A future president need only to rescind President Biden’s order to reinstate Schedule F. Image: Katherine Welles/Shutterstock.com
Following is the House Oversight and Reform Committee’s report on a bill the committee recently approved on a party-line vote to prevent a future administration from moving competitive service employees involved with policy matters into a new excepted service “Schedule F” as the Trump administration did by executive order in late 2020, an order that President Biden quickly revoked in early 2021. The bill’s language meanwhile has been attached to a bill approved by the House and language to the same end has been attached to a bill pending in the Senate.
The Preventing a Patronage System Act would protect civil service rights and prevent federal employees from losing statutory and job protections. The bill would prevent any position in the competitive service from being reclassified to an excepted service schedule created after September 30, 2020. The bill would also limit federal employee reclassifications to the five excepted service schedules in use prior to fiscal year 2021.
The bill would protect the civil service system from political manipulation by codifying which federal employees can be hired or removed from their positions without due process.
BACKGROUND AND NEED FOR LEGISLATION
The civilian federal workforce is comprised of three types of service: the Competitive Service, the Excepted Service, and the Senior Executive Service. Most civil service positions exist within the Competitive Service, which requires applicants to undergo a written test or other evaluation to demonstrate that they possess the acumen to perform their duties successfully before they can be hired into that position. Civil servants in the Competitive Service cannot be fired without due process, and are in this way protected from political interference within the executive branch.
Congress abolished the ‘‘spoils system’’ and created a merit-based civil service with the enactment of the Civil Service Act of 1883. Also known as the Pendleton Act, the Civil Service Act of 1883 established the Civil Service Commission and created the Competitive Service and two excepted service categories, called schedules.
Historically, excepted service categories were created for positions that required unique hiring or operating rules, for example positions of a short-term political nature or positions in remote areas or areas with a hiring need so great that competitive civil service rules could not apply. In these cases, individuals hired into positions classified in the excepted service were not vested with certain civil service appeal rights because they had not undergone the required competitive hiring process.
In 1956, at the direction of President Eisenhower, the lines between the competitive service and excepted service were clarified and redrawn, resulting in the creation of Schedules A, B, and C of Title 5 of the Code of Federal Regulations, Section 6.2. In the past ten years, two additional Schedules, D and E, were created—to open pathways to attract young talent and to except Administrative Law Judges from the Competitive Service, respectively. In 2020, President Trump issued a far-reaching executive order to create a new excepted service Schedule F, which would have removed statutory appeal rights from many federal employees whose jobs are of a ‘‘confidential, policy-determining, policy-making, or policy-advocating character.’’ Employees in this new Schedule F could have been subject to removal for partisan political reasons, instead of merit or job performance. The creation of Schedule F would have countered decades of congressional actions to support an independent, professional civil service.
President Trump’s creation of a new Schedule F created an exception to the competitive civil service that was so large that the personnel of nearly entire agencies could have been redesignated as excepted employees. In fact, in the waning days of the Trump Administration, the Office of Management and Budget announced that 88% of their workforce would be eligible for reclassification under Schedule F. President Biden overturned Executive Order 13957. However, should a future president decide to attack the independence and integrity of the competitive civil service, he or she would only need to rescind President Biden’s order and reinstate Schedule F.
To protect the non-partisan federal civil service, Congress should codify protections to prevent federal workers from manipulation by executive branch fiat. On January 13, 2021, Rep. Gerald E. Connolly, Chairman of the Subcommittee on Government Operations, and Rep. Brian Fitzpatrick introduced legislation that would prevent future administrations from manipulating the civil service, and ensuring all federal employees hired in the Competitive Service retain due process protections. This bill, the Preventing a Patronage System Act, limits the future exceptions to the civil service to existing schedules A through E, or new schedules that receive explicit statutory authorization.
MINORITY VIEWS
Committee Republicans oppose H.R. 302. This legislation rashly eliminates the ability of future presidents to improve the efficiency and effectiveness of the civil service by establishing new categories of excepted service positions. This bill is not justified by either recent experience or by the original purposes of the merit-based civil service. On the contrary, experience during the Trump Administration shows that the creation of new excepted service schedules can be critical to ensure civil servants impartially and dutifully serve all presidential administrations. That is the very purpose of the merit-based civil service.
I. THE TRUMP ADMINISTRATION’S EXPERIENCE DEMONSTRATES THE NECESSITY OF PRESERVING PRESIDENTIAL FLEXIBILITY TO ENSURE THE MERIT-BASED CIVIL SERVICE IMPARTIALLY SUPPORTS ANY AND ALL PRESIDENTIAL ADMINISTRATIONS
The U.S. Constitution was written to ensure a government ‘‘of the people, by the people, for the people.’’ Central to that design is the President’s authority to implement the policy mandate he or she receives from the voters in each presidential election.
