Trump’s Schedule F Will Create a Civil Service that Serves His Whim Not the Rule of Law

Dear Readers:

A month before America goes to the polls to pick a president, the election is still a tossup. If Donald Trump finds himself in the White House again, he’s expressed grandiose plans to transform the “Deep State” into his personal tool to do his bidding through an executive order called Schedule F. 

This order would replace career civil servants with Trump loyalists willing to ignore constitutional guardrails, not to mention congressional intent, to serve his policy and political agenda. Administrative agencies certainly need to be reformed and hemmed in, but that’s not what Trump is proposing. He wants the power to use them for whatever ends he chooses.

To understand how big a challenge Trump’s designs pose for democratic, accountable governance, read the fourth installment in our “Fireproofing the Presidency“ series, written by University of Michigan’s Don Moynihan, who also blogs at his Substack newsletter, Can We Still Govern, which doggedly highlights the challenges of modern governance and practical ways to fix them.

Sarah Rumpf
Series Editor

A standard step in the authoritarian playbook is to secure power by taking control of the bureaucracy, especially the national security components of the state. Former President Donald Trump tried to do this at the end of his administration and has made this plan absolutely central to his second-term vision.

When Trump left office, the threats to democracy posed by Schedule F—his plan to reclassify hundreds of thousands of federal employees into political appointees he could fire at will—seemed remote. That is no longer true now that he has a viable chance of being reelected.

A chief lesson that Trump and his supporters learned was that they failed because they were unable to treat federal employees like contestants on The Apprentice, to be fired at Trump’s whims. In a second term, they have a plan to fix this problem that even if implemented haphazardly could generate extraordinary damage to the quality of American government and the stability of our democracy. As Robert Shea, a public management expert who served in the George W. Bush administration, noted, Schedule F would create “an army of suck-ups.”

Schedule F is an executive order that was signed by Trump, rescinded by President Joe Biden at the start of his administration, and which Trump has promised to resurrect (The “F” part is a reference to different classes of political appointees; there is already a Schedule A-E). Schedule F gives the president the power to reclassify career civil servants who have some sort of policy advisory aspect to their job into political appointees.

What does this mean? There are basically two classes of workers in government: career civil servants who work in government for the long-haul and are selected based on a non-political process, and political appointees. The first can only be fired for cause, i.e., poor performance or violating rules. The second are selected by the president and serve at his or her pleasure. In other words, political appointees can be pushed out for any reason the president deems worthy. From the perspective of career officials, under Schedule F they could be involuntarily reassigned from career status to at-will, providing them with much less job security.

These leading advocates for Schedule F during Trump’s term—who proposed that at least 50,000 officials could be reclassified just as a first step—include James Sherk, who joined the administration from the Heritage Foundation and now works for the America First Policy Institute; Russ Vought, the former Heritage Foundation official who ran the Office of Management and Budget for Trump and now leads the Center for Renewing America; and Paul Dans, the Trump official who led Project 2025. With support from the Heritage Foundation and the Conservative Partnership Institute, all have been involved in planning for a second Trump term in which Schedule F would feature prominently.

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The vague nature of the policy means that the upper limit of the order would be to convert hundreds of thousands of officials. There are about 2.1 million civil servants, and about 4,000 political appointee slots. So, converting tens of thousands, or maybe a few hundred thousand officials, into appointee slots might not seem like a big deal. But the U.S. is already an outlier when it comes to the number of political appointees relative to other countries, and the power those appointees hold, which tend to be the top leadership roles in government. Other countries do not embrace the degree of politicization the U.S. already has because research shows that more politicized systems are less effective in governing: they are associated with less stability, lower performance, and lower responsiveness to the public.

There is not a pressing need for more appointees; Trump never came close to filling his 4,000 slots, and had an extraordinary degree of turnover among those he did appoint. Instead, the function of Schedule F is to politicize more and more of the government and to force federal officials to worry that they will lose their job if they uphold their oath to the Constitution in the face of Trump’s demands.

Not to put too fine a point on it, but Schedule F would be the most dramatic change to the American civil service system since its creation in 1880s. It would effectively gut existing practices.

For over 140 years, Congress has set the terms by which public personnel systems are run, building a merit system with personnel protections as a response to the corruption and poor performance of the spoils system. Political appointees still hold leadership positions in agencies, but the officials who administer programs that respond to national disasters, address public health, oversee the regulation of food, air, water, and workplace safety have actual experience in those policy domains.

