“Therefore, my son, do not take or seek counsel from the young and less wise; but from the elders, to whom this task is suitable on account of their age and wisdom. For the counsel of kings must be locked in the hearts of the wise, not spread about in the winds of fools. For if you walk the path with the wise, you shall become wise. If you converse with fools, you shall be counted among them…”
7th admonition of Istvan I of Hungary to his son
I am writing this in profound opposition to the proposed regulatory changes by the Office of Personnel Management (OPM) in docket 3206-AO80 intending to implement President Trump’s Executive Order 14171 which resurrects superseded Executive Order 13957 and proposes to re-establish Schedule F (now referred to as Schedule Policy/Career) which moves career Federal positions that enjoy broad employee due process protections into a classification that would subject the employees to increased political influence and control and also convert their employment to at-will subject to arbitrary and subjective dismissal from Federal service lacking in any due process protections whatsoever.
The whole point of having an apolitical professional career civil service is to ensure that the Federal government is staffed with individuals who have shown some measure of merit and competence in their appointment and possess the requisite skills and knowledge to provide for the continuity of government operations, especially in periods of political turmoil where a significant political transition may be taking place such as that during a presidential transition involving a change in political party and agenda.
The alternative would be to return to the infamous system of political patronage that really took hold during President Jackson’s administration (prompting the observation attributed to the system that “to the victors belong the spoils”) where Federal jobs were staffed with political cronies of questionable competence and even more questionable character that was addressed by the Pendleton Civil Service Act of 1883 and subsequent legislation that OPM should be intimately familiar with in the Civil Service Reform Act of 1978 that created the agency!
A Very Brief History of Patronage in Federal Employment
President Andrew Jackson’s administration was the first one that really took off with the idea of rewarding political party loyalists with cushy jobs on the Federal payroll soon after his election and his views of opposition from within the government were certainly coloured by his outrage at having been deprived of the election four years prior as a result of a “corrupt bargain” between Speaker of the House Henry Clay of Kentucky and John Quincy Adams of Massachusetts who was selected by the House of Representatives to be President when the electoral vote failed to resolve the election of 1824.
He was determined to ensure that he would not have to deal with any resistance to his policies in the Executive Branch by appointing party hacks and apparatchiks to the Federal civil service with no qualifications necessary and who presumably would be grateful for their preferment by faithfully implementing President Jackson’s political policies which included the disgraceful ethnic cleansing and removal of Native Americans on the “Trail of Tears” that claimed so many lives as the tribes were relocated to lands that were utterly alien to them and their way of life.
Over the years, the patronage system flourished so much that Presidents and members of Congress were spending many hours of their waking days attending to patronage appointments to the civil service. It wasn’t particularly surprising that this politically-appointed workforce was corrupt and scandal-ridden (particularly amongst the postal and customs services where cash was readily available).
This ultimately came to a head after the assassination of President Garfield by a deranged seeker of a Federal patronage job when the Pendleton Civil Service Reform Act of 1883 was signed into law by a chief executive that likely 100 in 100 people would not be able to name when asked in President Chester A Arthur who had succeeded to the White House after Garfield’s passing.
For the first time, competitive standards of competence for a position (often assessed by examination) was required which initially applied to about 10% of the Federal workforce but would eventually be expanded many times over the subsequent years. As employment was still at-will and the civil service often turned over during presidential transitions, the workforce was still largely influenced by the political whims of the President but at least the appointees had to prove their competence and ability to do the job.
It would be almost 100 years after the enactment of the Pendleton Act before the modern professional civil service that was largely free of political influence would come into being with the passage of the Civil Service Reform Act of 1978.
Executive Order 14171 and OPM Proceeding From a Faulty Premise
OPM’s take on Executive Order 14171 in proposing these regulation changes starts with what I believe to be a completely wrong premise:
Accountability is essential for all Federal employees, but it is especially important for those who are in policy-influencing positions. These personnel are entrusted to shape and implement actions that have a significant impact on all Americans. Any power they have is delegated by the President, and they must be accountable to the President, who is the only member of the executive branch, other than the Vice President, elected and directly accountable to the American people. In recent years, however, there have been numerous and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership. Principles of good administration, therefore, necessitate action to restore accountability to the career civil service, beginning with positions of a confidential, policy-determining, policy-making, or policy-advocating character.
Executive Order 14171, Section 1
This passage seems to ignore the fact that the vast majority of activity in the Executive Branch is directly in response to legislation enacted by Congress and subject to review by the courts as well as the oath of office that Federal employees are required to swear/affirm upon appointment to their position which is to preserve, protect, and defend the Constitution of the United States.
