This post is the third in a three-part series. Read the first part here, and read the second part here.
Over the course of this series, I have explored President Donald’s Trump’s comprehensive effort to build from a scratch a new regulatory system that systematically favors his administration’s anti-regulatory agenda. As part of this campaign, he has issued several executive orders that fundamentally distort the key building blocks that comprise our regulatory system: law, science, economics, and the career civil service.
In the earlier posts, I examined the executive orders specifically affecting the first three of those building blocks. In this final post, I examine Trump’s efforts to remake the civil service.
The Civil Service
The professional civil service is the last and final building block that comprises our regulatory system. These are the individuals who pull together all the other building blocks, synthesize them, and ultimately use the results to implement the regulatory programs that Congress authorizes or requires. What’s significant about these individuals is they not only bring a significant professional or subject matter expertise — engineering, medicine, toxicology, law, and so on. But, as legal scholars like Elizabeth Fisher, Sidney Shapiro, and William Araiza have all noted, they also bring a distinctive form of practical expertise that comes from actually applying their specialized skills to the even more specialized task of policy implementation.
And one reason they are able to develop this additional “administrative expertise” is because our professional civil service laws rest on a vision of continuity across presidential administrations — by and large, the economists at the Department of Labor’s Bureau of Labor Statistics and the nutritionists at the Department of Health and Human Services remain unchanged after each election. And contrary to what you might hear from the Trump administration, it is precisely this administrative expertise acquired through continuity that enables the civil service to implement programs consistent with a new administration’s changing policy priorities as much as the law and on-the-ground evidence permits. In short, it promotes accountability, rather than detracts from it (within rule-of-law limits, of course, which is really what the fight is all about). Legal scholars Anya Bernstein and Cristina Rodriguez recently published an important article exploring this dynamic.
Another, related reason is that our professional civil service laws seek to carve out for career staff a certain measure of “effective independence.” In their day-to-day work, members of the civil service put their oath of office ahead of loyalty to the highest rungs of the administrative hierarchy. Again, this independence is critical to the development of both forms of expertise that the career civil service brings to their work. Perhaps somewhat counterintuitively, it also can promote accountability, as well. It is only with true independence that the civil service has the ability to use their expertise to find the best solutions for achieving their boss’ policy goals. Legal scholar Nicholas Bednar has an important new article on this issue.
Despite the obvious benefits of continuity and independence for an effective, accountable civil service, Trump has issued several executive orders and other presidential actions all designed to undermine the very qualities our federal civil service laws seek to promote. The kicker is that he justifies all these actions on the grounds that they’ll promote effectiveness and accountability in the federal civil service.
The most notorious of these orders is Trump’s Day One “Schedule F” order, formally entitled “Restoring Accountability to Policy-Influencing Positions Within the Federal Workforce.” (Schedule F is also now called “Schedule Policy/Career,” a move that seems calculated to confuse.) The point of this order is to move large swaths of the career civil service from the merit-based system for hiring, promotions, rewards/punishments, and firing into an “excepted” category in which none of those protections apply. The upshot is that all career civil service workers in this new Schedule can be fired at will. That doesn’t mean that they will be fired, but it does mean federal employees will face strong incentives against speaking out or disagreeing with political bosses — even in instances of illegal agency action.
In theory, Trump could have addressed issues of hiring new employees through the Schedule Policy/Career executive order. Instead, he addressed that issue in a separate Day One executive order on “Reforming the Federal Hiring Process and Restoring Merit to Government Service.” In addition to ridding the hiring process of anything with a whiff of DEI, the order laid the groundwork for making professed loyalty to the president a condition of federal employment. (We got our first sight of how this order would be implemented with a May memorandum from the Acting Head of the Office of Personnel Management, mandating that most future job applicants write an essay about their favorite Trump executive order.)
Trump has further buttressed the effect of these actions through various other orders, memoranda, plans, and policies that call for extensive agency reorganization and downsizing (which would eliminate existing offices and result in laying off large swaths of the civil service), that seek to induce members of the civil service to “voluntarily” retire early, and that would make it easier to fire members of the civil service under certain circumstances.
Now What?
What emerges from these executive orders is a complete perversion of our regulatory system — almost the administrative state equivalent of “the Upside Down” from the show Stranger Things. Instead of promoting such values as accountability, effectiveness, democratic input, fairness, and equity; these measures seek to promote a distinctly sinister, but vaguely recognizable opposite.
Over the last five months, Trump has flooded the zone with executive orders that remake our regulatory system, with the ultimate goal of laying the groundwork for his administration to then flood the zone even more with illegal regulatory actions. This strategy is intended to exploit the fundamental weak point of administrative law: its presumption of a president operating in good faith and its concomitant reliance on accountability mechanisms that are both reactive in posture and discrete in their operation.
It is one thing to identify the various ways the Trump administration’s deregulatory actions are illegal; it is quite another to actually do something about it. The advocacy community can only bring so many lawsuits, and there are just enough Trump-appointed hacks dotting our federal judiciary to undermine even this imperfect strategy.
I wish I had better news, but these next few years are going to be bad. The best we can hope to do is limit the damage and learn some lessons about how to build a new, better administrative state capable of restraining a future authoritarian.
