By Daniel Cotter*
On October 21, 2020, President Donald J. Trump quietly issued Executive Order 13957, which dramatically changes the nature of federal civil servants’ job security. Because tens of thousands of federal employees might be impacted, the Washington Post editorial board wrote that the “newest executive order could prove one of [President Trump’s] most insidious.” The order replaces a competitive civil service application process with a system of cronyism for many existing federal positions. It also takes away some workers’ employment protections. For President-Elect Joe Biden, the order may prove to be an added hurdle to installing his administration, since he may face allegations of politically-motivated firings when he removes employees covered by the order.
Civil Service Protections
Currently, federal civil servants fit into one of three categories: 1) Senior Executive Service, 2) competitive service, and 3) excepted service. Most federal jobs fall into the competitive service category. According to the Office of Personal Management (“OPM”), the benefit of the excepted service categorization is that it “enable[s] agencies to hire when it is not feasible or not practical to use traditional competitive hiring procedures, and can streamline hiring.” In 2018, Schedule E was added to the excepted services schedules, pursuant to Executive Order 13843. Schedule E applies to federal administrative law judges.
Most civil service jobs below the Senior Executive Services traditionally have been competitive service positions, which require individuals to go through an application process. Those positions generally have more protections and rights. The difference between excepted and competitive services is that:
In the excepted service . . . [an employee] didn’t have to undergo the same hiring process as federal employees in the competitive service. Simply put, the competitive service has to follow the U.S. Office of Personnel Management’s hiring rules, pay scales, and so on. Agencies or positions in the excepted service don’t. In addition, Veteran’s Preference — which means if there is a veteran who meets the qualifications of the job, he or she gets priority over other equally qualified candidates — applies to competitive service jobs, but not to the excepted service.
Trump’s most recent executive order creates a new Schedule F, which covers “[p]ositions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition[.]” Schedule F also incorporates veteran’s preference hiring.
The Executive Order and What it Means
President Trump justified Order 13957 on the grounds that is necessary for the executive branch to effectively carry out its legal duties, saying that “[f]aithful execution of the law requires that the President have appropriate management oversight regarding this select cadre of professionals.” Under the order, agencies have until January 19, 2021, the day before the presidential inauguration, to provide lists of new Schedule F positions.
The order reads as an effort to remove civil servant protections from those in positions of “a confidential, policy-determining, policy-making, or policy-advocating character,” exchanging employee nonpartisanship for political cronyism. Many existing federal employees will be impacted by this new framework if it is fully implemented, including “[f]ederal scientists, attorneys, regulators, public health experts and many others in senior roles.”
In addition to taking protections away from many civil servants, the executive order also would expand the number of individuals whom the President can hire without a competitive process, resulting in what some fear will be a change from civil servants who serve the national interest to those who are loyal only to the President. The Washington Post editorial board warned:
Not only will politically motivated firing become easier, but it will also be easier to hire those who meet Mr. Trump’s standards: obsequiousness and, more often than not, a lack of qualifications. With no competitive process in place, leaders can appoint whom they please — or rather, who pleases them.
The executive order broadly defines the considerations that qualify positions for inclusion in the new Schedule F. Section 5(c) of the order states that each agency head should consider each of the following elements when seeking to place employees in Schedule F:
(i) substantive participation in the advocacy for or development or formulation of policy . . .
(ii) the supervision of attorneys;
(iii) substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law;
(iv) viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations . . .
(v) conducting, on the agency’s behalf, collective bargaining negotiations under chapter 71 of title 5, United States Code.
The sweeping scope of Schedule F may allow an administration to convert a large number of civil servants from unbiased experts to presidential loyalists.
Impact on the Election
Since Trump has lost reelection, though, Executive Order 13957 may make it more difficult for future President Biden to remove Schedule F employees.
Section 6 of the order provides that Schedule F employees are entitled to the protections of 5 U.S.C. § 2302(b), which prohibits discrimination in personnel decisions including on the basis of political affiliation. The inclusion of § 2302(b) protections appears intentional, as the statute itself specifically does not cover jobs “excepted from the competitive service because of [the role’s] confidential, policy-determining, policy-making, or policy-advocating character.” While Biden should cancel Executive Order 13957, he may nonetheless face allegations that the firing of any Schedule F employee is politically motivated.
On a longer-term basis, this order demonstrates the continued erosion of federal workforce protections for positions that are not politically connected. Over the course of his administration, Trump issued executive orders that “undermined federal labor organizations, abridged employee disciplinary procedures, created a new category of staffers without workplace rights and halted diversity training.” Trump has also politicized many top-level federal jobs by relying on an unusually high number of acting secretaries and officers. The Biden administration should strive to ensure that the federal civil service works for “we the people” rather than for “me the president.” Schedule F, like other Trump executive orders, dangerously politicizes the federal bureaucracy.
Quietly, on the eve of the final debate with former Vice President Joe Biden, President Trump signed his 193rd executive order. This latest one might indeed be the most insidious, potentially dismantling the civil service as we know it.
*Daniel Cotter is a lawyer practicing in Chicago. He is Co-Chair of the ACS Chicago Lawyer Chapter. He frequently writes about the Supreme Court and the judiciary, including on Twitter (@scotusbios), and recently published a book, The Chief Justices (Twelve Tables Press).