In our modern American government, the President relies on both his or her political appointees and vast amounts of career civil servants in policy-related roles to bring the voters’ policy mandate to life across large numbers of federal agencies. The President, along with his or her appointees, are to be the decisionmakers, accountable to the voters and Congress. Career civil servants are to provide the President—and his or her administration—with impartial expertise to best inform and construct their ultimate executive policy decisions.
Many, if not most, career civil servants in policy-related roles appear to be faithful employees who deliver that impartial expertise to the benefit of successive presidents of differing parties and, above all, to the American people. Yet, in recent years—and particularly during the Trump Administration—increasing numbers of civil servants in policy-related roles have resisted the policy and political direction of the duly elected President. As Professor Jennifer Nou of the University of Chicago Law School recounts, civil servants during the Trump Administration ‘‘reportedly created support groups to oppose the Trump Administration and signed up for workshops on how to resist.’’ While acknowledging such ‘‘resistance’’ is not necessarily new, she explains that: What seems potentially novel in the Trump Administration is the extent to which that resistance is openly defiant.
Instead of being covert or channeled through official mechanisms, a greater degree of dissent seems to have spilled out into the open by civil servants identified as such. Bureaucrats increasingly seem to be opposing the President in their official capacity. And they are doing so despite strong agency norms to the contrary This is unacceptable in a government that is intended to be responsible to the voters—not the whims or ideological leanings of career civil servants. In opposing a substantially similar version of H.R. 302 which passed the House as an amendment proposed by Rep. Gerry Connolly (D–VA) to H.R. 7900, the Fiscal Year 2023 National Defense Authorization Act, Rep. Jody Hice (R–GA) highlighted this point on behalf of House Republicans in his remarks on the House floor: The bottom line is that the voters elect the President, and then the President nominates administration officials to implement the policy that the voters have elected the President to implement. When career officials resist implementing those mandates, then they are, in effect, resisting the voters. Each presidential election gives a president four years to implement the voters’ policy mandate. Policymaking can be notoriously slow, particularly when pursued through agency rulemaking. If the President is unable to reign in civil-servant defiance through prompt discipline or removal, the President’s term in office could easily be wasted away by the refusal of civil servants in policy-related roles to help implement the voters’ mandate. That would be utterly contrary to America’s system of elective governance.
It is in the excepted service, not the competitive service, that the President and his or her political appointees have access to swifter disciplinary and removal procedures. President Trump thus rightly responded to the problem of insubordinate career employees in policy- making roles when he issued Executive Order 13957, ‘‘Creating Schedule F in the Civil Service.’’ 7 Contrary to Congressional Democrat’s mischaracterization of it, this order did not reestablish a patronage system—far from it. The order did not touch the vast majority of the civil service, nor did it affect the Senior Executive Service. It simply ensured that, through the availability of better disciplinary and removal procedures against insubordinate policyrelated officials, the President could guarantee that civil servants made available to him the professional and technical policy-related expertise they were placed in their positions to give.
The Schedule F executive order made it easier to take action against Schedule F employees, up to and including termination, for performance issues and denied Schedule F employees the ability to appeal disciplinary procedures and firings. That was consistent with the merit-system’s goal of ensuring that any and all presidents have available to them a corps of impartial expert assistants in the career service who will help them to implement their policy mandate.
The Schedule F order’s opponents claim it constituted a return to a 19th-century-style patronage system. However, the order’s terms did not represent that. Rather, the order maintained the merit system while instituting an appropriate defense against the entrenchment of a biased corps of civil-service policy bureaucrats who could easily resist the President’s—and the voters’—will. We must emphasize—the merit-based system was not intended to create a civil service independent of, and unresponsive to, presidential authority. It was intended to create an impartial civil service.
II. H.R. 302 IS UNNECESSARY AND WOULD NEEDLESSLY THWART THE ABILITY OF FUTURE PRESIDENTS TO CREATE NEW SCHEDULES OF EXCEPTED SERVICE POSITIONS WHEN APPROPRIATE
Putting aside the merits of President Trump’s Schedule F order, this bill is no longer needed, represents unnecessary legislating, and it would therefore be irresponsible for the U.S. House to pass it. President Biden rescinded E.O. 13957 immediately upon taking office. Yet the bill not only would ban the reinstitution of President Trump’s Schedule F, it would preclude any future president from instituting any new excepted service schedule. In other words, regardless of what circumstances future duly elected presidents may encounter, and what additions to the excepted service might be needed to meet them, this bill, out of spite for President Trump’s entirely appropriate executive action, would preclude future presidents from exercising their executive prerogatives. We cannot support this reckless legislative overreach and attempt to bind the flexibility of future presidents’ actions to meet our country’s needs.
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