Whilst the clause “I will well and faithfully discharge the duties of the office on which I am about to enter” certainly implies that those duties would include lawful directives from those set in authority over them which would include the President, it is crucially *NOT* an oath of loyalty to the President but rather it is an acknowledgment that the job that they are executing on behalf of the American people is to implement lawful and constitutional legislation and related directives/regulations rather than a loyalty to any particular political agenda without fear or favour which should be the goal of a professional career civil servant.
And let’s be very clear here…whilst this passage says they’re “beginning with positions of a confidential, policy-making, or policy-advocating character”, there’s no questioning that should this proposed tranche of career civil servants be successfully converted from members of the competitive service with due process rights to at-will employees with effectively little to no due process rights and protection from arbitrary and subjective dismissal, it won’t stop there.
The current administration has shown consistently that having found a weakness in the system that is not immediately redressed in the courts, they will continue to abuse such weaknesses.
The adverse action procedures and appeals that make it difficult for agency leadership to hold employees accountable also empower career employees to insert partisan or personal preferences into their official duties. While most Federal employees nonetheless faithfully perform their jobs, some do not. As discussed in greater detail later in this proposed rulemaking, it is well documented that many career federal employees use their positions to advance their personal political or policy preferences instead of implementing the elected President’s agenda. Such behavior undermines democracy, as it enables government power to be wielded without accountability to the voters or their elected representatives.
RIN 3206-AO80- https://www.regulations.gov/document/OPM-2025-0004-0001
In one sentence we see “most Federal employees nonetheless faithfully perform their jobs” and in the next sentence “it is well documented that many career Federal employees use their positions to advance their personal political or policy preferences instead of implementing the elected President’s agenda”.
As discussed above, their job is actually to faithfully execute the laws on behalf of the President’s duty to do the same established in Article II of the Constitution and whatever aspects of the President’s agenda that isn’t in conflict with the law and the Constitution.
The “adverse action procedures” are codified in Title 5, sections 43 and 75 and a casual reading of both of them seems to be two variations on the theme of due process rights for the employee that OPM proposes to remove from Schedule Policy/Career positions.
Neither section seems particularly onerous or a significant impediment to a genuine case of corruption or malfeasance on the part of the employee and seems to rely heavily on the same concept of having some measure of evidence and proof and a process for challenging any such evidence or adverse decision that any employee (whether civil servant or in the private sector) would consider essential to fairness in employment.
That was the whole point of establishing the Merit Systems Protection Board in the Civil Service Reform Act to ensure that there is a reasoned and deliberative process that is objective and fair as opposed to a subjective process that is just asking to be abused by unscrupulous supervisors or political appointees that could potentially severely harm an employee that should have the same presumption of innocence until being proved guilty that any citizen of this country would demand as a Constitutional right.
Is This Really a Solution in Search of a Problem?
I’ll confess that I have no idea how widespread “policy resistance” or “bureaucratic autonomy” is in the Federal workforce though as a matter of experience unofficially serving as my father’s de-facto company clerk whilst he was an officer in the Army, it wasn’t hard to figure out who was committed to the mission and who really wasn’t nor was it particularly hard to identify the ones who were disgruntled or poor performers.
However, they certainly weren’t anywhere near the majority!
But it’s not surprising in a civil service of roughly three million employees that there would be a number of employees who are not particularly invested in the policy aims of their current political overlords.
But is resistance from within truly a widespread problem or is it a case of some of the more sensational and outspoken employees brazenly declaring their opposition and how they plan on implementing it seeming like much more of a problem than it actually is?
Whilst OPM gives a few examples later in the document of “policy resistance” or “bureaucratic autonomy”, I must have missed the part where OPM or anyone else actually bothered to ask those more outspoken employees in question WHY they supposedly engaged in that resistant behaviour the administration found so objectionable in an effort to find a positive outcome?
Whilst I have no doubt that some of the cases do rise to the level of serious policy differences with President Trump and his minions, it’s been my experience that there’s often a much more substantial reason why employees might well be resistant to policy directives.
Could it be that these people are being asked to do something that the underlying law passed by Congress or court decisions does not allow them to do? I hardly expect the President or even the most capable of his appointees in Cabinet to necessarily be an expert in such details but I would expect it of a person whose job it is to find some way to implement the often conflicting policy aims of Congress and the President in a way that is coherent and functional.
Perhaps they are frustrated by procedures and processes that are unnecessarily bureaucratic and could be done much more efficiently and cost effectively and still within the bounds of the law if their leadership would bother to listen to them?
