The broad discretion afforded to presidents to shape personnel policy poses a threat to the civil service during the Trump administration.
On Jan. 20, 2025, Donald Trump will be sworn in for a second term as president of the United States. As president, he will lead over 2 million civil servants in the implementation of law and policy. Civil servants perform a wide variety of tasks, from developing regulations, to processing Social Security checks, to providing health care for veterans. They are the heart of government. Ostensibly, most of these employees are protected by civil service laws that prevent their removal for political reasons.
The recent election will have significant impacts on personnel policy within the executive branch. During his campaign, President-elect Trump proclaimed, “We need to make it much easier to fire rogue bureaucrats who are deliberately undermining democracy.” He has always viewed civil servants as an obstacle—rather than a partner—in governing. During his first term, Trump took a variety of actions to both ease restrictions on firing civil servants and encourage them to voluntarily depart government service. The actions of the first administration provide insights into the likely path of the second. Credible arguments exist that many of these planned actions are unlawful, and, therefore, legal challenges may delay or overturn Trump’s reforms.
Presidents and Personnel Policy
While most of the attention during a presidential transition is on who the president-elect will appoint to key cabinet positions, the transition also has a notable impact on career staff within the executive branch. Of the 2 million civil servants in the executive branch, most employees serve across multiple presidential administrations. Some will leave during the transition, but most will stay. As of March 2024, the average employee has served the federal government for 11.8 years. The expertise, experience, and institutional knowledge of these employees provides an important source of administrative capacity for federal agencies.
Presidents derive their ability to shape personnel policy from the civil service laws enacted by Congress. Most of these laws are housed in Title 5 of the U.S. Code. Section 2301 grants the president discretion to adopt regulations as “necessary to ensure that personnel management is based on and embodies the merit system principles.” These principles include ensuring that recruitment is based on ability and that employees are “protected against arbitrary action, personal favoritism, or coercion for partisan political purposes.”
Many career employees are classified in the “competitive service,” which requires a merit-based evaluation of each job candidate prior to hiring. Section 3301 allows the president to adopt whatever regulations for hiring that “will best promote the efficiency of” the civil service. Section 3302 allows the president to exempt positions from the competitive service as “conditions of good administration warrant.” These positions form the “excepted service.” As a managerial matter, the ability to exempt positions from the competitive service makes it easier for administrations to circumvent merit-based hiring.
Most career employees—whether in the competitive service or the excepted service—enjoy protections from politically motivated personnel actions and cannot be fired without cause. The Office of Personnel Management (OPM)—the federal government’s human resources department—has authority to promulgate regulations related to the procedures that govern removal, suspension, and demotion. In combination, merit-based hiring and tenure protect the civil service during presidential transitions. Notably, § 7511 exempts employees “whose position has been determined to be of a confidential, policy-determining, policy-making or policy advocating character” from these procedures. Moreover, this category of employees is exempted under § 2302 from the prohibition on certain personnel practices.
The Trump administration will be characterized by active efforts to reduce the size of the federal workforce and exert greater control over its activities. Whether these efforts are actually authorized depends, in part, on the scope of this statutory authority.
Schedule F and Reclassification
One of the most powerful mechanisms that presidents have to shape personnel policy is to reclassify positions under § 3302. Trump’s 2021 executive order creating Schedule F is perhaps the most salient and significant personnel action in over two decades. Schedule F promised to make the hiring and firing of federal employees easier by exempting “positions of a confidential, policy-determining, policy-making, or policy-advocating character” from the competitive service, echoing the language of § 7511’s exemption.
Trump justified Schedule F as necessary for good administration because it would give agencies “additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures.” This flexibility would allow agencies to evaluate whether individuals “display appropriate temperament, acumen, impartiality, and sound judgment” for these positions.
