Bloomberg News
President Trump signed a pair of executive orders late Monday that would strengthen the White House’s power to dismiss federal civil servants, including so-called Senior Executive Service members at the top of the civil service hierarchy.
The National Treasury Employees Union — a labor union representing some 150,000 federal employees across 37 agencies — responded with a lawsuit against the administration, arguing that the order deprives many of their members of their due process rights and is contrary to Congressional intent.
The first of Trump’s executive orders reinstates EO 13957, which Trump issued in October 2020 in the waning days of his first term. That order would recategorize federal employees with “confidential, policy-determining, policy-making, or policy-advocating positions” as Schedule F employees, though in Monday’s executive order that category was renamed “Schedule Policy/Career.”
Schedule Policy/Career employees would carve out an exception to the competitive hiring rules and employment protections for federal employees whose jobs involve crafting policy, effectively making them at-will employees and fireable by the President or his delegated subordinates.
“Article II of the United States Constitution vests the President with the sole and exclusive authority over the executive branch, including the authority to manage the Federal workforce to ensure effective execution of Federal law,” the executive order reads. “In recent years, however, there have been numerous and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership.”
The order states that employees “are not required to personally or politically support the current President or the policies of the current administration” but are required “to faithfully implement administration policies to the best of their ability” and that “failure to do so is grounds for dismissal.”
The second executive order issued late Monday similarly would recategorize Senior Executive Service, or SES, federal employees as serving at the pleasure of the president, effectively rendering them at-will employees. SES employees are the highest level of the General Schedule federal employee categories. The SES order also directs politically appointed heads of federal agencies to “reassign” SES members in their departments “to ensure their knowledge, skills, abilities, and mission assignments are optimally aligned to implement my agenda.”
The National Treasury Employees Union filed suit against the White House over the orders late Monday, arguing that the employment protections established by Congress for the federal civil service confer due process rights that the President is not entitled to rescind on his own. Furthermore, courts have determined that federal employees hired under the competitive civil service regime have been given reasonable assurances of continued employment — assurances that amount to a property interest protected by the constitution.
“Presidents can only [exempt] employees or positions from the competitive service if necessary and when warranted by conditions of good administration,” the lawsuit said. “The Executive Order provides no details, data, or explanation for why it is necessary. The Order similarly fails to provide details, data or explanation why conditions of good administration warrant changes to hiring or adverse action procedures. It asserts only unsupported generalities such as, ‘[p]rinciples of good administration … necessitate action.'”
The NTEU lawsuit likewise acknowledges that the Office of Personnel Management is empowered to recategorize employees as exempted from the competitive service rules, but must follow a process for doing so. That process includes obtaining a determination from agency Chief Human Capital Officers that recategorizing an employee is “consistent with merit system principles,” serving advance notice to affected employees of the recategorization and stating that those employees maintain “accrued civil service protections.” The executive order therefore directs OPM to break its own rules, the lawsuit says.
“Given the Executive Orders improper definition of policymaking, policy-advocating or policy-determining, its sweep is overbroad,” The NTEU lawsuit said. “On behalf of these affected employees, NTEU must also combat the Orders purported stripping of NTEU members accrued civil service and due process protections.”
The modern civil service protections emerged in the late 19th century as a response to the “spoils system” that had prevailed up to that point, whereby each incoming president would remove substantially the entire federal workforce and replace them with individuals of their own party. That arrangement had the dual drawbacks of making federal employees more loyal to their party than their appointed tasks on the one hand and requiring the president to personally see to hundreds of appointments upon taking office.
The passage of the Pendleton Act of 1883 required holders of many federal jobs to obtain their employment through a competitive civil service examination — thus ensuring their competence — and also conferred upon them protections from politically motivated termination, which meant that government would continue to function from one administration to another.
