The “patriot” in the cubicle next door

Ideological tests for hiring and retention of civil servants

Dear Civil Servant,

Do you have the “right kind” of patriotism to be hired into the Trump administration’s civil service? Sure, you’re an expert in your field and you’ve dedicated your career to public service — but can you write an essay on your favorite Trump administration executive order? And if you are hired, will you be deemed suitable to continue serving?

We’ve written in the past about firings or workforce reduction mechanisms — RIFs, Schedule F, the probationary purge, etc. — but there are other levers of control over the civil service: hiring, retention, and enforcement (or not) of the civil service rules. The administration is now pulling those levers. And, though this administration may use the word “merit” in hiring, its actions suggest that ideological alignment and loyalty are key to its civil service hiring, retention, and firing decisions. The apparent goal is to hire and retain Feds based on their politics rather than their performance.

This newsletter will break down OPM’s new hiring memo and a proposed “suitability and fitness” rule that would give the administration broad power to decide who gets to become — or remain — a tenured civil servant. The good news is that a brief comment period is still open on the proposed suitability and fitness rule. More information is below, but you can comment here, now.

OPM’s “merit” hiring memo

On May 29, the Office of Personnel Management (OPM) released a new memorandum titled “Merit Hiring Plan” that creates a set of new rules for federal hiring processes and greatly expands the role of political appointees and OPM in those processes. This is in line with the accelerating transformation of OPM into a tool of centralized control for the Trump administration.

Coded — or at least, loaded — language

The memo’s language must be viewed in the context of the administration’s broader effort to politicize the civil service. Seizing political control of governmental functions that should be free of politics is a common tactic of aspiring autocrats; it’s practically the first chapter of any authoritarian playbook.

Some phrases in the memo are overtly troubling, like the requirement that federal workers “faithfully serve the Executive Branch.” Civil servants take an oath to uphold the Constitution — not the dominant political structure and its insiders.

Other phrases in the memo — like “passionate about the ideals of our American republic” and “patriotic Americans” — would be unproblematic in some contexts. After all, our federal public servants and our military service members are truly among the most patriotic people in the country. But in the Trump administration, that same language is loaded with the intimations of a very specific political worldview. It certainly does not reflect the American values of constraining governmental power, preventing the misuse of authority to target political opponents and dissidents, or being able to trust public servants to reject unlawful orders.

Political viewpoint questions: Illegal loyalty tests?

The memo adds a new screening mechanism for job applicants that has the hallmarks of a political loyalty test. Going forward, each new job posting for positions at the GS-5 level and above will ask applicants to write essays on topics including:

How would you help advance the President’s Executive Orders and policy priorities in this role? Identify one or two relevant Executive Orders or policy initiatives that are significant to you, and explain how you would help implement them if hired.

How has your commitment to the Constitution and the founding principles of the

United States inspired you to pursue this role within the Federal government? Provide a concrete example from professional, academic, or personal experience.

If you’re a microbiologist, food inspector, or firefighter, which of the Federalist Papers could you possibly quote to explain the origin of your career choice? The obvious answer is that the response doesn’t matter, not exactly anyway. The public is rightly suspicious that asking these questions is just a ploy to solicit information about an applicant’s political leanings.

Beyond the substance of these questions, the process itself also is infused with the judgment of political appointees on the ideological beliefs of applicants. For example, the memo provides: “Agency leadership, or designee(s), should conduct a final ‘executive interview’ to confirm organizational fit and commitment to American ideals.”

You’ve undoubtedly spotted the issue: Who decides what “commitment to . . . the founding principles” and “American ideals” looks like? This country’s founders rose up against tyranny, but those same founders reached the three-fifths compromise; which of those “founding principles” is the OPM memo talking about? This is either a requirement too vague to be meaningful, or it is not vague at all — it is a very clear message to job seekers that the administration wants to hire people who are willing to signal their loyalty to the administration’s ideology.

These sorts of tests for political ideology are at odds with the Civil Service Reform Act and constitutional protections; they should not be legal. In a New York Times guest essay, “Why on earth should air traffic controllers be pro-Trump?” legal scholars Erwin Chemerinsky and Catherine Fisk argue that the memo “creates an unconstitutional political test for federal hiring” and is “at heart . . . about viewpoint discrimination” implicating First Amendment freedoms.

And policy experts — even those who have called for reform of the federal hiring process — have called out how the OPM memo departs from the policy of employing civil servants based on their merit. Public policy professor Don Moynihan wrote on his Substack: “The most meaningful effect of the policy will be to make it easier to hire unqualified candidates based on their political loyalties to the Trump administration, placing them into the career civil service.”

Analysis by the Niskanen Center warns: “Mandatory training and essay questions tied to the current administration’s executive orders — and explicit political sign‑off on certain hiring actions — risk blurring the firewall between career professionals and partisan appointees.”

OPM’s new proposed rule: “Suitability and Fitness”

In a move last week that buried a tectonic shift in extremely wonky and technical language, OPM published a new proposed rule titled “Suitability and Fitness.” Among other things, the rule would create a new method of removing current federal employees — by OPM, for broad and vague reasons, with little oversight. Suitability and fitness regulations have generally been used to assess whether applicants or new hires were suitable for federal employment, but OPM proposes reshaping them into a tool of removal or other discipline for current civil servants. The proposed rule:

• Circumvents the system Congress created for removal of federal employees in the Civil Service Reform Act (CSRA) — which includes robust appeal rights — by authorizing OPM to take “suitability” actions based on conduct occurring after an employee has already been hired.

• Expands OPM’s reach by allowing OPM — not your employing agency — to make suitability determinations that result in firing current federal employees. For many civil servants, this would mean that the administration’s centralized HR agency could have you fired without the normal civil service protections.

