Crux of the issue
With the final results of the US election pending potentially days’ worth of counting and Donald Trump’s expressed desire for a Supreme Court challenge, a recent executive order threatens to expand the president’s ability to fire career civil servants and — even if Joe Biden wins and Trump only has until January — further hollow out federal institutions.
The debate: unions, Democrats fight executive order
On October 21, Donald Trump issued an executive order that would strip civil service’s due process protections from career federal employees working on executive branch policy.
The White House press release — which positions the measure as “enhancing accountability” — explains that the order establishes a new classification for federal workers dubbed ‘Schedule F’ for those employees “serving in confidential, policy-determining, policy-making, or policy-advocating positions that are not normally subject to change as the result of a presidential transition.”
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Under the order, the White House claims federal agencies would have more flexibility to hire Schedule F workers and remove them without going through an appeals process:
“Removing poor performers, even from these critical positions, is time-consuming and difficult. The Government Accountability Office reports that it takes 6 months to 1 year to remove federal employees for poor performance. Surveys show career federal employees have long been frustrated with the failure of their agencies to hold poor performers accountable.”
While the order would make it easier to remove employees based on “poor performance,” it also prohibits certain personnel actions against ‘Schedule F’ employees, including actions “on the basis of the employee’s partisan affiliation, other protected characteristics, or because of the employee’s status as a whistleblower.”
All eligible employees would be reclassified as Schedule F save for the Senior Executive Service, who, CNN notes, operate just below presidential appointees. In late October, the Office of Personnel Management also gave agencies 90 days — roughly until Inauguration Day — to create and submit lists of positions deemed eligible for reclassification.
The measure was slammed by Democrats, with Senator for Virginia Mark Warner claiming Trump aims to fire top infectious disease expert Dr. Anthony Fauci and intelligence employees, while president of the the largest union for federal employees — American Federation of Government Employees (AFGE) — Everett Kelley called it the “most profound undermining of the civil service in our lifetimes”:
“Through this order, President Trump has declared war on the professional civil service by giving himself the authority to fill the government with his political cronies who will pledge their unwavering loyalty to him — not to America. By targeting federal workers whose jobs involve government policies, the real-world implications of this order will be disastrous for public health, the environment, the defense of our nation, and virtually every facet of our lives.”
Head of non-profit Partnership for Public Service Max Stier likewise claimed the order “obliterates” the line between politics and career civil service, while Senior Executives Association interim president Bob Corsi invoked Trump’s long-running conspiracy of a “deep state” in labelling the move as “nothing more than propaganda intended to further the message that career federal workers are corrupt and not dedicated to serving all Americans equally.” Corsi also alleged the new workforce would see positions “tied to vague performance metrics based on political talking points.”
As Federal News Network explains, the motion faces two challenges launched in late October: a bill introduced by House Democrats designed to nullify the order — which, unless the part flips the Senate, is doomed to fail — and a lawsuit from the National Treasury Employee’s Union that reads:
“This case is a textbook example of the president acting contrary to Congress’s express and limited delegation of authority to the president. Under the law, the president may only except positions from the competitive service when ‘necessary’ and ‘as conditions of good administration warrant.’ The president’s sweeping order fails to make a meaningful showing that shifting large numbers of federal employees into a new excepted service category so that they can be fired more quickly and without cause is necessary or supported by good administration principles.”
Health officials, scientists at risk
According to Politico, officials at the Food and Drug Administration are particularly worried after Trump accused the FDA “deep state” of purposefully delaying COVID-19 vaccine trials until after the presidential election.
Multiple top FDA officials have directly voiced opposition to having to determine which employees would be deemed eligible with their Commissioner Stephen Hahn; Politico even reports that acting head of the FDA’s drug centre, Patrizia Cavazzoni, has suggested she could submit a blank document if required to draw up a list. Additionally, the Trump administration-appointed head of civil service advisory council Ronald Sanders has resigned in protest of the policy.
Similarly, Nature reports that AFGE director of public policy Jacqueline Simon expects the hardest-hit science agencies would include:
- National Oceanic and Atmospheric Administration, which monitors the climate, manages fisheries, tracks storms and issues weather forecasts;
- the Environmental Protection Agency, which regulates air and water pollution from power plants and factories; and
- the Bureau of Land Management, which regulates land use by the oil and gas industry.
“If Donald Trump wants to leave the executive branch in a state of chaos, this is a brilliant way to do it,” Simon says.
Key points to note: what has Trump already done to the public sector?
That Trump has sought to reshape American bureaucracy is nothing new; a review by the Pew Research Center in 2017 found five of the 15 people Trump nominated to cabinet secretary roles had spent all or nearly all their careers in the business world, with no significant public office or senior military history to speak of.
Jump forward to just after Trump’s impeachment acquittal in February 2020, Axios reported the president’s personnel chief and loyalist John McEntee called in White House liaisons from cabinet agencies to identify anti-Trump political appointees.
