How Trump is stretching laws to make the federal government more political
"The White House is exploiting, and sometimes outright ignoring, the arcane laws, rules and regulations that have long protected the civil service of 2.3 million from a political takeover.
With a blizzard of executive orders, President Donald Trump has jump-started an extraordinary plan to transform the federal government into a leaner operation packed with his loyalists.
The fine print of those directives reveals how shrewdly the new administration is maneuvering — and sometimes outright ignoring — the arcane laws, rules and regulations that have long protected the civil service of 2.3 million from a political takeover.
Trump has skirted Biden-era rules by essentially declaring them unlawful, used probationary periods to place masses of civil servants in limbo and issued a memo lifting restrictions on hiring temporary political appointees to replace thousands of career employees. The White House has even declared that Trump can overrule a post-Watergate law to summarily fire senior executives and career prosecutors, citing a sweeping claim of executive authority.
Late Friday, when Trump ousted 17 federal watchdogs, he disregarded a statute requiring him to first provide 30 days’ notice and a performance-related justification to Congress.
White House directives also have instructed federal agencies to seek ways to bring employees back to the office even if union contracts guarantee work-from-home protections and announced plans to reinstate assessments for hiring that were thrown out by the Carter administration after lawsuits claimed they were discriminatory. And acting personnel officials have widely expanded the use of paid leave to push workers out — despite a bipartisan law seeking to curtail its use.
The executive actions, absent any legislation from the GOP-controlled Congress, already have had far-reaching effects, even if they face potential legal challenges. Thousands of staff in diversity and inclusion programs are facing layoffs as soon as this week, thousands of other job offers have been rescinded in a government-wide hiring freeze and gaping senior-level holes remain at numerous agencies because of purges and an exodus of experienced staff.
The sweeping changes reflect Trump’s campaign pledge to “dismantle the deep state” by firing bureaucrats he blamed for thwarting his first-term agenda. His executive orders could transform an experienced, merit-based federal bureaucracy into one governed by employees with political allegiance to the Trump administration.
“These actions are opening much more of the civil service to be chosen by the Trump administration than would be usually seen during a change in administration,” said Kevin Owen, a Washington-area employment lawyer who represents federal employees.
In Trump’s first term, inexperience and chaos slowed much of his plan to weaken the civil service. But the barrage of eight executive orders and as many personnel memorandums in the opening days of his second term bears out how carefully his new administration prepared for this moment. Since Trump’s victory in November, his domestic policy team has raced to determine which interpretations of the law would be novel but legal, which might get the administration sued and which legal challenges they could accept, according to people familiar with their thinking.
“The administration is clearly better prepared this time than they were in 2016,” said Donald Moynihan, a civil service expert who teaches public policy at the University of Michigan. “They’ve been waiting for this moment, and their preparation is being turned into policy.”
Karoline Leavitt, Trump’s press secretary, said on Tuesday that the president’s broad executive power allows him to fire anyone in the executive branch. “We will win in court” on any legal challenges, she added.
A senior Trump official, speaking on the condition of anonymity because they were not authorized to speak publicly about White House policies, said the shake-up is designed to hold the civil service accountable, whether for performance, corruption — or a failure to carry out the president’s agenda. The official cited the government’s “many good federal employees” and denied critics’ long-held contention that the administration will use loyalty to Trump as a litmus test.
“You work hard, and who you give money to doesn’t matter,” the person said, describing two main goals for Trump’s government: “Accountability and efficiency,” which will lead to shedding jobs. “There’s a lot of fat in government to be trimmed,” the person said.
The White House said voters sent Trump back into office in part to reshape the federal workforce through bold actions.
“President Trump was given a resounding mandate from the American people to deliver on the promises he made on the campaign trail, including restoring a society based on merit, implementing commonsense policies, and reigning in unelected government bureaucrats,” deputy press secretary Kush Desai said in a statement. “He will use his executive power to deliver.”
But critics say that in his rush to reshape the government, Trump is trampling on the law — and quickly eroding more than a century of work by Congress to create a nonpartisan, skilled professional workforce that’s not beholden to any president. The administration is probably counting on many civil servants to leave rather than follow through with protracted legal fights around the methods the White House is using to force them out, experts said.
“There is a theme here,” said Rob Shriver, who left the Biden administration last week as acting head of the Office of Personnel Management before joining Democracy Forward, a liberal-leaning legal group that launched a new effort to defend against Trump’s attacks on the civil service. “This is a strategy of trying to drive out and sideline career experts, freezing hiring so the agencies can’t backfill, and then surging in unqualified political partisans.”
A different kind of workforce
Presidents are always able to hire and fire their closest advisers to ensure that their vision for the country is carried out. But conservatives have argued that the president should exert more control over the workforce, and Trump has accused career staff of deliberately resisting his first-term policies and launching investigations against him.
Hours after Trump took the oath of office last week, the White House set in motion its plans to upend the career civil service, with executive orders that ended diversity, equity and inclusion programs, ordered a return to the office and moved to strip job protections from thousands of employees — from policymakers to budget officers to public affairs staffs.
