Schedule F Can’t Be Beaten in the Courts
Trump’s plan for civil service reform may be unwise and unethical but it is not unconstitutional.
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If Donald Trump wins the presidency, it’s no secret that an epic battle about the civil service will erupt. It will set up the biggest conflicts about its role since the system was created 140 years ago and, one way or another, it will redefine the way the system works. At the core of the conflict is the Schedule F-plan to make it easier to fire members of the classified service who aren’t loyal to the new administration—and to hire political loyalists to replace them.
Nor is it a secret that forces opposed to Schedule F are readying a plan to have it out in the courts. But they have a big problem on their hands. Schedule F might be unwise (because it fails to ensure that the government gets the expertise it needs to deliver value to taxpayers). It might be unethical (because it throws open the door to a shutdown of transparency to hide dangerous political pressures on the public service). It might be unworkable (because no administration in recent memory has filled all of its 4,000 current political appointees, let alone the 50,000 civil service positions that Schedule F supporters say could be converted to Schedule F political appointments). The measure’s opponents are pinning their biggest hopes on the argument that Schedule F would be unconstitutional. Bury it in the courts and Schedule F would be no more.
But they are going to be disappointed, because Schedule F is constitutional. If opponents want to stop it, they’re going to need to look for tools elsewhere. Moreover, they shouldn’t count on blocking it through a Kamala Harris victory. The Schedule F forces are preparing for a long battle. As one of its key proponents told me, “I do think, long-term (and possibly short-term), my side is going to ‘win’ on these issues.”
So those fighting to stop Schedule F have a two-edged fight on their hands. They are up against a well-financed foe determined to strip tens of thousands of federal administrators of their civil service protections. And they’re counting on a tool—a quick-hit judicial challenge—that isn’t going to work.
Here’s why.
Existing law gives the president the power to modify the current system—including by creating new schedules
Back in October 2020, the Trump administration issued an executive order to create a new Schedule F in the federal workforce, which would be “an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character.” The order made it possible to move federal employees out of their protected civil service positions into this new schedule, where they could be fired at will—and where the usual civil service rules for hiring wouldn’t apply. As a result, employees could be shown the door if they didn’t follow an administration’s will (or for any other reason as well, apart from blatant discrimination). Replacements could be brought in without any standard for determining their competence.
Critics howled and vowed to challenge the new schedule on constitutional grounds. However, in issuing the order, the Trump administration pointed to existing law, 5 USC 3301, for justification. Now, for those of you who don’t have a dog-eared copy of Part 5 of the U.S. Code by your bedside, it says that the president may “prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service.”
And then, as the Trump executive order points out, 5 USC 3302 states, “The President may prescribe rules governing the competitive service,” including “necessary exceptions of positions from the competitive service.”
So a challenge to Schedule F on the grounds that the president doesn’t have the power to pull federal workers out of their civil service protections and put them into at-will positions wouldn’t last a second in court.
The Biden regulation blocking Schedule F stands on a slippery rug
The court challenge to Schedule F is all hypothetical, of course. On taking office in 2021, Biden issued an executive order revoking Schedule F. Then, in April 2024, the administration issued a final rule creating strong protections for civil servants and underlining the importance of merit system principles. That created a firewall against any effort a future administration might attempt to reinstate a Schedule F-style policy.
Of course, what the Federal Register giveth, it can also taketh away. A new administration couldn’t simply issue an executive order to wipe out the Biden regulation, but it could start the process to put its own regulation in place to remove the Biden version. That process would take months, with the publication of a proposed rule, a comment period, and then the issuance of the final rule. The Biden administration issued the proposed rule in October 2023. The final rule followed, with an effective date in May 2024, eight months later.
A new administration could decide that process was just fine, because it would give its personnel office time to get the new administration’s team in place. But a new administration could also issue an interim final rule, skipping the process of publishing a proposed rule and allowing public input. That would allow the new administration to make the new regulation effective immediately.
So the Biden rule is on a slippery rug, which could easily be pulled out from underneath it. The process that created the Biden rule also produced a lot of evidence in its favor, but a new administration could quickly build a counter-case in issuing its own regulation.
A legal challenge to a new regulation would surely be fought in the courts, but a resolution would take years
Such a move would ignite a furor from good government groups, many members of the interested public, and public employee unions. Their instinct would be to challenge the new regulation immediately in court, but that probably wouldn’t be possible. The courts, and especially the U.S. Supreme Court, have gotten increasingly fussy about the standing of plaintiffs. A challenge to a new regulation would have to demonstrate that the plaintiff was damaged by the rule.
