020– via National Archives.
  3. 1 2 3 4 5 6 7 8 Rein, Lisa; Yoder, Eric (October 22, 2020). "Trump issues sweeping order for tens of thousands of career federal employees to lose civil service protections". The Washington Post . Retrieved October 24, 2020.
  4. 1 2 Temin, Tom (October 29, 2020). "Civil service executive order has some supporters". Federal News Network . Retrieved November 2, 2020.
  5. 1 2 3 4 5 6 7 "Civil Service: Agency Responses and Perspectives on Former Executive Order to Create a New Schedule F Category of Federal Positions". U. S. Government Accountability Office. September 1, 2022. Retrieved September 19, 2023.
  6. ↑ Wagner, Erich (October 23, 2020). "Agencies to Have Wide Latitude In Deciding Which Jobs to Strip of Civil Service Protections". Government Executive. Retrieved November 2, 2020.
  7. ↑ "Apply Authority to Move to Excepted Service Broadly, Agencies Told". FEDweek. October 26, 2020. Retrieved November 2, 2020.
  8. ↑ Rigas, Michael J. (October 23, 2020). "Instructions on Implementing Schedule F". U.S. Office of Personnel Management. Retrieved October 31, 2020.
  9. ↑ Wagner, Erich (October 22, 2020). "'Stunning' Executive Order Would Politicize Civil Service". Government Executive . Retrieved September 19, 2023.
  10. 1 2 Ortega, Bob; Lah, Kyung; Gordon, Allison; Black, Nelli (April 27, 2024). "What Trump's war on the 'Deep State' could mean: 'An army of suck-ups'". CNN . Retrieved April 27, 2024.
  11. ↑ Davidson, Joe (February 28, 2024). "Perspective | Trump's plan to gut civil service protections was harsher than estimated". The Washington Post . ISSN   0190-8286 . Retrieved August 7, 2024.
  12. ↑ Curran, John (January 22, 2021). "Biden Tosses Out Trump Administration 'Schedule F' Executive Order". MeriTalk. Retrieved January 14, 2022.
  13. ↑ Alms, Natalie (January 22, 2021). "Biden repeals Schedule F, rolls back Trump-era workforce policy". FCW. Retrieved January 14, 2022.
  14. 1 2 Wagner, Erich (May 25, 2021). "House Panel Advances Bill Aimed at Preventing Future Schedule F Efforts". Government Executive . Retrieved January 14, 2022.
  15. ↑ Shuham, Matt (January 20, 2021). "Trump Departs DC Without Carrying Out Order To Make Federal Workers Easier To Fire". Talking Points Memo . Retrieved July 26, 2022.
  16. 1 2 3 Ogrysko, Nicole (October 28, 2020). "House Democrats demand immediate stop to Schedule F executive order". Federal News Network . Retrieved October 31, 2020.
  17. 1 2 Mazmanian, Adam (October 23, 2020). "House Dems mull response Trump's order to remake the civil service". NextGov FCW. Retrieved November 2, 2020.
  18. 1 2 Alms, Natalie; Mazmanian, Adam (December 21, 2020). "Schedule F workforce plan survives funding bill". FCW. Archived from the original on November 10, 2021. Retrieved December 22, 2020.
  19. ↑ Ogrysko, Nicole (January 14, 2021). "New House bill would block future administrations from using Schedule F, or anything else like it". Federal News Network. Retrieved January 14, 2022.
  20. ↑ Miller, Jason (July 13, 2022). "Connolly NDAA amendment would put a Schedule F revival to rest". Federal News Network. Retrieved July 26, 2022.
  21. ↑ Wagner, Erich (July 15, 2022). "A Schedule F Ban Is Among Many Workforce Provisions in the Annual Defense Policy Bill the House Just Passed". Government Executive . Retrieved July 26, 2022.
  22. ↑ Connolly, Gerald E. (July 26, 2022). "Opinion | How to stop Trump's sneak attack on the civil service". The Washington Post . ISSN   0190-8286 . Retrieved January 2, 2023.
  23. ↑ "House Amendment 283". 117th United States Congress . July 14, 2022. Retrieved July 26, 2024– via Congress.gov.
  24. 1 2 Wagner, Erich (December 28, 2022). "Year of the Living Dead: How Schedule F Continued to Threaten to Upend the Civil Service in 2022". Government Executive . Retrieved January 2, 2023.
  25. ↑ Wagner, Erich (December 7, 2022). "Lawmakers Left Anti-Schedule F Legislation Out of the Compromise Defense Policy Bill". Government Executive . Retrieved January 2, 2023.
  26. ↑ Wagner, Erich (February 14, 2023). "Lawmakers Are Doubling Down on the Effort to Prevent the Next Schedule F". Government Executive . Retrieved September 19, 2023.
  27. ↑ https://www.congress.gov/bill/118th-congress/house-bill/1002/committees
  28. ↑ Friedman, Drew (September 15, 2023). "OPM aims to 'clarify, reinforce' protections against Schedule F, but some experts say it won't be enough". Federal News Network . Retrieved September 19, 2023.