In theory, the reclassification of positions as “confidential, policy-determining, policy-making, or policy advocating” would make it easier for agencies to remove individuals in these positions. The language of Schedule F mirrors § 7511’s exemption, suggesting that agencies would be able to remove Schedule F employees without the standard procedures. Indeed, President Trump’s executive order justified reclassification as providing agencies with “the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation.”
Although Trump couched the order in language about government performance, few doubted that the pretextual reason for creating Schedule F was to make it easier for the president to hire loyal employees and fire disloyal ones. Shortly after Trump issued the order, Ron Sanders—Trump’s appointee to chair the Federal Salary Council—resigned in protest. In his resignation letter, Sanders explained, “[I]t is clear that its stated purpose notwithstanding, the Executive Order is nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process.” Other commentators reached similar conclusions about Trump’s motives. In a 2022 report, the Government Accountability Office warned that a future administration could use Schedule F to “expedite hiring of federal employees committed to advancing the President’s policy agenda, and removing those who were not.”
Trump created Schedule F in October 2020—only three months before he left office. President Biden repealed the order immediately after taking office. Agencies had little time to implement Schedule F before its repeal, and its scope is somewhat uncertain. There is little doubt that Trump will attempt to recreate Schedule F during his second term. As one former Trump administration official stated, “It literally takes five minutes to reissue it.” Despite the president’s broad authority under the civil service laws, the legality of Schedule F is contested.
One of its most controversial aspects relates to its interpretation of “positions of a confidential, policy-determining, policy-making, or policy-advocating character.” The executive order describes these positions using sweeping and amorphous terms to include merely “viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals.” Although it is impossible to estimate precisely the number of positions affected by Schedule F, early estimates placed the total number of employees at around 50,000. Don Moynihan describes this number as “probably a floor rather than a ceiling.” Documents obtained from OPM show that reclassification extended to human resource specialists, administrative assistants, and information technology specialists. Such an expansive interpretation of Schedule F would sweep a large swath of federal employees into the excepted service.
The breadth of this interpretation calls into question whether Schedule F exceeds the intended meaning of § 7511. Nothing in the plain text of § 7511 prohibits its application to career employees. Nevertheless, there is evidence that “positions of a confidential, policy-determining, policy-making, or policy-advocating character” refers exclusively to political appointees. For example, the statute establishing the Department of Homeland Security’s Office of Strategy, Policy, and Plans defines the phrase “political appointee” as “any employee who occupies a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character.” Other enabling statutes use similar language. In adopting the Civil Service Reform Act of 1978, the Report for the House Committee on the Postal Service and Civil Service described these positions as “generally political appointees.” After the Supreme Court’s decision in Loper Bright v. Raimondo—in which the majority held that courts should determine the best meaning of the statute and not defer to the agency’s interpretation—the Trump administration’s ability to depart from this long-standing interpretation is called into question.
Moreover, it is unclear whether involuntarily recategorizing employees would strip them of the protections afforded by the competitive service. While it is true that § 7511 exempts these employees from prohibited personnel practices, civil servants have a due process right to a hearing before they are stripped of tenure protections. OPM’s regulations specify that “an employee who was in the competitive service … at the time … the employee was moved involuntarily to a position in the excepted service; remains in the competitive service for purposes of status and any accrued adverse action protections, while the employee occupies that position.” These regulations are consistent with the U.S. Court of Appeals for the D.C. Circuit precedent holding that civil servants do not lose the protections afforded by the competitive service when they are moved to the excepted service. Given these regulations and case law, Schedule F may not enable the firing of existing employees.
A new final rule adopted during the Biden administration will also delay the adoption of Schedule F. In its final rule, OPM advanced many of the above arguments in defining “employees in confidential, policy-determining, policy-making or policy-advocating positions” to mean noncareer, political appointments. This provision prevents future administrations from reclassifying career staff as policymaking employees. While the Biden administration’s rule stalls the implementation of Schedule F, the Trump administration can repeal the rule through notice-and-comment rulemaking. This could happen relatively quickly. The Biden administration managed to propose and finalize its rule in less than a year. The Trump administration could act just as fast in repealing the rule.
