Schedule F and Trump's New Politicization of Civil Service Expertise

In the U.S. federal government, a distinction between the president’s political appointees and career employees might seem like an immutable distinction. In the former category are agency leaders, such as Alex Azar, Secretary of Health and Human Services (HHS). In the latter we have Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases within HHS. Azar serves at the pleasure of the president and can be easily removed from his role, while Fauci serves whomever the president happens to be, and is protected from removal by a political appointee or the president.

At least that is how things worked until last week. You may not of heard about it but one week ago the Trump Administration issued an Executive Order that threatens to dramatically expand the scope of political appointees in government, to include experts like Anthony Fauci and perhaps every other employee who works in federal agencies. It is no exaggeration that Trump’s new executive order returns U.S. government employment to something approximating the “spoils system” of the 1800s, where government jobs were given out based on politics not competency. It is that bad.

In 1881, the assassination of President James Garfield by a deranged man who believed that he deserved a federal job focused public attention and helped to usher in civil serve reforms that had been discussed for decades. The Pendleton Act of 1883 established the now-familiar distinction between political appointees and career officials. The “merit system” replaced the “spoils system.” The administration of government became formalized in law for the first time. Not long after we saw the development of academic study of and training in “public administration” as a key contribution to governance.

In the almost a century-and-a-half since the Pendleton Act the U.S. government has developed an incredible array of agencies, centers and other administrative units which house world-leading experts in everything from public health to space flight to weather forecasting to finance to agriculture to environment to defense and on and on. The U.S. government’s civil service is an incredible and unparalleled resource to this country.

Trump’s new executive order — blandly titled Executive Order on Creating Schedule F In The Excepted Service — threatens to erase in practice any functional distinction between political appointees and career civil servants. I am not a constitutional lawyer, but I would expect this order having a difficult time surviving judicial review (it is hard to imagine conservatives embracing fundamentally redefining the civil service in opposition to over a century of established law and practice, but with this Supreme Court, who knows?).

The new executive order defines a fundamentally new category of federal employee, those “in confidential, policy-determining, policy-making, or policy-advocating positions.” In principle, this is so vague that it could be interpreted to include any federal employee, which is probably the point. The new executive order makes it easy to remove such employees:

Career employees in confidential, policy-determining, policy‑making, and policy-advocating positions wield significant influence over Government operations and effectiveness. Agencies need the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation.

Of course, “poor performing” could mean a failure to demonstrate fealty to the administration:

. . . the President and his appointees must rely on men and women in the Federal service employed in positions of a confidential, policy-determining, policy-making, or policy-advocating character. Faithful execution of the law requires that the President have appropriate management oversight regarding this select cadre of professionals.

The new executive order is part of a larger test of the powers of the presidency, including the legitimacy and legality of amending federal regulations via executive order. Under the Trump Administration Congress has seen its role as a constitutional equal to the president diminished immensely. Under a Biden Administration and the next Congress (if he is elected) leadership will mean restoring the constitutional role of Congress, at the expense of the executive.

University of Texas political scientist and expert in public administration Donald Kettl pulls no punches in his interpretation of the new executive order:

This is an aggressive effort to uproot the traditions of a highly skilled and politically impartial public service that have made the country great for more than a century. It is a bold effort to shift the constitutional balance of power, to weaken Congress, and to push aside the public’s right to participate in the process that shapes the regulations affecting them.

Not surprisingly, many members of Congress are outraged. Yesterday, a bill was introduced in the House to rescind the new executive order. Representative Carolyn Maloney (D-NY), chair of the House Oversight and Reform Committee says, “Trump’s executive order would replace our current nonpartisan, expert career civil service with one that is loyal only to him. Science, justice, and defending our nation would become subservient to personal loyalty to the President. Congress must act to prevent this travesty from happening.”

It is important to understand that the issues at play here are not Republican or Democratic. Support of civil service protections and a clear distinction between political appointees and career employees have long been bipartisan. Since the mid-1800s this political consensus has rarely been questioned. The politics here are not conventionally partisan, but they are purely Trumpian. It will be interesting to see how this issue evolves over the coming months. Whatever the outcome of the election next week, Congress faces a choice in how much power it is willing to cede to the President. The very fabric of expertise within our government is at stake.