A political scientist, administrative law expert’s view on ‘Schedule F’

Our contemporary non-partisan, professionalized federal civil service has its origins in the Pendleton Civil Service Reform Act of 1883. This law was designed to drastically reform the federal government, top to bottom—ending what had been decades of federal employment characterized by mandatory political loyalty and fundraising for presidents and other top politicians by job-seekers. It had been an unprofessional and openly corrupt system.

The Pendleton Act, still the foundation of our civil service system, mandated that the vast majority of federal jobs and promotions be awarded based on merit. After its passage, only department heads and ultimately a handful of their top personnel could be political appointees. The Act—and the civil service’s protection from political interference—have been strengthened and modernized in the century and a half since.

At times under past administrations—and right now under the current administration—the White House has put pressure on career civil servants to follow the ideological direction of the president, at times counter to the aims and letter of the Pendleton Act. In October, this administration made an especially dramatic further push—issuing an executive order to squeeze current feds out from the merit system into a new job class called “Schedule F.”

Under President Trump’s EO, Schedule F employees would be drawn from reclassified current GS-13, GS-14 and perhaps other allegedly “policymaking” feds. The new class would have no employee or merit systems protections: they would become at-will employees, easily dismissed or demoted. Many labor unions and other federal employee advocacy organizations, predictably, are in an uproar and are suing. Legal and government administration experts are saying the move will be stopped in federal court—whichever presidential candidate prevails in the 2020 election.

Nathan Abse interviews Kenneth Warren, political scientist at Saint Louis University, top expert on the federal civil service, and author of the widely-used Administrative Law in the Political System—regarding the recent EO and the Schedule F plan, and its effects on the morale and employee protections.

Q&A with Kenneth Warren

What is your opinion of Schedule F, the new EO move that would make many thousands—or tens of thousands, or more—of high-ranking feds into at-will employees?

Warren: First of all, no need to panic. This kind of effort to weaken civil service protections has happened before—and it has failed before. The fact is that there is a huge wall of laws in the way of it actually ever happening. You can’t do this by executive order. Historically, there are scores of court cases, testing these laws, and in the end protecting against this kind of stripping down of federal employee protections. This whole thing—what you can do as president on this—has been hammered out in the laws Congress passed and in cases heard over the years.

So you are saying this particular EO is unlikely to be enforceable—or even legal?

Warren: Yes. I’m saying this EO means squat. Those who are in the civil service enter the civil service on the basis of merit. That’s the law. It’s still the law. They are protected by these civil service laws. The president’s executive order here doesn’t mean anything. And I expect that’s what would come of it in court. You have to understand that EO’s in general do not carry much clout under this kind of circumstance. If they did, this kind of thing would be totally disruptive to the civil service. Essentially, if this were implemented it would be to completely undo the original 1883 Pendleton Act, which established the civil service as we know it. It would be also to wipe out all the many laws enacted since then that have expanded and strengthened it. What it would mean, in practice, is we would be going back to the days in the 1800s, when we had political patronage as the rule in the government agencies. It cannot be legally implemented.

So, if the EO will fail in court, why is the White House attempting it? For political gain with a segment of the electorate?

Warren: That’s not clear. But as to whether it plays to a political audience, it’s likely not a winner. Opinion surveys over the years on this and related subjects consistently show the American people, nevermind the civil servants themselves, are not in favor of it. The American people, when polled, are not in favor of letting politics rule government services and agencies, top to bottom.

Given this new EO and pressures in the same direction for years, how is the civil service’s mood?

Warren: Do I really have to answer that? The federal civil service, the majority of it, has been suffering serious morale problems for years now, under this administration. This administration keeps going beyond the law with moves like this EO. The civil service needs this kind of thing to stop. Again, surveys show—those surveying just the civil service itself—greater morale problems during this administration than ever in recent times. For the civil service, I have to say, this adminstration has been a disaster. And this EO is absurd.

Can you elaborate on some of cases you are referring to?