These critiques provide several possible challenges to Schedule F. First, plaintiffs may seek to challenge the Trump administration’s interpretation of “confidential, policy-determining, policy-making, or policy-making” positions as inconsistent with the statute. Second, federal employees may raise constitutional objections under the Due Process Clause. Third and finally, plaintiffs may challenge the repeal of the Biden administration’s rule under State Farm—a key precedent that requires agencies to adequately explain the rationale behind repealing rules adopted by the previous administration.
While a legal challenge to Schedule F is likely, Congress could also introduce legislation to amend the civil service laws. Sen. Tim Kaine (D-Va.) sought to attach the Saving the Civil Service Act to the 2024 National Defense Authorization Act. This bill would severely limit the ability of agencies to move positions from the competitive service to the excepted service. During a Republican Congress, however, the bill is unlikely to pass, and there is no question that Trump would veto any such effort.
While Schedule F has received the greatest attention, it was not the only executive order to reclassify civil servants. Executive Order 13843 established a new Schedule E to exempt newly hired administrative law judges from the competitive service. This order responded, in part, to the Supreme Court’s decision in Lucia v. Securities and Exchange Commission, which deemed administrative law judges “officers of the United States” subject to the Appointments Clause. Separately, Executive Order 13842 placed criminal investigators of the U.S. Marshals Service in Schedule B—a portion of the excepted service that includes occupations for which it is “not practicable” to hold competitive examination. Less expansive reclassifications provide Trump a mechanism to shape the civil service while repeal of the Biden-era rule is pending.
Federal Labor Unions
Another source of authority comes from the ability of presidents and their appointees to negotiate with federal labor unions. Section 7102 provides federal employees “the right to form, join, or assist any labor organization.” As Nicholas Handler demonstrates in a recent article, these labor organizations play an important role in negotiating on behalf of federal employees and constraining the powers of the president.
During his first administration, Trump interfered significantly with the operations of public-sector labor unions. Executive Order 13836 instructed agencies to renegotiate collective bargaining agreements as soon as possible. Using his authority under § 7301 to “prescribe regulations for the conduct of employees in the executive branch,” Trump issued Executive Order 13837, which significantly restricted the ability of union representatives to perform union activities during working hours. Beyond limiting union activities, Trump sought to circumvent protections previously negotiated for unionized employees. Executive Order 13839 instructed agency heads to “endeavor to exclude from the application of any grievance procedures” under a collective bargaining agreement. In several cases, the Trump administration imposed new contracts without collective bargaining.
Most labor policy, however, is set by the Federal Labor Relations Authority (FLRA), which is headed by an independent board with three members appointed by the president. During Trump’s first term, the D.C. Circuit overturned severalpolicies adopted by the FLRA. As one example, the D.C. Circuit thwarted attempts by the FLRA to increase the threshold for when a change of the conditions of employment triggers collective bargaining requirements. Trump will have an opportunity to nominate a member to the FLRA as early as July 2025, giving him a partisan majority on the board.
The Trump administration may also seek to decertify certain unions or exempt certain employees from collective bargaining. One tactic used by the Trump administration was to reclassify employees as “management officials.” Section 7103 defines a “management official” as an individual whose duties are “to formulate, determine, or influence the policies of the agency” and excludes these officials from the right to collectively bargain under § 7102. The Department of Justice sought to decertify the National Association of Immigration Judges on grounds that immigration judges should be classified as “management officials.” A regional director of the FLRA rejected the Department of Justice’s decertification attempt, but the Republican-appointed majority of the Federal Labor Relations Board reversed and found that immigration judges were management officials. The Trump administration may expand this tactic to other occupational groups in its second term.
