Civil Service
What is “Good Administration”?
Trump’s Executive Order is Facing Skepticism and Legal Challenge
On October 21, Trump signed Executive Order 13957, creating a new category (Schedule F) in the excepted service — the classification of employees who are exempted from civil service protections. The order authorizes the Office of Personnel Services (OPM) to reclassify positions that are “confidential, policy-determining, policy-making, or policy-advocating,” with preliminary review and recommendations due on or before January 19, 2021. Reclassification strips away competitive hiring process for filling such positions and means such employees may be fired by the president, or an agency supervisor at will, setting the stage for a second-term purge of the administrative state should Trump win re-election.
Trump’s latest order is predicated on the statutory authority granted to the president under the Civil Service Reform Act (5 U.S.C. §3302(1)) to make necessary exceptions to civil service protections as the conditions of “good administration” may warrant. But what is “good administration” and does Trump’s directive exceed his statutory authorization?
Ostensibly, the directive is aimed at improving administrative performance through greater hiring flexibility so as to ensure that “employees in such positions… display appropriate temperament, acumen, impartiality, and sound judgment” (EO 13957 §1). As importantly, it grants agency supervisors the ability to remove “poorly performing” employees without “extensive delays or litigation.” Substandard performance, the order maintains, “has resulted in long delays and substandard-quality work for important agency projects, such as drafting and issuing regulations.”
But for critics, Trump’s latest order is a direct assault on the administrative state that would allow the president (or agency directors) to purge agency experts who are insufficiently loyal to the president’s policies and agenda. In other words, it converts a wide swath of protected career positions into political appointments, simultaneously exempting them from the job protection and anti-retaliatory measures of the Whistleblower Protection Act (5 U.S.C. §2303 (2)(B)).
Challenging Trump’s Directive
Democratic lawmakers have introduced legislation, the Saving the Civil Service Act, to nullify the order that, without the support of the Senate and in the face of a certain veto, is purely symbolic. A lawsuit filed by the National Treasury Employees Union (NTEU) will put this before the courts, assuming Joe Biden does not win the election and rescind the order.
There are 3 potential and inter-related grounds on which Trump’s order may be legally challenged:
First, as the NTEU has asserted, the courts may find that the order exceeded statutory authority ultra vires — that is, the directive undermines the foundation of the competitive and protected civil service as designed by Congress, usurping congressional intent and authority. Indeed, the structure of a merit-based system created by the Pendleton Act of 1883 relies on a presumption of protection as is indicated by its creation of limited excepted categories (the original schedule A and B). The Civil Service Reform Act of 1978 reaffirmed that Congress intended a default of competitive hiring and employment protections for most administration positions.
Second, the order may be challenged as lacking adequate justification for why the exception is necessary to promotion of good administration, as opposed to simply being a good or desirable idea. Presidents, in other words, do not have unfettered authority under §3302, but must demonstrate why the exception is necessary. In Directing the Whirlwind: The Trump Presidency and the Deconstruction of the Administrative State, we address the Trump Administration’s poor track record before the courts and its high rate of deregulatory efforts invalidated for failure to comply with the APA. The justification outlined in the order blames theses failures on the ineptitude of careerists, equating greater political control with efficiency. But efficiency relates to more than speed. As the provisions of the APA mandate, the processes of regulatory change must also achieve the aims of rationality, fairness, consistency, and transparency.
Moreover, existing Schedule C (created in 1956) already allows, on a case-by-case basis, exception for political appointments of a confidential or policy-determining relationship to their supervisor and agency head,” although the authority to fill a Schedule C job is revoked when the incumbent leaves, requiring OPM approval to establish or reestablish the position. EO 13957, distinguishes Schedule F to include policy-making positions that are “not normally subject to change as a result of a Presidential transition,” broadening the exception and potentially hindering a new administration by allowing Trump to transform key positions prior to January 19.
There is sparse history and precedence to assist in determining what constitutes a necessary exception as warranted for the conditions of good administration. The current category D of the excepted service (added in 2012) was narrower, aimed at the hiring of recent graduates through various Pathway Programs (the Internship Program, Presidential Management Fellows and the Recent Graduates Program). By contrast, Trump’s creation of Schedule E (in 2019) reclassifying non-adjudicative administrative law judges as excepted category, together with this new Schedule F, may be viewed as part of a larger agenda to “deconstruct the administrative state,” allowing Trump to make good on his promise to “take on this bureaucracy and restore power to the people by draining the swamp.”
Finally, while the case of Franklin v. Massachusetts (1992), holds that presidential orders themselves are not subject to the Administrative Procedure Act of 1946 (APA), the OPM’s implementation of Trump’s directive through any change to existing rules, or execution of a final agency action, arguable must follow the APA. The guidelines that the OPM has created for agency heads undertaking reclassification review are “not determinative,” but require written explanation before the OPM grants final approval.
Judicial evaluation of any legal challenge will boil down to the question of whether the president has, or ought to have, unfettered discretion over the administrative state or whether he is constrained by the limits of the authority conferred upon him under congressional statutes. Should Trump win a second term and put the order into effect, he has an advantage in the increasingly conservative judiciary that is highly deferential to executive power and sympathetic to directive control over the bureaucracy.
The clear and present danger for good administration, at the very least, and functional democratic government writ large, is a government, not of neutral competence or even responsive competence, but of personal loyalty regardless of competence. In an administration constituted thusly there would be no Anthony Fauci speaking out against public health policies that are generated by political consideration, only more “advisers” who hold their positions solely by dint of their loyalty to the President as opposed to policies motivated by science and public health concerns. This is the very danger we allude to in the conclusion to Directing the Whirlwind.
Lisa K. Parshall is Professor of Political Science at Daemen College in Amherst, New York. She is the president of the Northeastern Political Science Association and the author of Reforming the Presidential Nominating Process: Front-Loading’s Consequences and the National Primary Solution.
Jim Twombly is Professor of Political Science at Elmira College in Elmira, New York. He is the vice president of the New York State Political Science Association and the author of The Progression of the American Presidency and American Pop Culture: Sex, Power, and Cover-ups.