Warren: Sure. Regarding the federal civil service, and its legal protections more generally, if you look at the 1990 Rutan v. Rep. Party of Illinois case, which was the last big case on this issue—the ruling made it clear a government entity is forbidden from [promoting or hiring] low-level public employees based on party loyalty. and this followed the Branti vs. Finkel, prohibiting firing government employees based on their political beliefs. Before that there was Elrod vs. Burns, and many others. All these decisions focus on the legalities that control the hiring and firing of federal employees. The upshot is, you can only intervene directly with the employees at the very top, because they are in public policy making decisions—it’s mostly about your political appointees. But the ones below those, the civil service employees, you cannot mess with them. Rutan was a 5-4 decision, with Scalia dissenting. I wrote about this in my book, Administrative Law in the Political System. In it, he effectively praises the old patronage system. No public administration scholar, nor any majority I’ve ever seen of the American people, would agree with this dissent. The patronage system was riddled with corruption. It was a terrible system. Anyway, I do not think any EO like this Schedule F plan can gain any traction under federal law.

Would they see anything good in what Scalia wrote?

Warren: Well, public administration scholars would agree with the dissenting opinion, in part, in Rutan. In it, there is the recognition that there are some in the civil service who are performing public policy discretionary decisions. But these are still civil service workers, who are protected by the system of law and regulations that exists there. Political scientists look at people down the hierarchy who really make the decisions, sure, and not the political appointees alone, who don’t know nearly as much about how the civil service really works. You have to look to Max Weber, you know, the father of the study of bureaucracy—and he recognized that mid-range bureaucrats often are the ones who really hammer out and make policy.

This White House is saying that bureaucrats sometimes make policy and we need to fire some of them!

Warren: He’s right in principle, in terms of who is making the decisions. But he’s wrong on the law, in terms of being able to just make an EO that he can then go ahead and just remove civil servants—fire them—out from under legally binding civil service protections. That’s the whole purpose of the creation of the civil service system. The purpose is to make those in the civil service appointed and promoted on the basis of merit, and not being subject to the whims of presidents—or Congresses for that matter. You want it to be a professional administrative unit.

Can you give examples of why this is so important to the civil service, and those they serve?

Warren: It’s the purpose of the law. We the people don’t want government doctors and scientists, for example, interfered with for political reasons! EPA scientists, or DOE physicists, or NIH doctors—you just do not want to let politicians, or political hacks appointed by them, to get down deep in there and mess with these people and their work, for political advantage. It puts us all in danger—as many of know and can see, recently.

Can you go deeper into this, in terms of the legal angle?

Warren: Yes. That’s why I brought up the Rutan case. It was a 5 to 4 decision. But with this Supreme Court you don’t know what they will do. Having said that, the things I’ve been saying about the protection of the civil service, these things are solidly in the law. And the court is in general very deferential to Congress and the law. The court is not supposed to make basic law, they make decisions. If it’s a law that’s been passed by Congress and signed by the president, they can’t wholesale undo it—they can’t wholesale undo the civil service laws. Now, of course, in a very real way, courts do make law when they hand down certain major decisions. But they are not generally rolling back this kind of situation, this kind of clear law.

 

Reader comments

Mon, Nov 9, 2020

To commenter "Do not get the idea... " Hey -- Biden should be better than the guy we got now. Can't get worse.

Mon, Nov 9, 2020

Our federal government was able to help create modern life as we know it, things private industry and government built together like the space program. It happened because we kept politics out of our science and out of our government we have to keep doing that. Schedule F is an F for FAIL. This is crazy. Back to 1800s. won't work in a modern country. it's why little developing countries with dictators have to look to our science and our government agencies for answers to real problems. We're becoming like them!

Mon, Nov 9, 2020

Interesting stuff. Schedule F should be rolled back.

Mon, Nov 9, 2020

Do not get the idea that Biden will be any friend to civil servants. His mentor Obama froze salary increases for three years (Biden went along with the decision) since they had to pay back the special interests such as banking, big pharma and the insurance companies. These cuts to salary increases had two major impacts, the civil servants who were currently working and those who were considering retirement. Biden is what you call talk the talk with no walk the walk. Trump and his policies were no better. Just think Carter, Bush Jr, Obama, Clinton and Trump all had it out for civil service and they all collectively damaged the program. Biden will add his own programs to gut the civil service workers benefits and pensions. The retirees are in for a rough time also.

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