New Schedule F guidance shows the Trump White House is rearing for a fight
Trump administration officials elected to bypass the regulatory process to rescind Biden-era rules aimed at barring Schedule F’s revival, setting up a bigger fight over the president's authority.
The Office of Personnel Management on Monday issued guidance to agency heads on how to implement Schedule F—now renamed Schedule Policy/Career—setting up a 90-day deadline for initial agency filings and a potentially massive legal battle over the president’s authority over the executive branch.
When President Trump signed an executive order last week reestablishing the controversial plan to strip tens of thousands of federal workers in “policy-related” positions of their civil service protections, it was unclear how the new administration would unwind Biden-era regulations aimed at blocking the policy’s revival, though most experts agreed that officials would need either to issue a notice of proposed rulemaking or an interim final rule.
But according to Acting OPM Director Charles Ezell's memo to agency heads, the administration is claiming that the president has the constitutional authority to unilaterally rescind regulations governing federal personnel issues.
“In [the executive order], President Trump used his authority under the Constitution and [Title 5 of the U.S. Code] to directly nullify these regulations,” Ezell wrote. “Section 4 of [the order] provides that, until OPM effectuates their formal rescission ‘[these regulations] shall be held inoperative and without effect.’ This presidential directive immediately superseded OPM regulations issued using delegated presidential authority.”
As such, agencies may immediately begin the work of compiling lists of “policy-related” jobs, and OPM has set an initial deadline of April 20 for agencies to submit initial petitions to reclassify workers outside of the competitive service. The guidance also indicated that a second executive order will be published later this spring to “effectuate the transfers.”
In a section of the memo entitled “Patronage Remains Prohibited,” OPM apparently sought to respond to criticism that Schedule F amounts to the politicization of the civil service and a return to the 19th century spoils system, highlighting new additions to the current iteration of the executive order stipulating that federal workers cannot be removed for failure to support a particular political party or president.
“Section 6(b) [of the executive order] clarifies what is expected of career employees in or applicants for Schedule Policy/Career positions,” the memo states. “They are not required to personally or politically support the current president or the policies of the current administration. They are required to faithfully implement administration policies to the best of their ability. Failure to do so will be grounds for dismissal.”
Don Kettl, professor emeritus at the University of Maryland and former dean of its School of Public Policy, said the new language still marks a fundamental change for federal workers.
"It’s even more fundamental than that—it’s not about the use of the federal civil service to employ our friends,” Kettl said. “It says the responsibility of people in the executive branch is to do what the president says, as he decides it should be done, and anyone who doesn't is subject to firing . . . It’s a flat-out assertion of presidential authority under Article II [of the Constitution] that I’ve never seen put quite so broadly.”
The administration’s decision to seek to nullify then-President Biden’s regulations to insulate the civil service from Schedule F, rather than simply unwind it through the traditional rulemaking process, indicates that the White House relishes a fight in court over the issue.
“They had an easy way and a hard way to do this,” he said. “The easy way would have been the issuance of an interim final rule doing all of this stuff immediately but still abiding the process through the Administrative Procedure Act. They chose the harder way, I believe because they want to make that clear assertion—separate from the APA issues and everything else—about the president’s fundamental power, and challenge everyone who disagrees with them to battle them in court.”
Kettl said that if the courts ultimately agree with Trump, the president could theoretically unwind all manner of rules and regulations by fiat.
“Once you begin with the argument that the president has the power to do what the president wants, and once you assert it to nullify existing regulations, that could be read very, very broadly,” he said. “The question now becomes: where else might they challenge this? Do they want to challenge [regulations] in more places and just have it out with everyone? Or will they pick their targets, establish precedent, and then broaden it out from there?”