Swamp Draining: Here Comes Schedule F?

Until now, we have not heard much about Donald Trump's "drain the swamp" project. In his first term, Trump had promised to get rid of politicized bureaucrats, but got stymied by the Russia-collusion hoax and then the loss of control of Congress, followed by the pandemic. 

During his preparations for his second non-consecutive term, Trump had narrowed his focus on the "swamp" to a subset of approximately 50,000 federal employees with real policy-making power. Those employees also had civil-service protections, however, making their dismissal for anything other than cause nearly impossible. In his first term, Trump had ordered those positions to be redefined as Schedule F employees to reclassify them as at-will workers, allowing for their dismissal in areas where they refused to carry out the policies of the administration. Trump didn't have time to follow through on the October 2020 EO, though, and Joe Biden rescinded the order when Trump left office. 

Shortly after returning to office, Trump issued another Schedule F EO. Now, almost a year to the day later, the Wall Street Journal reports that the White House is ready to make use of it to gain control of the entire policy-making apparatus:

The U.S. Office of Personnel Management, which oversees the federal workforce, is set to issue a final rule on Thursday that creates a category of worker for high-ranking career employees whose work focuses on executing the administration’s policies. Workers who fall into that category would no longer be subject to rules that for decades have set a high bar for firing federal employees.

While political appointees at agencies are considered at-will employees who serve at the discretion of the president, career employees have long enjoyed strong job protections, including the ability to appeal firings, suspensions or disciplinary action to an independent board. Workers that fall under the new category wouldn’t be able to appeal to the board.

The change is part of a far-reaching effort by the administration to overhaul federal agencies and reduce the size of the government’s workforce. Senior political appointees, spurred on by President Trump’s longstanding contention that a “deep state” is undermining his agenda, have shut down government programs, fired thousands of employees and offered others voluntary separation agreements.

Office of Personnel Management officials said the rule is aimed in part at disciplining federal workers who stand in the way of Trump’s policies. OPM said the new category applies to senior positions that are policy-determining, policymaking or policy-advocating in nature.

Interestingly, the WSJ never mentions the Schedule F EO as the basis of this action. That's clearly the genesis of it, however, and OPM has been quietly working on it as a rule for the past year. The final issuance of this rule will force the reclassification of these senior, supposedly "career" positions that nonetheless formulate and implement policy – until now with independence from the elected president. 

This plan can hardly come as a surprise. Axios called it a "secret" plan in July 2022, despite Trump's last-minute attempt to kick-start it in his first term. At the time, it was not yet clear that Trump would run again, a decision he made formally after that year's midterms. As I wrote when Axios reported it:

An initial estimate by the Trump official who came up with Schedule F found it could apply to as many as 50,000 federal workers — a fraction of a workforce of more than 2 million, but a segment with a profound role in shaping American life.

Regardless of whether one wants to see Trump return in 2024, this is a very big problem in a self-governing republic. Tens of thousands of federal bureaucrats — comprising only 2% of the overall federal workforce, mind you — play a “profound role in shaping American life” but don’t effectively answer to the officials elected by American voters? Any government official with a “profound role” in governing Americans should fall outside of civil-service protections and serve at the pleasure of elected officials. The other 98% of federal employees can keep their civil-service protections.

The big question isn’t whether this is Trump’s plan. It’s why it shouldn’t be every Republican candidate’s plan going into the 2024 election cycle. The Wilsonian model of governance by elite “experts” has been thoroughly discredited over the past century, and perhaps especially after the catastrophic leadership of the expert class through the pandemic. It’s time to get back to direct self-governance through elected legislatures and executives instead. Schedule F looks like a very good way to get that movement rolling.

Call this a "targeted drain," if you will. Its rational and measured approach will stand it in good stead when the inevitable court challenges come as well. Unlike the mass layoffs that Russ Vought attempted during the Schumer Shutdown, some of which snarled necessary operations in the executive branch, this narrowly focuses only on those federal employees with actual authority to interpret and implement policy. Those are expressly political functions and rely on the executive authority granted to the president under Article II of the US Constitution. Those positions shouldn't have been covered by civil-service protections in the first place. 

Once the rule is in place, though, it gets complicated even without the inevitable court challenge. Trump's teams in both terms have not exactly moved with alacrity to fill open slots within the existing subset of federal workers, about 4,000 are now presidential appointments. How quickly will Cabinet officials be able to identify, remove, and then replace 50,000 senior positions within the bureaucracy with reliable appointees committed to Trump's policies? Or is Trump and his team counting on the change to at-will employment being enough of an incentive for most of them to play ball with the elected president's policies?

That may be a problem down the road, but ... it will be a very good problem to have. And it certainly will be an improvement.

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