The Biden Administration moves to protect civil servants from future purges

A guardrail against Schedule F

Thirteen days before he lost the 2020 presidential election, Donald Trump tried to remake the federal government. 

On Oct. 21, he issued an executive order creating a new category of federal employment, known as Schedule F, in which his administration claimed public servants could be hired and fired at will. An estimated 50,000 career federal employees — the people who ensure the safety of the drugs we take and the food we eat — would have been swept into this category and, had the order survived legal review, purportedly stripped of their employment protections. 

New hires for positions that demand both expertise and experience would not have been selected on the basis of either; the order dispensed with such requirements. Trump’s vision was governance by fiat: if the president says a hurricane bound for the Atlantic coast will instead hit Alabama, no federal employees should tell Alabamians otherwise and expect to keep their job. 

Schedule F’s intent was clear: to threaten civil servants into submission and create a cadre of officials loyal not to the Constitution and laws, but to Trump personally. Their mission of serving the American people effectively, upholding laws and honoring their oaths faithfully would have taken a back seat to toeing the partisan line. 

But Trump ran out of time. 

Schedule F could not be implemented before he left office. President Biden revoked the order. And today, the Biden administration finalized a rule that will strengthen key protections for civil servants and protect against future efforts to institute Schedule F or something like it (Trump has announced his plan to reissue Schedule F “On Day One” of a second term). 

The new rule, issued by the Office of Personnel Management (OPM) with extensive input from us and other commenters, does three things: 

• First, it affirms and clarifies that under the Civil Service Reform Act, only a small number of political appointees could be lawfully moved into a category like Schedule F, which applied to positions of a “confidential, policy-determining, policy-making, or policy-advocating character.” This decades-long view reflects the meaning of that term of art at the time Congress enacted that language in 1978. 

• Second, the rule reinforces the case law and “longstanding interpretation[] and practice” holding that when civil servants are involuntarily moved from one part of the civil service to another, they retain the rights and employment protections they had accrued in their original position. 

• Third, the rule outlines procedures that agencies must follow when moving employees from one part of the civil service to another, and it establishes a new right to appeal an involuntary movement that purports to strip an employee of their rights and protections.

As one of us recently wrote in the New York Review of Books, “[t]his isn’t just an employees’ rights issue. What’s at stake is democracy itself.” 

What’s at stake is whether we live in a society characterized by the rule of law or the whims and rancor of partisans under the command of an authoritarian administration. Today, the Biden administration took a stand for the former.