That means a challenge on the grounds that the regulation is bad policy would probably not get any traction. Instead, those interested in challenging a reinstatement of the Schedule F policy would probably need to wait until a federal employee—or perhaps a group of federal employees—was dismissed; that the dismissal was for reasons that violated the employee’s rights under the Constitution and the law; and that the damages were sufficiently big as to indicate that the regulation was unconstitutional.
All of that would inevitably take a great deal of time. An interim final regulation might be issued in, say, March 2025. There might be dismissals by April. Those groups interested in challenging the regulation would want to identify just the right plaintiff with what they believe is the strongest case. The groups would also want to find the federal circuit where they thought they had the best chance of success and file the case there. Hearing the case might well take some time—the administration would want to drag it out. No matter who wins in the first federal district court case, the loser will certainly appeal. That would take it to the circuit court and, again, the loser is sure to appeal to the U.S. Supreme Court. This would probably take a year.
The Supreme Court would likely take up the case—at this point the appeals process would have gone on for a year—and it would schedule oral arguments for the fall of 2026. Its decision, following recent practice in controversial cases, would probably come down in June of 2027, more than two years after the individual was fired.
By this point, the administration would have had two years to launch its Schedule F-style policy and get it ingrained into federal agencies. It’s impossible to guess, of course, just how many federal officials might have been fired in the meantime—and how many new political loyalists would have been hired. As the case worked its way through the judicial process, however, irreparable changes would have occurred in the long tradition of the federal merit system process.
The odds of winning a legal challenge are low
Finally, when such a case reached the U.S. Supreme Court, the odds of victory for those opposed to Schedule F-style policy would be low. Those proposing Schedule F-style policies have been arguing that the Constitution gives the president substantial power, including a broader power to dismiss federal employees than the civil service system recognizes.
In the first Congress in 1789, James Madison, an elected representative from Virginia, argued:
I conceive that if any power whatsoever is in its nature executive it is the power of appointing, overseeing, and controlling those who execute the laws. If the constitution had not qualified the power of the president in appointing to office, by associating the senate with him in that business, would it not be clear that he would have the right by virtue of his executive power to make such appointment? Should we be authorised, in defiance of that clause in the constitution—“The executive power shall be vested in a president,” to unite the senate with the president in the appointment to office? I conceive not.”
He continued:
If the president should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community.
Now, my reading of this important congressional debate is that Madison was speaking about the removal of top officials (like ambassadors) requiring Senate confirmation. That interpretation is clear in reading the broader context of the debate. But the Schedule F-proponents contend that Madison—the father of the Constitution and the author of the separation-of-powers principle—was in fact making their case for them.
It is tempting for opponents to Schedule F to look toward the judicial system for a remedy, since a new president might very well try to reimpose the policy and a deeply divided Congress might not be able to do anything, one way or another, about it.
But that’s a dangerous road for opponents. Any judicial contest of Schedule F policy would unquestionably take a great deal of time. A Supreme Court fishing in the waters of originalism might find a catch that would support the Schedule F policy. In the end, the odds are high that the opponents would lose.
If there is to be a concerted opposition to Schedule F, therefore, it needs to focus on the here-and-now, and to consider what steps are necessary to create a good government that serves the American people. The Schedule F policy is devoid of any attention to results. That’s the place for opponents to begin: what would it take in the 21st century to build a government with the capacity to deliver the results that give the people the government that they want and need.
Donald F. Kettl is Professor Emeritus and Former Dean of the University of Maryland School of Public Policy. He is the author, with William D. Eggers, of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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Okay, we can all agree that the "Civil Service" should be a meritocratic hierarchy, but as was not explained in a previous article on this subject, and again not explained in this article is why these bureaucratic civil servants, not only in America but also in most Western democracies, are heavily staffed by those with leftist ideology? Is this just a myth or is it a fact? There is evidence that those who worked in the civil service when Trump was President, were encouraged by those opposed to the Republican administration, to actively take steps to styme the orders of Trump when he was the POTUS. The fact that Republicans believe this to be so, points to the reality to the type of person drawn to and selected for these positions in the civil service and going so far as to be termed the "Blob" in the UK and is part of the "Swamp" in America both of which are staffed, in the main by those with Leftist political ideology.