• Creates opportunities for politicized enforcement by creating broad and vague factors that may be used for negative suitability or fitness determinations.

Sidestepping the CSRA: An additional tool for removing civil servants

Suitability regulations aren’t new, but this proposed rule would expand their use so dramatically that it would essentially create a new system for removing (firing) federal employees based on allegations of misconduct committed after they were hired — and it would limit civil service protections that empower the Merit Systems Protection Board (MSPB) to overturn unwarranted terminations of a competitive service employee.

Historically, agencies have assessed the suitability of job applicants and new hires; being found “unsuitable” mostly meant that you would not be hired (though the government did, in rare cases, conclude later that an employee was not actually suitable at the time of hiring). When the government has wanted to remove a competitive service employee for alleged misconduct that occurred while he was a federal employee, it has had to follow the requirements laid out in Chapter 75 of the CSRA. The CSRA provides protections for federal employees, in service of maintaining the merit system. Among those protections is a right to appeal the removal to the MSPB, which can overturn the employment action.

The proposed rule would give OPM the authority to make suitability determinations and take suitability actions against certain employees based on conduct occurring while they are a federal employee. Suitability actions can include cancellation of eligibility for employment, removal from the civil service (i.e., firing), cancellation of eligibility to return to federal service employment, and debarment. 5 CFR 731.101. While a competitive service employee could appeal a suitability action (i.e., an action based on a suitability determination) to the MSPB, the MSPB would lack the power to overturn OPM’s action. The MSPB could only overturn some or all of the grounds for the suitability determination, and send the case back to the agency to determine whether the action was still appropriate. 5 C.F.R. 731.501. In the proposed rule, OPM states that this suitability process applies to competitive service employees, career SES members, and any excepted service employees whose positions permit noncompetitive conversion to the competitive service.

If the government wanted to accuse certain civil servants of misconduct and fire them, it would have two choices: A robust process mandated by Congress with protections for the employee designed to insulate the civil service from political pressures (Chapter 75 of the CSRA) — or a suitability process of OPM’s creation with fewer employee protections that is subject to very little oversight.

Which do you think it will choose more often?

An expanded role, and lots of discretion, for OPM

OPM’s proposed rule would establish new factors that would support a negative suitability determination. These new factors are broad. How broad? Misplace-a-stapler broad! Get-stopped-for-jaywalking broad! One new proposed factor is the “theft, misuse or negligent loss of government resources and equipment.” Other factors include:

• Refusal to certify compliance with, and/or adhere to, non-disclosure agreements;

• Refusal to furnish testimony as required under the Civil Service Rules;

• Failure to comply with generally applicable legal obligations, including timely filing of tax returns;

• Failure to comply with any provision that would preclude Federal service, including citizenship or nationality requirements.

OPM states that it anticipates it will use these new factors to turn half of all firings into suitability cases, which could gut the MSPB’s power to protect employees. If OPM now serves as an influential arm for enacting the president’s preferences, then this rule affords it more decisionmaking power to remove or retain certain career employees.

This rule threatens the neutral delivery of government services to the public by giving political appointees the power to label civil servants “unsuitable” and purge them for a very broad range of reasons with little oversight or recourse.

That’s why it’s so critical to point out the insidious nature of this proposed regulation — and there’s a way for you to do that right now!

Comment *now* on the proposed rule

When one comment window closes, another one opens. The last time OPM published a proposed rule affecting civil servants, you showed up. And you have the chance to do it all over again: Comments for OPM’s new proposed rule, “Suitability and Fitness,” are due by July 3, 2025 at 11:59 PM EST. You can submit comments here.

A few reminders about commenting:

• OPM is required to consider your comments when issuing a final rule.

• Your comments are strongest when they provide credible, relevant, and detailed information about why this suitability rule damages hiring and retention practices that ensure a nonpartisan and merit-based civil service.

• You have the option to comment anonymously. However, providing your name can lend context and credibility to what you say.

We strongly encourage you to comment on this proposed rule. So many civil servants leveraged their expertise — amassed from years of public service — to comment on OPM’s proposed “Schedule F” rule (aka “Schedule Policy/Career”): “Improving Performance, Accountability and Responsiveness in the Civil Service”. This effort from current and former Feds, public interest organizations, and concerned citizens resulted in an unprecedented number of public comments (about 40,500) submitted to OPM.

Two former civil servants created a handy website breaking down those comments. According to their analysis, of the 30,000 or so comments they’ve analyzed, 22,642 unique comments were submitted against the rule and only a meager 224 unique comments were submitted in support of it. This is a testament to the power of collective action from those within the civil servant community. Thank you to everyone who raised their voices to speak out against the dangerous consequences of Schedule P/C.

To learn more about commenting on the proposed Suitability rule:

• Read Democracy Forward and Protect Democracy’s primer on the proposed rule.

• Review our explainer on “What Makes an Effective Public Comment.”

• Use our new and improved templates for Individual Commentators and Organizational Commentators.

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Resources and readings:

• Democracy Forward’s Impacted Federal Workers Data Collection: We need your help — please use this portal to share any information about how RIFs and the threat of Schedule P/C have affected your employment and/or your agency.

• Governing for Impact’s Administrative Procedure Act Library — Resources for challenging executive branch action

• Federal Employees and Contractors Oral History Project — an opportunity to share your experiences and preserve your story

• The Washington Post — Trump administration races to fix a big mistake: DOGE fired too many people

• Jen Pahlka — What DOGE didn’t do

• Langston Hughes — Let America Be American Again

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This publication should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Protect Democracy. This publication also contains hypertext links to information created and maintained by other entities. Protect Democracy does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.