  29. ↑ Pager, Tyler; Rein, Lisa (September 15, 2023). "Biden administration proposes new rule that would limit Trump purge". The Washington Post . ISSN   0190-8286 . Retrieved September 19, 2023.
  30. ↑ "Agenda47: President Trump's Plan to Dismantle the Deep State and Return Power to the American People". Donald Trump 2024 presidential campaign. March 21, 2023. Retrieved December 14, 2023. First, I will immediately re-issue my 2020 Executive Order restoring the President's authority to remove rogue bureaucrats. And I will wield that power very aggressively.
  31. ↑ Smith, Allan (April 26, 2023). "Trump zeroes in on a key target of his 'retribution' agenda: Government workers". NBC News . Retrieved September 19, 2023.
  32. ↑ Weisner, Molly (June 30, 2023). "Schedule F is about accountability, not spoils system, ex-officials say". Federal Times . Retrieved September 19, 2023.
  33. ↑ Swan, Jonathan; Haberman, Maggie (April 20, 2023). "Heritage Foundation Makes Plans to Staff Next G.O.P. Administration". The New York Times . ISSN   0362-4331 . Retrieved September 19, 2023.
  34. 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.
  35. 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.
  36. ↑ "Trump's promise to revive Schedule F could become a 'prompt' reality". Federal News Network. November 8, 2024. Retrieved November 11, 2024.
  37. 1 2 "Federal groups, unions brace for what a second Trump term may bring". Federal News Network. November 6, 2024. Retrieved November 11, 2024.
  38. 1 2 Mueller, Eleanor (October 26, 2020). "Trump federal salary adviser quits post over executive order reclassifying workers". Politico . Retrieved October 26, 2020.
  39. 1 2 Ogrysko, Nicole (October 23, 2020). "What they're saying about the new Schedule F". Federal News Network . Retrieved October 24, 2020.
  40. 1 2 Beitsch, Rebecca (October 26, 2020). "Trump federal salary adviser resigns over order stripping worker protections". The Hill . Retrieved October 27, 2020.
  41. ↑ Smith, Ian (October 28, 2020). "NTEU Sues Trump Over Schedule F Executive Order". FedSmith. Retrieved October 31, 2020.
  42. ↑ Alexander, Barbara; Gandhi, Rajesh T.; Pogue, Jason M.; Hayden, Mary; Bryant, Kristina A. (October 26, 2020). "Order to Reclassify Civil Service Posts Will Compromise Responses to Public Health Threats" (Press release). Infectious Diseases Society of America . Retrieved October 27, 2020.
  43. ↑ Wagner, Erich (October 26, 2020). "Salary Council Chairman Resigns in Protest of Trump Order Politicizing Federal Workforce". Government Executive . Retrieved July 22, 2024.
  44. ↑ Czachor, Emily (October 26, 2020). "Trump Official Resigns Over Executive Order Asking for 'Political Loyalty'". Newsweek . Retrieved July 22, 2024.
  45. ↑ Yoder, Eric (October 26, 2020). "Trump appointee resigns over the president's order removing job protections for many civil servants". The Washington Post . ISSN   0190-8286 . Retrieved July 24, 2024.
  46. ↑ Wagner, Erich (October 30, 2020). "Coalition of 28 Labor Groups Urges Congress to Block Trump Order Creating Schedule F". Government Executive . Retrieved October 31, 2020.
  47. ↑ Mai, H.J.; Inskeep, Steve (August 16, 2023). "If Trump is reelected, the independence of federal agencies could be at risk". NPR . 'Under the previous regime, often referred to as the spoils system, both political parties were giving out government jobs on the basis of patronage,' Manners said. 'They would reward loyal party members with cushy government jobs and we ended up with a situation where you had not only corruption, but you just had a wasteful, ineffective government with people on the payroll who didn't have particular expertise in the role.' Manner, who has examined the legal structure of independent agencies, said she finds it somewhat ironic that those who now want to get rid of these agencies are using the same language, describing them as wasteful, inefficient and intrusive.
  48. 1 2 Linkins, Jason (September 23, 2022). "The Republican Plot to Weaponize the Government Against Political Enemies". The New Republic . ISSN   0028-6583 . Retrieved July 24, 2024.
  49. ↑ Ortega, Bob; Lah, Kyung; Gordon, Allison; Black, Nelli (April 27, 2024). "What Trump's war on the 'Deep State' could mean: 'An army of suck-ups'". CNN . Retrieved July 24, 2024.
  50. ↑ Mascaro, Lisa (July 24, 2024). "Conservative-backed group is creating a list of federal workers it suspects could resist Trump plans". Associated Press . Retrieved July 24, 2024.
  51. ↑ "Heritage Foundation President Congratulates President Trump". The Heritage Foundation . Retrieved November 11, 2024.
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