The Biden administration has sought to strengthen public-sector unions. Many unions renegotiated bargaining agreements that would extend beyond the 2028 election, limiting the ability of the Trump administration to renegotiate these agreements. Unions used this opportunity to negotiate terms that would protect employees from certain actions in future administrations. For example, the Environmental Protection Agency secured a “scientific integrity” provision in its agreement that creates an appeals process for employees retaliated against for pursuing science-based work. The Trump administration will undoubtedly interpret these agreements narrowly. Labor unions may need to engage in active litigation to enforce the terms of these agreements.
The Merit Systems Protection Board
The Merit Systems Protection Board (MSPB) provides due process to federal employees who experience adverse personnel actions, including removal, suspension, and demotion. It has a two-stage appellate process. First, an administrative judge issues a decision on the case. Second, the three-member board of presidential appointees acts as an intermediate appellate body and decides whether to uphold the decision of the administrative judge.
On Jan. 7, 2017, the MSPB lost its quorum and did not regain that quorum until March 2022. Although the Trump administration nominated several members to the MSPB, the Republican Senate voted not to confirm these nominees. Consequently, the MSPB accrued a backlog of over 3,800 cases during the five-year period without a quorum. These included cases brought by employees alleging that they had been retaliated against for whistleblowing.
During the Biden administration, the MSPB adopted an interim final rule that allows the agency to take some actions without a quorum. The rule allows a single-member of the board to approve settlements between agencies and employees and request further development of the record. The terms of the current members expire in 2025, 2028, and 2030. Although the MSPB should be able to operate with a quorum during much of the Trump administration, the new rule provides the board with certain expanded powers if the Senate fails to confirm one of Trump’s nominees by March 2028.
DOGE
President Trump has announced that Elon Musk and Vivek Ramaswamy will lead a new Department of Government Efficiency (DOGE). As a candidate in the 2024 presidential election, Ramaswamy vowed to eliminate 75 percent of the federal workforce. Meanwhile, Musk has spent significant energy on X proposing ways to slim down the government, including “replacing the Fed with a Magic 8-ball.”
Two questions surround DOGE. The first question is: How will DOGE be established, and what degree of regulatory authority will it exercise? The answer to this question is somewhat unclear. Describing DOGE as a “department” is inaccurate. (It seems the name was chosen as a nod to one of Elon Musk’s favorite internet memes.) Trump could establish DOGE as an advisory committee under the Federal Advisory Committee Act (FACA), which imposes certain transparency and reporting requirements on committees established for the purpose “of obtaining advice or recommendations for the President.” Yet Musk and Ramaswamy have distinguished their organization from “government commissions or advisory committees,” saying they will “serve as outside volunteers, not federal officials or employees.” The pair seem to imagine their organization operating outside the reach of the government, and the courts have not extended FACA to every organization that advises the president.
The second question is: What does DOGE intend to accomplish? A recent op-ed by Musk and Ramaswamy in the Wall Street Journal provides some insight. They promise to bring “mass head-count reductions” by working “to identify the minimum number of employees required at an agency for it to perform its constitutionally permissible and statutorily mandated functions.” To aid in this endeavor, they propose that Trump should “use existing laws to give [employees] incentives for early retirement and to make voluntary severance payments to facilitate a graceful exit.” Section 3523 allows agencies to make voluntary separation incentive payments to encourage early retirement and resignation.
Musk and Ramaswamy also endorse a stretched interpretation of the president’s authority under § 3301, saying that it enables the president to engage in “large-scale firings” and to relocate federal agencies out of the Washington area. Yet § 3301 is generally thought to regulate only the criteria of admission into the competitive service. They also propose reducing telework arrangements to trigger “a wave of voluntary terminations.” Although the Biden administration has tried to force employees to return to the office, labor unions have fought these efforts. While a reduction in telework may result in some resignations, more than 60 percent of telework-eligible federal employees already work in the office.
Regardless of whether DOGE is established under FACA or merely exists as a private entity, it will lack regulatory power to implement its proposals. Instead, Musk and Ramaswamy will require cooperation from the executive branch’s main administrators: OPM, the Office of Management and Budget (OMB), and the General Services Administration. Russell Vought, Trump’s nominee to serve as OMB director, has promised to work with Musk and Ramaswamy.
