The Impact of “Schedule F” on Environmental and Administrative Governance
Arian Rubio
In The Fifth Risk, Michael Lewis notes:
The United States government might be the most complicated organization on the face of the earth. Its two million federal employees take orders from four thousand political employees. Dysfunction is baked into the structure of the thing: the subordinates know that their bosses will be replaced every four or eight years, and that the direction of their enterprises might change overnight–with an election or a war or some other political event. Still, many of the problems our government grapples with aren’t particularly ideological. . .[1]
The creation of new ways to reclassify some of those millions of career federal employees seems innocuous. “[P]urging potentially thousands of civil servants and filling career posts with loyalists” is a whole other story.[2] Both, however, describe what the Trump administration worked to accomplish before evidently turning its attention to disputing the results of the 2020 presidential election.[3]
In October 2020, then-President Trump issued an executive order granting a president and senior presidential appointees additional discretion to hire and fire federal employees in policy-related jobs.[4] The policy, known as “Schedule F,” appears to have its basis in an internal 2017 White House memorandum, which was made public in 2020, suggesting that there “are legal arguments that Article II executive power gives the president inherent authority to dismiss any federal employee” and suggesting an executive order “outlining a streamlined new process for dismissing federal employees.”[5] As the Washington Post Editorial Board articulated, Trump’s executive order “signed without fanfare. . . could prove one of his most insidious.”[6]
President Biden quickly repealed the executive order to establish Schedule F shortly after taking office, stating that Schedule F “not only was unnecessary to the conditions of good administration, but also undermined the foundations of the civil service and its merit system principles.”[7] Schedule F nonetheless remains a threat to the administrative state and environmental regulation.[8] Republicans in the U.S. House of Representatives introduced legislation in line with Schedule F, and Trump announced another presidential run for 2024.[9] News reports state that Trump would quickly reinstate Schedule F if elected again, which would give his administration significantly more time to implement the proposal.[10] Additionally, several potential Republican presidential candidates, like Florida Governor Ron DeSantis, have expressed openness to Schedule F or similar proposals to reform the civil service.[11] Former Trump administration officials have reportedly identified “up to 50,000 federal employees to immediately reclassify upon the election of the next Republican president and threaten them with firing,”[12] and before Trump left office, the Office of Management and Budget “was slated to see 68% of its workforce converted to Schedule F.”[13]
While it may seem uncontroversial to consider that “agencies should have a greater degree of appointment flexibility with respect to these employees than is afforded by the existing competitive service process,” the actual implications of Schedule F remain far more consequential.[14] Consider the scope of the federal workforce.[15] As then-Justice Stephen Breyer wrote, “[w]hile it is easy to see the effect of executive branch decisions on basic rights, such as the presidential order to send troops to Little Rock to enforce Brown [v. Board of Education], it is harder to remember that routine agency decisions can also affect our daily existence, often in profound ways.”[16] Breyer notes that:
Agencies. . . typically possess great power. They write regulations that, like congressional statutes, take effect as law. They resolve disputes, often in much the same way that courts adjudicate controversies. . . In a word, federal government programs are many, they come in different shapes and sizes, and they employ millions of government officials and ordinary workers.[17]
Reclassification of federal employees would ensure that agencies bend more easily to the will of political leadership. According to the Project on Government Oversight, under the Schedule F regime, “an agency head could reclassify a specific position based on who currently holds it. Agency heads actually have an incentive to do this as they work at the pleasure of the president and in theory would make decisions that meant getting on the president’s good side or that would mitigate the risk of being fired themselves.”[18]
The principles of Schedule F, however, conflict with longstanding understandings of a non-political civil service.[19] As Professor Jon D. Michaels of the UCLA School of Law put it, “bureaucratic officials are emboldened to speak truth to power because most of them are civil servants, insulated by law and custom from politics and owed what in effect amounts to job tenure.”[20] Alternatively, steps to undermine the civil service “have damaged the administrative architecture, demoralized agency personnel, and limited the bureaucracy’s capacity to be meaningfully rivalrous.”[21]