This was after Trump almost immediately purged employees that testified during the impeachment, notably Lt. Col. Alexander Vindman — a key national security official who alleged that Trump’s July 25 call with Ukrainian President Volodymyr Zelensky was “improper” — and US ambassador to the European Union Gordon Sondland.
Other examples of Trump radically reshaping government institutions include:
- Postal service: gutting the United States Postal Service and replacing the postmaster-general with a loyalist (see ‘The Briefing’ back in August).
- Intelligence: installing loyalist John Ratcliffe as Director of National Intelligence, seeking to limit congressional oversight, and removing a veteran official from a national security role in the Department of Justice, as administration officials attempted to stop public discussion of Russia’s covert role in damaging Joe Biden and boosting Trump (The Guardian).
- Agriculture: the Economic Research Service — a source of reports on farm income and other policy areas — faced apparent retribution by Agriculture Secretary Sonny Perdue in 2018 after publishing reports on how farmers had been financially harmed by Trump’s trade feuds, the Republican tax code rewrite and other sensitive issues; Perdue brought the body under the control of USDA’s chief economist, who reports more directly to the secretary, inspiring a mass exodus including six economists quitting the department on a single day in late April 2019 (Politico).
- Science: as COVID-19 continued to work its way through America in July 2020, the Trump administration transferred responsibility for collecting COVID-19 data away from the Centers for Disease Control and Prevention. Back in October 2017, the EPA under Trump also took steps to prohibit key scientists from serving on advisory committees while making it easier for industry representatives to serve. (Nature).
- Additionally, The Guardian explained in April how the Trump administration abolished a US$200 million early warning pandemic program run by the US Agency for International Development since 2009, simply titled ‘Predict’, in September 2019.
- Immigration: in just one example from George Packer extensive essay at The Atlantic, ‘The President is winning his war on American institutions‘, civil servants at the Department of Justice either quit or were cowed into accepting Trump’s long crackdown on non-citizens i.e. the early “Muslim ban”, family separation border policies, etc.
For a comprehensive if now-dated explanation of Trump’s powers over, and relationship, with American institutions, see the 2018 United States Studies Centre report ‘US presidency: The past, present and future of America’s highest office‘.
Voices of experience: what happens if Biden scrapes through?
While it could be days until a winner is officially declared, it is worth examining what a Biden presidency could mean for a hollowed-out public sector.
Speaking to The Mandarin, Senior Research Fellow at the US Studies Centre Jared Mondschein notes that Joe Biden is the “ultimate institutionalist who believes that public sector laws and norms should be strictly adhered to”, but that it is unclear whether a potential Biden administration would prove to be “more susceptible to political pressure from norm-breaking in the public sector when the norms have already been so thoroughly ignored and broken by a prior administration.”
“The Trump administration has gotten rid of multiple inspectors general across the government, deliberately rid itself of federal employees deemed insufficiently loyal to the president, condoned unprecedented turnover and empty positions, and defied public sector norms on a number of fronts to an unprecedented extent in modern history.
“The most significant impact on the public sector is that it’s unclear if such norms will ever return because the political pressure widely anticipated to deter the breaking of public sector norms has proven to be insufficient. There clearly is an absence of sufficient laws and sufficient enforcement of public sector laws.”
Mondschein specifically cites the 1939 Hatch Act, aka ‘An Act to Prevent Pernicious Political Activities’, a federal law that theoretically prohibits public sector employees in the executive branch — save for the president and vice president — from engaging in some forms of political activity. He also notes that Biden, while critical of the Trump administration’s “hollowing out” of public institutions, does not yet have clear plans for the sector.
Biden, it should be noted, recently demonstrated a relatively-limited ambition to undo one of Trump’s other controversial appointments, Supreme Court Justice Amy Coney Barrett; hours ahead of the final presidential debate, CNN reported that he only pledged to form a bipartisan, nondescript commission to recommend changes to the Supreme Court. He continued to decline questions on whether or not he would expand the court to reduce the Republican’s 6-3 dominance.
Either way, political historian at the ANU Crawford School of Public Policy Dr Norman Abjorensen argued in The Canberra Times ($) in early October that, even if Trump is defeated, “the lingering effects of the assault will be felt for years to come.”
“Almost four years ago, US President Donald Trump rode into office with a virtual declaration of war on the public sector, vowing to ‘drain the Washington swamp’ and in the words of his then strategist, Steve Bannon, ‘deconstruct the administrative state’. In pursuing that aim, numerous federal agencies have been abolished or emasculated and professional people have been replaced by political appointees, regardless of expertise. The reach of policy has been deliberately shortened.”
Abjorensen argues the worst impacts have been felt by the State Department, which has had a strained relationship with the White House since the Muslim ban triggered a dissent channel memo — a mechanism established during the Vietnam War “designed to protect diplomats from making an argument contrary to existing US foreign policy” that attracted more than a thousand signatures.
As Politico reports, the move prompted the White House to force several senior career diplomats out and then-press secretary Sean Spicer to quip, “These career diplomats have a problem with it? I think they should either get with the program or they can go.”
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