What would happen to the quality of the Food and Drug Administration if Commissioner Robert F. Kennedy Jr. was allowed to fire regulators approving Covid vaccines? There is already evidence that EPA scientists faced retaliation for refusing to downplay the health risks of chemicals during the Trump administration. A civil service system with job protections not only increases the expertise of public officials, but it also protects them from being pressured to take shortcuts or engaging in corrupt or undemocratic practices.

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One of the claims made by the Trump crowd that appeals to constitutional originalists is that Schedule F will heighten accountability, by making it easier for presidents to implement their policies and fire unresponsive bureaucrats.

On its surface, this claim has some appeal, implying a president-as-CEO logic. But the logic falls apart on closer inspection. The president is not a CEO. The intent of the Framers was not to give the president unchecked power. The executive branch is accountable to the public, the courts, and Congress in a myriad of ways that private businesses are not. This accountability is intended to protect the rights of citizens during their interactions with public services. Private businesses generally go out of business when they screw up. Not so with public organizations, which can use and abuse state power even when performing inefficiently. Allowing presidents to flatten internal points of resistance to their expansive powers would be a bad idea even when they weren’t touting plans to weaponize these powers against their opponents.

While many advocates for Schedule F-type reforms point to the unitary executive theory, emphasizing the president’s Article II powers, this theory is not originalist but rather a relatively new creation. As Stephen Skowronek has observed, the emergence of unitary executive theory came from conservative lawyers frustrated with constraints on Republican presidents in recent decades. Whatever merit there may be to this theory, Trump’s track record of disregarding constitutional norms means that broadly applying it to the civil service system would be a radical change. Elections every four years are simply not sufficient to replace the lost accountability for the president.

For Trump and his advisors, the purpose of Schedule F is to avoid accountability, not to embrace it. If he wins, Trump would be ineligible to run for office again, and so there is no electoral incentive to temper his actions in his second term. (He may ignore such constitutional constraints, of course, at which point Schedule F would be even more explicitly serving authoritarian ends.) His complaints during his presidency about the operation of the administrative state were usually not about responsiveness to specific policy goals, but frequently that they would not facilitate illegal behavior. In The New Yorker, Jonathan Blitzer reported that a former senior official in the Trump administration told him, “Inside the White House … Trump was constantly enraged that his Cabinet wouldn’t break the law for him.”

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Trump’s first impeachment offers a Rosetta Stone for the democratic risks that Schedule F would bring. That proceeding featured Trump seeking to use his public office of the president, and taxpayer dollars, for partisan and corrupt political purposes. The means of doing so—withholding aid to Ukraine in the hope of gaining dirt about his political opponent—was both illegal (violating the Impoundment Act) and unconstitutional. Trump political appointees were informed of this by career officials at the Department of Defense and the Office of Management and Budget. But they were ignored as the former covered up the illegal action and invented a secret legal rationale to justify it.

When the scandal was exposed, Trump forbade his appointees from testifying before Congress. Most of what was learned about the illegal actions and cover-up came from career officials. After the impeachment, Trump punished those officials to the greatest degree, removing them from their positions, blocking promotions, or demoting them. With Schedule F, he simply would have fired them, as he did at an unprecedented rate with inspectors general, the officials who are explicitly tasked with providing accountability within agencies. Few if any would have had the courage to testify and expose Trump’s illegal behaviors.

Remarkably, the Project 2025 training videos are actually instructing future Republican political appointees about how to evade accountability by excluding career staff from meetings and avoiding paper trails. Take Tom Jones, a Republican opposition researcher who runs the American Accountability Foundation, an ironically named organization given that its head is seeking to subvert formal mechanisms of accountability. “You’re probably better off going down to the canteen, getting a cup of coffee, talking it through and making the decision, as opposed to sending him an email and creating a thread that Accountable.US or one of those other groups is going to come back and seek.” Jones has already been scouring the social media posts of career officials, creating an enemies list of those who have expressed views hostile to Trump and should be fired via Schedule F if he returns to office.

Trump may not even need to fire too many employees to achieve the goal of terrifying the career bureaucracy into submission. Many will leave voluntarily rather than work in a politicized organization where their expertise does not matter. This is a real problem when the federal government has a huge proportion of employees eligible for retirement and struggles to hire younger employees. Those who can’t leave will become less likely to raise objections to the violation of democratic norms that they witness.

The politicization of the national security component of the state should be thought of as closely connected to Schedule F. Trump has signaled that he will use the military to police Democratic cities and put down protests, and to invade Mexico to address drug cartels. Trump’s own officials pushed back against such abuses of power in his first administration. With Schedule F, objections would be less likely to emerge.