The federal workforce, those actually implementing administrative agency directives, largely consists of “career civil servants whose long-term job security does not depend on political affiliation. They are, by design, shielded from attempts to fire them by administrations with whose politics they disagree.”[22] Notably, “[m]ost civil servants operate in the realm of policy (which is preferably fact-based), and their decisions are judged primarily in political terms. The purpose of the [Administrative Procedure Act]. . . was to ensure that decisions affecting the public were not the result of ‘administrative absolutism.’”[23] To be sure, there have been several modern instances in both Democratic and Republican administrations where federal employees have defied policy directives from elected and appointed political leadership,[24] but undermining the system to which those employees are hired and fired is inherently destabilizing.[25]
The implications of Schedule F are stark, particularly for environmental law and policy.[26] In reviewing Schedule F, the Government Accountability Office (GAO) cited several concerns from stakeholders.[27] Critically, the GAO has heard that “Schedule F could make it more difficult to recruit federal employees, as potential applicants interested in a federal career could be deterred from taking a Schedule F position if they believed they could be removed for political reasons after a change in administration” and that “Schedule F could result in increased employee turnover between administrations, leading to a lack of continuity and a potential degradation in the overall subject matter expertise held within the civil service,” which could undermine “institutional memory, knowledge, and competence across administrations.”[28] Meanwhile, news reports in early 2023 state that the Environmental Protection Agency (EPA) is “still reeling from the exodus of more than 1,200 scientists and policy experts during the Trump administration.”[29] Furthermore, “[t]he EPA faces a chronic shortage of federal workers that has only marginally improved under Biden”[30] and “[t]oday, the workforce is around the size that it was under President Ronald Reagan in the 1980s.”[31] Damaging recruitment or recruiting only politically loyal ideologues at already understaffed environmental agencies, which are currently experiencing challenges in implementing the Biden administration’s priorities,[32] could therefore stifle the agency’s expertise and productivity for years to come.[33] This is particularly troubling when recalling the EPA’s mission “to protect human health and the environment” through actions like ensuring that people “have clean air, land, and water” and ensuring that “laws protecting human health and the environment are administered and enforced fairly, effectively and as Congress intended.”[34]
Democrats in Congress have worked to counter a president’s ability to establish a system similar to Schedule F, including provisions proposed for the annual defense policy bill, but the proposal did not pass before Republicans assumed control of the U.S. House of Representatives.[35]
U.S. Representative Gerald E. Connolly, a member of the House Oversight & Accountability Committee, noted that the “federal workforce consists of roughly 2 million federal employees hired based on their acumen, and they work each day for the American people — serving in myriad capacities to improve this nation and America’s posture abroad. These impartial civil servants research vaccines, help families in the wake of hurricanes and deadly fires, and inspect our food to ensure they are free of disease.”[36]
Representative Connolly and other Democratic members of Congress are right to be concerned about what would happen if proponents of Schedule F eventually gain the political support necessary to implement similar proposals.[37] Actually protecting the federal workforce and the public they serve from Schedule F and similar proposals to reclassify agency staff, however, remains an ongoing project.
Arian Rubio is a Junior Editor with MJEAL. Arian can be reached at [email protected]
[1] Michael Lewis, The Fifth Risk, 37 (2018).
[2] Jonathan Swan, A radical plan for Trump’s second term, Axios (Jul. 22, 2022), https://www.axios.com/2022/07/22/trump-2025-radical-plan-second-term.
[3] See Eric Lipton, Trump Issues Order Giving Him More Leeway to Hire and Fire Federal Workers, N.Y. Times (Sept. 9, 2021), https://www.nytimes.com/2020/10/22/us/politics/trump-executive-order-federal-workers.html (“The executive order. . . described by one prominent federal union leader as ‘the most profound undermining of the Civil Service in our lifetimes,’ would allow federal agencies to go through their employee rosters and reclassify certain workers in a way that would strip them of job protections that now cover most federal employees.”).
[4] Exec. Order 13957, 85 Fed. Reg. 67631 (2020); see Cissy Jackson, Congress Must Pass the Preventing a Patronage System Act To Protect Federal Civil Servants’ Impartiality, Center for American Progress (Dec. 2, 2022), https://www.americanprogress.org/article/congress-must-pass-the-preventing-a-patronage-system-act-to-protect-federal-civil-servants-impartiality/.
[5] Memorandum from James Sherk, White House Lab. Policy Advisor, to Sec’y of Lab. Alexander Acosta, 12–13 (2017), https://www.documentcloud.org/documents/6948593-Sherk-White-House-document.html#document/p12/a568398; Nick Schwellenbach & Adam Zagorin, Inside the White House Plan to Plant Cronies All Over, Daily Beast (Jun. 24, 2020), https://www.thedailybeast.com/inside-the-white-house-plan-to-plant-cronies-all-over; seeNoam Scheiber & Glenn Thrush, Trump’s New Top Labor Official Is Expected to Advance an Anti-Labor Agenda, N.Y. Times (July 16, 2019), https://www.nytimes.com/2019/07/16/business/economy/patrick-pizzella-labor-department.html (“Soon after Mr. Acosta took office, his aides were presented with a detailed to-do list by James Sherk, who coordinates labor policy for the White House’s Domestic Policy Council and joined the administration from the conservative Heritage Foundation.”).