Morale and Relocation
Not every effort to shape personnel policy comes through civil service laws. During his first term, the Trump administration managed to secure reductions in force by diminishing morale within agencies. Trump’s hostility toward scientists encouraged the departure of over 600 employees in the Environmental Protection Agency, 150 employees in the U.S. Geological Survey, and 231 employees at the Fish and Wildlife Service. Top officials at the State Department shut career employees out of decision-making. Even though the transition will not happen until January, federal employees are already reporting low morale. While some employees have adopted a policy of “wait and see,” others are planning to leave early to escape what they call a “new dystopian hellscape.”
In some agencies, the Trump administration accomplished a reduction in force by moving the agency’s headquarters. For example, the Trump administration ordered the Bureau of Land Management to move its headquarters to Grand Junction, Colorado. Less than half of the employees agreed to accept mandatory reassignment. Although the Biden administration reversed the decision, the decision had a lasting impact on the agency’s workforce. Following the relocation, the agency saw a 34 percent decrease in the number of employees with at least 25 years of experience. The move also had a significant impact on the agency’s diversity. While about 20 percent of the headquarters’ workforce was Black, more than half of those employees quit during the relocation.
The Bureau of Land Management was not the only agency subject to mandatory relocation. The Trump administration also relocated the Economic Research Service and the National Institute of Food and Agriculture to Kansas City. These agencies suffered a similar loss in talent following the relocation. The administration celebrated these losses. OMB Director Mick Mulvaney told an audience, “Now, it’s nearly impossible to fire a federal worker. … But simply saying to the people, you know what, we’re going to take you outside the bubble, outside the Beltway, outside this liberal haven and move you into the real part of the country, and they quit. What a wonderful way to streamline government and do what we haven’t been able to do for a long time.” In the case of the Department of Agriculture, these relocations occurred despite their illegality. According to the Office of the Inspector General, the Trump administration ignored express language in the Consolidated Appropriations Act of 2018 that prohibited the Department of Agriculture from using funds to relocate its offices.
During Trump’s second term, the administration will continue to use soft power to force resignations. In a campaign video, Trump said, “As many as 100,000 government positions can be moved out—and I mean immediately out—of Washington to places filled with patriots who love America.” The Federal Circuit has long upheld that agencies have the authority to remove employees who refuse to relocate so long as the decision was based on a “legitimate management consideration.” Litigation is likely to center around whether these actions are legitimate or pretextual efforts to permit removal.
Rhetoric attacking civil servants and unstable personnel policy make it difficult for agencies to recruit new employees. In many cases, this is consistent with the Trump administration’s desire to shrink government. In other cases, it may pose a problem for Trump’s vision. For example, Trump has promised to hire 10,000 new Border Patrol agents. Despite congressional authorization to increase the hiring of agents, the number of job applicants has generally decreased since 2018 while the agency’s rate of attrition has increased. Morale is a significant problem. Since 2005, Customs and Border Protection has scored in the lowest quartile on government surveys that measure employee satisfaction.
Overall, the Trump administration has significant plans and authority to reshape personnel policy. These actions will not go unchallenged, but at least some of them will prove lawful. Even where the law prohibits particular actions, history suggests that Trump will proceed anyway and wait for the courts to overturn his actions. Of course, attacks on the civil service come at some expense. As I have detailed elsewhere, presidents need expert and experienced employees to create policy—even if that policy is deregulatory in nature. Efforts to remove federal employees may limit the ability of the Trump administration to roll back regulations promulgated by the Biden administration. Perhaps, however, President-elect Trump has determined that a permanent reduction in the administrative capacity of the federal workforce is a sufficient substitute for deregulation.
– Nicholas Bednar is an associate professor of law at the University of Minnesota Law School. He writes in the areas of executive politics, administrative law, and immigration. Published courtesy of Lawfare.
