On October 21, 2020, in an Executive Order, the president directed agency heads to identify current federal employees involved in “positions of a confidential, policy-determining, policy-making, or policy-advocating character.” All positions deemed to be involved in such work would be moved to a new “Schedule F” position and become essentially “at will” employees who may be fired at any time.
Let’s be clear, virtually everyone who works at the Departments of State, Defense and Homeland Security could be considered people who work in “confidential” positions if that definition is tortured to cover everyone with a security clearance. Large numbers of employees at the Departments of Justice and Energy could also be swept into this new category. Do we really want to remove all employment protections and due process from everyone in those departments?
Leaving aside the campaign slogan of some supposed need to “drain the swamp”, current protections for federal employees exist to ensure that expertise resides in the federal service and survives from administration to administration. For information on the early origin story of the civil service, read our recent Weekly Wastebasket and learn about President Garfield’s role.
The nation benefits from having a professional, merit-based civil service that doesn’t come and go on the whims of the party in power. That doesn’t mean there shouldn’t be performance-based reforms to the civil service, but that’s far from creating another level of political patronage. And that’s what this Executive Order is attempting to do.
What really tells the tale here is that agencies are supposed to have their plans in place by January 19, 2021. That’s the day before the inauguration of whoever wins the 2020 presidential election. And the Executive Order denies the right of appeal to anyone being moved to Schedule F.
Also, people who are currently serving in at will slots as political appointees under Schedule C would also be moved into this new schedule. Therefore, some portion of the people who currently serve in political appointments for the Trump Administration will be transitioned into the new Schedule F, effective the day before the next inauguration. Those people would, therefore, no longer be Schedule C employees who automatically leave at the end of the administration, should President Trump lose his re-election campaign. These folks would be Schedule F employees of the Biden Administration under this scenario. The next President could fire them…they’d have no right to appeal that decision either.
This is an extreme form of the “burrowing” that some political appointees try to do at the end of every administration. But rather than strengthening the civil service, this practice can water down the professional expertise of government employees by allowing less expert political appointees to move into permanent slots. If this Executive Order stands, and President Trump ultimately wins re-election, this gives him the power to get rid of a lot of federal employees he sees as either his enemies or insufficiently loyal to him.
Should it ultimately go into force, this order should be challenged in every way legally possible. There is no upside to taxpayers of having a less professional, less capable, and more politically vulnerable federal workforce.