[6] Editorial, Trump’s newest executive order could prove one of his most insidious, Wash. Post (Oct. 23, 2020), https://www.washingtonpost.com/opinions/trumps-newest-executive-order-could-prove-one-of-his-most-insidious/2020/10/23/c8223cac-1561-11eb-bc10-40b25382f1be_story.html.
[7] Exec. Order 14003, 86 Fed. Reg. 7231, 7231 (2020).
[8] See Daniel Cotter, President Trump Issued a Schedule F Bomb, Harvard L. & Policy Rev. (Nov. 17, 2020), https://harvardlpr.com/2020/11/17/president-trump-issued-a-schedule-f-bomb/ ; see also Graham Harwood, Schedule F or How to Gut the Administrative State, Chicago Policy Rev. (Nov. 3, 2022), https://chicagopolicyreview.org/2022/11/03/schedule-f-or-how-to-gut-the-administrative-state/ (“Purging the most vital and knowledgeable federal civil servants sits somewhere between ending free media and questioning election legitimacy in the authoritarian playbook.”).
[9] Erich Wagner, ‘There Needs to Be a Reckoning’: Republicans Introduce a Bill to Make Feds At-Will Employees, Gov’t Exec. (July 29, 2022), https://www.govexec.com/workforce/2022/07/republican-bill-would-make-feds-at-will-employees-and-chill-whistleblowing/375138/; How Trump could reimpose “Schedule F” in 2025, Axios (July 23, 2022), https://www.axios.com/2022/07/22/trump-presidency-schedule-f-federal-employees (“Sources close to former President Trump say he would immediately reimpose his ‘Schedule F’ executive order if he takes back the White House in the 2024 presidential elections” (emphasis added)).
[10] Jonathan Swan, A radical plan for Trump’s second term, Axios (July 22, 2022), https://www.axios.com/2022/07/22/trump-2025-radical-plan-second-term.
[11] Alayna Treene, Scoop: 2024 GOP hopefuls back Trump’s plan to purge civil servants, Axios (Aug. 3, 2022), https://www.axios.com/2022/08/03/2024-gop-hopefuls-trump-plan-purge-civil-servants (“[Various Republican officials] showed openness to the [Schedule F] approach and told Axios they think more needs to be done to hold career officials and federal agencies accountable.”).
[12] Erich Wagner, Lawmakers Left Anti-Schedule F Legislation Out of the Compromise Defense Policy Bill, Gov’t Exec. (Dec. 7, 2022), https://www.govexec.com/workforce/2022/12/lawmakers-left-anti-schedule-f-legislation-out-compromise-defense-policy-bill/380575/.
[13] Erich Wagner, Only Two Agencies Had Submitted Their Schedule F Plans for Approval Before Its Rescission, But Several Others Had Begun Work, Gov’t Exec. (Sept. 28, 2022), https://www.govexec.com/workforce/2022/09/only-two-agencies-had-submitted-their-schedule-f-plans-approval-its-rescission-several-others-had-begun-work/377780/.
[14] Exec. Order 13957, 85 Fed. Reg. 67631, 67631 (2020); seeMark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511, 1555 (1992) ; see also Melissa Moratzavi, Institutional Independence: Lawyers and the Administrative State, 87 Fordham L. Rev. 1937, 1938 (2019) .
[15] Claudia Hartley Thurber, Congress, the President and the Politics of Federal Regulation, in Rivals for Power: Presidential-Congressional Relations, 99–100 (James A. Thurber & Jordan Tama eds., 6th ed. 2018) (“Federal rules and regulations affect everyone as they conduct their affairs, be they personal, social or work related. . . No one can escape the reach of federal rules, from the day we are born in a hospital, through our education and employment years, to our sunset years in assisted living or nursing homes; but then few of us would want to return to the days when unsafe conditions abounded in nearly all areas of life”).
[16] Stephen Breyer, Making Our Democracy Work, 106 (2010).
[17] Id. at 107–108.