Many of those plans were crafted during the four years Trump was out of office by former administration officials at conservative think tanks. They include Russell Vought, the first-term White House budget director and current nominee to return to the role, and James Sherk, a labor economist who returned last week to the White House Domestic Policy Council after four years at the America First Policy Institute, a think tank formed after Trump’s first term to promote his policies.
Beneath the hood of those early directives, Trump’s team is relying on a variety of tools to winnow down and reshape the workforce. Many are untested in modern law and will shift power to political appointees in what experts say will bring loyalty tests to a nonpartisan government.
Among Trump’s first orders was to reinstate a policy widely known as Schedule F, originally issued at the end of his first term, that removes civil service protections from career employees in policy roles — potentially allowing the president to replace nonpartisan professionals with political loyalists. But former president Joe Biden, who rescinded Trump’s original order after taking office, had put in place an administrative rule that blocked Trump from easily bringing the policy back.
Rather than wait to follow the slow, official process to unwind the Biden rule, Trump’s executive order essentially declared most of it unlawful, legal experts said.
Acting agency leaders are gathering lists of employees in policymaking roles who would lose job protections under the revived rule, which was extended to cover supervisors and other groups of employees, although a new provision also says those losing job protections “are not required to personally or politically support the current President or the policies of the current administration.” They just have to carry them out.
Trump officials argue that presidents have significant leeway to reclassify employees, setting different rules for different groups. But the National Treasury Employees Union sued the administration within hours, calling the order “contrary to congressional intent” in a complaint filed in the U.S. District Court for the District of Columbia.
Trump has also moved quickly to test a law requiring 30 days’ notice before a president can fire the inspectors general who conduct oversight of agency operations. Trump defended the dismissals as a “very standard thing to do,” and some in the administration have pointed to his authority under Article 2 of the Constitution to avoid notifying Congress or giving specific reasons in each case. Others have pointed to a 2020 Supreme Court decision that Congress improperly insulated the head of the consumer watchdog agency from removal.
The White House has pushed the bounds of civil service laws by firing more than a dozen prosecutors this week who had worked on federal prosecutions of Trump and four senior executives from the Justice Department office that oversees immigration judges. Until now, career senior executives could be dismissed only for cause.
A person familiar with the immigration court officials’ dismissal, who spoke on the condition of anonymity because he was not authorized to speak publicly on their behalf, called them “outstanding, nonpartisan experts who have stellar records and have worked in the public interest on one of the toughest issues in government.”
Politics above performance
The new administration has also begun skirting personnel rules that require senior executives’ performance to be evaluated by a panel of career and political employees — instead, putting political appointees in charge. The system “goes from being nonpartisan to requiring a political litmus test: Are you supporting the administration?” one senior executive in government said.
On Tuesday, Trump also moved to oust Democratic members on two independent federal commissions — the Equal Employment Opportunity Commission and National Labor Relations Board. The move breaks decades of legal precedent, experts said, including a 1935 Supreme Court ruling that the president can only fire members of such independent commissions in select cases of inefficiency, neglect of duty or malfeasance.
“These were far-left appointees with radical records of upending long-standing labor law, and they have no place as senior appointees in the Trump administration,” said a White House official, speaking on the condition of anonymity under ground rules set by the administration.
Other actions that will quickly reshape federal agencies are unprecedented — but likely within the law, experts said, and demonstrate the White House’s ability to use the nuances of the system.
The White House quickly ordered agencies to draw up lists of the more than 200,000 employees on one or two years’ probation, a signal that they could be fired in an instant. The employees are being assessed to determine which ones “are getting the job done and helping the government operate efficiently,” the senior administration official said. Keeping those involved with immigration enforcement will be a priority, the official said, while others in “components that are overstaffed” will be easier to dismiss.
Acting agency heads have been encouraged to consider generous use of paid leave and temporary assignments, known as details, in what critics called an effort to sideline employees to convince them to quit or lay them off.
In their place, Trump could hire thousands of temporary political employees that new administrations traditionally bring in to guide the transition. There are strict caps on these positions, which can last up to eight months under federal law.
But a little-noticed memo issued on Trump’s first day in office by the Office of Personnel Management lifted the cap to allow Trump to bring on an unlimited number of temporary appointees. The senior administration official acknowledged that the White House wants more political appointees to make sure the career staff carry out the new administration’s agenda. But the official said the number still will be small compared to the massive number of career employees.
The administration is also directing agencies to reexamine union contracts guaranteeing work-from-home that were reached with the Biden administration, some signed shortly before Biden’s term ended; the order instructs agencies to “bring any relevant Collective Bargaining Agreements into compliance” with return-to-work.
Unions have vowed a court battle. “Our expectation is for agencies to follow the requirements of the law and honor union contracts,” Everett Kelley, national president of the American Federation of Government Employees, the government’s largest union with 750,000 members, said in a statement. “If they do not, we will hold them accountable to the law.”
Those who have served in government said Trump’s “shock and awe” strategy may end up harming his administration’s own interests by chasing out career employees with years of experience and expertise.
“They may feel like they’re targeting their perceived enemies, but they need to realize that the career people may not love their agenda but they will implement it,” said Jim Secreto, who was deputy chief of staff at the Commerce Department under Biden. “They should try to get the staff to do what they want. Instead, they’re throwing a bazooka at the whole government.”
Jacqueline Alemany and Julian Mark contributed to this report."
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