A bipartisan group of former national security officials wrote that the use of politics

as a litmus test for the appointment or retention of civil servants, senior and otherwise, presents too great a risk to our national and homeland security. … In our decades of experience overseeing large, complex national security organizations under both Democratic and Republican Presidents, these individuals have always brought unrivalled technical expertise, institutional memory, and the ability to navigate complex bureaucracies that are truly priceless. Proposals that allow political loyalty to be substituted for merit in their ranks—even in the name of greater accountability—pose a significant risk.

While Trump has railed against the administrative state because it won’t let him settle vendettas or allow itself to be used for unconstitutional, illicit ends, many of his supporters might try and use administrative power as a backdoor means of achieving broadly unpopular, legally questionable policy goals that they avoid publicly acknowledging. These include banning the distribution of abortion medication and other aspects of a Christian nationalist blueprint for government. Even if their efforts are eventually defeated, they will curtail individual liberty in the interim, playing havoc with people’s lives.

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Valid concerns about fraud and wasteful spending within government agencies drive much of the support for populist reform ideas like Schedule F, but history has shown us that the “burn-it all-down,” politicize-everything model does not work and actually makes performance worse.

People may dislike aspects of bureaucracy, but they dislike politicians more. Nine out of 10 Americans, both Republican and Democrat, agree that a nonpartisan civil service is better for American democracy than the politicized bureaucracy that Trump proposes.

So what can be done? While the Biden administration adopted a rule that would limit the implementation of Schedule F, Trump could replace that rule within months and would likely prevail if a legal challenge were filed, given the leanings of the conservative Supreme Court.

The best solution is for Congress to reassert its historic role in providing a nonpartisan framework for managing public services, a task it has mostly shirked since the last major civil service reforms in 1978 (other than a few tweaks associated with the creation of the Department of Homeland Security in 2002).

Congress could block or constrain the effects of Schedule F, while also updating a civil service system that was last revised almost 50 years ago, by codifying Biden’s executive order into law, plus other reforms.

This would entail enacting various restrictions on any Schedule F reclassifications, such as limiting the number of employees that could be transferred to that category, imposing clearer definitions on what is included in a policy advisory role, and prohibiting involuntary reassignments, so civil service employees could decline to be reclassified. Trump’s ability to abuse the system through Schedule F would be sharply blunted if, for example, he could only transfer 1,000 employees, not the 50,000 contemplated in his original Schedule F implementation. Several of these reforms have already been proposed in a bill, the “Saving the Civil Service Act,” sponsored by Democratic Rep. Gerry Connolly and Sen. Tim Kaine, both of Virginia, and reintroduced in this most recent congressional session.

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Longer term, modernizing the federal workforce—which is older on average than the private sector—should also be a priority. There are a number of seemingly mundane reforms that could go a long way in improving performance and undercutting support for Schedule F. Among these are updating the federal employee pay and classification system to modernize the education and skills requirements, reducing red tape so it does not take months to hire someone, modernizing digital services and procurement practices, and providing customer service capacity training to meet the needs of the public rather than obscure bureaucratic processes.

Beyond passing legislation, Congress can also exert influence over the civil service through its immense oversight power—a power that is largely untapped. Congress should be strategically centering conversations around performance goals and performance data already produced by these agencies, and holding hearings that directly ask civil servants at various levels about their specific goals and how they are working to achieve them. The danger is that if Schedule F survives, congressional oversight resources will be consumed with just trying to keep up with the flow of scandals and abuses that would emerge, such as lucrative contracts being handed out to campaign donors or scientists fired for liking liberal posts on social media.

If Trump is reelected and gives orders for his political enemies to be punished, we would be far past the Rubicon where executive branch has become so powerful that for the legislative branch to claw back its power would be extremely difficult. Congress can hold hearings and pass laws trying to quash some of these abuses, but the damage may be done, especially the longer we get into a second Trump term. The lives of Trump’s targets would be ruined, competent public servants would exit a politicized public sector, a next generation of recruits would be skeptical of public sector work, and the public would grow wary of a scandal-ridden administration unable to achieve basic goals.

Apart from Congress, we’re left with the legal system, but after the Supreme Court’s immunity decision this summer, there is not a lot of faith that any court would step in to tell the president he has overstepped his powers.

When it comes to authoritarian threats, prevention is better than cure. Congress should pass restrictions on Schedule F before the election if at all possible. If Trump is reelected, any remaining issues should be addressed with haste because these defenses will be stronger the sooner they are enacted.

© The UnPopulist, 2024