[18] Tim Stretton, Trump’s New Executive Order Would Enable Government Corruption, Project on Gov’t Oversight (Oct. 30, 2020), https://www.pogo.org/analysis/2020/10/trumps-new-executive-order-would-enable-government-corruption.
[19] See David M. Levitan, The Neutrality of the Public Service, 2 Pub. Admin. Rev., 317 (1942) (“A career service must provide that entrance into the service shall be based wholly upon merit, without any regard to political considerations. Also a career service must provide for permanence of tenure during good behavior and satisfactory performance and for an opportunity for promotion to the very top of the administrative hierarchy. . .” (emphasis added)); see also Jackson, supra note 4 .
[20] Jon D. Michaels, The American Deep State, 93 Notre Dame L. Rev. 1653, 1657 (2018).
[21] Id. at 1668; see also Hartley Thurber, supra note 15, at 99 (“The executive branch, the president’s administrative tool, but also answerable to the Congress and the courts, is an important component in the rivalry for political power in American democracy.”).
[22] John Pavlus, Civil Servants Often Work for Administrations They Disagree with Politically. How Does This Affect Their Job Performance?, KellogInsight (Jun. 1, 2021), https://insight.kellogg.northwestern.edu/article/civil-servants-political-ideology.
[23] Paul R. Verkuil, Presidential Administration, the Appointment of ALJs, and the Future of for Cause Protection, 72 Admin. L. Rev. 461, 462 (2020).
[24] See Jennifer Nou, Civil Servant Disobedience, 94 Chicago-Kent L. Rev. 349, 357 (2019).
[25] SeeMark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511, 1576 (1992) .
[26] See Hartley Thurber, supra note 21, at 106 (“The EPA has the distinction of promulgating the most rules with the highest costs, so it is not surprising that EPA generates controversy for its past, current, and future rulemakings, and is a prime target for President Trump’s deregulation efforts.”).
[27] U.S. Gov’t Accountability Off., Agency Responses and Perspectives on Former Exec. Ord. to Create a New Schedule F Category of Fed. Positions (2022), https://www.gao.gov/assets/gao-22-105504.pdf.
[28] Id. at 22–23.
[29] Lisa Friedman, Depleted Under Trump, a ‘Traumatized’ E.P.A. Struggles With Its Mission, N.Y. Times (Jan. 25, 2023), https://www.nytimes.com/2023/01/23/climate/environmental-protection-agency-epa-funding.html.
[30] Maxine Joselow, Here’s why Biden is ‘falling behind’ on environmental rules, Wash. Post (Jan. 19, 2023), https://www.washingtonpost.com/politics/2023/01/19/here-why-biden-is-falling-behind-environmental-rules/.
[31] Lylla Younes, At EPA, staffing crisis clashes with expanded mission, Grist (Feb. 14, 2023), https://grist.org/regulation/at-epa-staffing-crisis-clashes-with-expanded-mission/.
[32] Timothy Puko, Delays plague Biden’s push for rapid action on climate change, Wash. Post (Jan. 19, 2023), https://www.washingtonpost.com/climate-environment/2023/01/19/biden-climate-change-delays/.
[33] Memorandum to Congress from [American Federation of Government Employees] Council 238 (2023) https://afge238.org/wp-content/uploads/sites/46/AFGE-Council-238-Congressional-Briefer.docx.pdf ; see Younes, supra note 31 (“Leaders of AFGE Council 238, a union representing roughly half of the EPA’s 14,000-member workforce, said in a memo that non competitive salaries and a lack of career development opportunities are fueling attrition and overburdening staff.”)
[34] Our Mission and What We Do, Env’t Prot. Agency (June 13, 2022), https://www.epa.gov/aboutepa/our-mission-and-what-we-do.
[35] Erich Wagner, Lawmakers Left Anti-Schedule F Legislation Out of the Compromise Defense Policy Bill, Gov’t Exec. (Dec. 7, 2022), https://www.govexec.com/workforce/2022/12/lawmakers-left-anti-schedule-f-legislation-out-compromise-defense-policy-bill/380575/.
[36] Gerald E. Connolly, Opinion, How to stop Trump’s sneak attack on the civil service, Wash. Post (July 26, 2022), https://www.washingtonpost.com/opinions/2022/07/26/trump-schedule-f-civil-service/.
[37] See Erich Wagner, Lawmakers are Doubling Down on the Effort to Prevent the Next Schedule F, Gov’t Exec. (Feb. 14, 2023), https://www.govexec.com/workforce/2023/02/senate-democrat-doubles-down-his-effort-prevent-next-schedule-f/382923/.