Trump’s Enemies List: Dismantling the Civil Service
If elected, Donald Trump pledges to bring a reign of “retribution” on the federal government in his crusade against what he calls “The Deep State.” He will likely pick up where he left off – going after the federal merit system founded more than 140 years ago.
In one of his last acts when in office, outgoing President Trump issued an Executive Order creating a new civil service classification (called “Schedule F”) for any federal employee occupying policy-determining, policymaking, and policy-advocating positions.
Schedule F employees could be terminated at-will. While President Biden rescinded Trump’s EO almost immediately, during the few days it was in effect, one key agency, the Office of Management and Budget, had already reclassified 68% of its entire workforce as Schedule F.
Although the Office of Personnel Management (OPM) finished promulgating a new rule this April to counter any renewed Schedule F attempt, this would prove to be a speed bump in a second Trump term where its repeal could be quickly finalized.
In the meantime, a re-elected President Trump would have other tools at his disposal, including one arising from OPM’s own neglect of duty: the unlimited power to place civil servants on administrative leave – suspension with pay – for any reason and for an indeterminate length of time.
Back in 2016, Congress outlawed routine reliance on involuntary leaves that “exceeded reasonable use,” citing cases (including some PEER clients) where employees were paid to stay home for extraordinarily long periods, when it passed the Administrative Leave Act. It directed OPM to impose tight limits on both administrative and investigative leave. But now, more than eight years later, that law remains a dead letter because OPM never got around to finalizing the implementing regulations.
Last fall, when PEER put OPM on legal notice that we would sue if it continued to delay, the agency pledged to have final regulations by “spring 2024.” But spring came and went. OPM now indicates it does not know when it will be finished. So, PEER sued OPM last week seeking a court order directing it to finalize regulations curbing excessive suspensions of civil servants within 60 days.
Even more sobering is the fact that OPM’s regulations once finalized are not the final word. Each agency must then incorporate OPM’s regulations into their own rules to have any effect.
One reason for our concern is that a right-wing outfit called the American Accountability Foundation, armed with a $100,000 grant from the Heritage Foundation, has announced its plan to identify 100 government workers as members of the Deep State who might stand in the way of a second-term Trump agenda. This group says it will post these names on a website this summer so that a new Trump administration can begin purging them on Day One.
As it stands, employees placed on leave have no ability to appeal or the right to learn the reason for the involuntary suspension, which is not even classified as an adverse personnel action under current civil service rules.
At PEER, we have seen whistleblowers or employees who deliver inconvenient truths placed into limbo in hopes that they will simply resign. Besides removing potentially troublesome specialists, exiling dissidents into a bureaucratic limbo via involuntary leave sends a powerful message to their colleagues that they better toe the line.
Until now we have only seen administrative and investigative leave used to target one or two individuals at a time. But, as the mass transfer of Interior Department senior executives showed, Trump would not hesitate to expand an abusive practice from a retail to a wholesale basis.
In the meantime, we will continue to litigate and advocate for completing the Congressionally-mandated reform of involuntary administrative and investigative leave before the next inauguration – regardless of who is sworn in.
Peter Jenkins is PEER’s senior counsel.