I remember a story from years ago of a riveter working at Boeing in Seattle who was consistently rated as the slowest riveter with the poorest quality on the assembly line. Thornton “T” Wilson, the formidable CEO who did not suffer fools or failure gladly went to the riveter in question and asked him why he was considered to be such a poor worker. The riveter who had no problem with self-expression himself flatly told “T” that he would be happy to do his job riveting if Boeing’s management would do theirs and provide him with a hydraulic line for his riveting gun that actually had the proper pressure and showed “T” the connection point he’d been complaining of to his supervisor for months that would not allow the riveting gun to get a proper seal.
“T” ordered that the connection be swapped out and that riveter ended up being the quickest and best amongst them after all once he actually had a properly working tool in his skilled hands.
Most people I’ve known in various civil service organisations don’t go into that line of work for the money or prestige because both are rare to find. Neither are they there for the lovely accommodations that were in style when President Eisenhower was still in office or the office building that’s even older and less functional.
They go into it with a genuine desire to bring their expertise to the service of the people, often in spite of variable support from Congress, the Executive, and the people.
The Recent DOGE Purges Show Why Employee Due Process Is Crucial!
We haven’t even gotten to the point yet of implementing the Schedule Policy/Career patronage system and we’ve already seen a glaring example of what we can expect should it actually be implemented in practise.
The raids on various executive agencies by Elon Musk and the “DOGE Bros” and resulting chaos, mass firings of Federal employees without any semblance of rationality or reason and certainly nothing approaching actual due process and consideration is what President Trump is wanting OPM to enshrine in regulations with Executive Order 14171 and this proposed rule.
Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures.
Executive Order 13957 (incorporated by reference in EO 14171), Section 1, paragraph 7
If one needs to see a reason why eliminating the competitive aspect of Federal employee selection is a horrible idea, no need to look any further than the teenagers and 20 year-olds who accompanied Elon Musk in accessing critical government systems containing very sensitive information on American citizens.
Please tell me how *ANY* of them would have ever been considered for a Federal position given their clear lack of understanding or appreciation of the relevant provisions of the Privacy Act of 1974 or in the case of medical information, the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 and other relevant legislation?
They may well have had some technical skills but frankly anyone can rape a database after reading “SQL Queries for Dummies” but there’s no way anyone will convince me they had the intricate technical expertise required for the Federal payments system which is older than *I* am and I’m not exactly a spring chicken.
And they certainly had no idea how many laws they likely broke when they started grabbing that data and dumping it onto flash drives to do who knows what with given the lack of transparency in DOGE’s actions to date.
Did any of them actually take the same oath that Federal workers are required to and are they likely to actually honour that oath when the President or one of his designees orders them to do something illegal?
Did any of them have to endure the competitive tender and hiring process that most Federal employees had to?
If the reporting on their backgrounds was anything to go by, I wouldn’t trust that lot with command of a dead cat much less the most sensitive data on the American people that the government was trusted to keep safe but now cannot possibly guarantee still is safe.
And that’s not even taking into account the chaos that was caused by the indiscriminate shuttering of entire agencies as well as the firings of many of the inspectors general and other critical employees without having a clue what those employees actually did in practise…many of those employees actually having due process protections which the government is now finding out in a very expensive way thanks to extensive litigation they’re on the losing end of far more often than not.
My personal favourite was the idiotic decision to fire a bunch of employees from the Dept of Energy and then desperately having to rehire them when it emerged they were the ones who were in charge of America’s nuclear arsenal which isn’t exactly off-the-shelf competency.
If I were one of them, I’d have told Trump and Musk that I’d be happy to come back for a few million dollars a year on a contract for life with an ironclad non-termination clause! 😉
“(b) Employees in or applicants for Schedule Policy/Career positions are not required to personally or politically support the current President or the policies of the current administration. They are required to faithfully implement administration policies to the best of their ability, consistent with their constitutional oath and the vesting of executive authority solely in the President. Failure to do so is grounds for dismissal.”
Executive Order 14171, Section 3, paragraph 17
How is this supposed to work in practise?
If you strip these employees of any due process protections, then there’s really nothing stopping a zealous supervisor or political appointee summarily firing the employee for perceived political disloyalty, whether it actually exists or is merely imagined.
This may well allow President Trump to claim that they’re not actually administering loyalty oaths to the President and his agenda but given what we saw happen with the mass firings that have been largely ruled illegal by the courts in multiple lawsuits, if this regulation and Executive Order are allowed to proceed…the message will be loud and clear that you’re expected to be loyal to the President and not necessarily your oath to the Constitution and faithful execution of the laws which President Trump has shown repeatedly that he has no interest in doing unless absolutely forced to.
Taking it one step further, if you successfully purge these now at-will employees, who do you think is going to replace them?
More than likely ones that are far less qualified but much more motivated by partisan considerations rather than faithfully executing the laws without fear or favour.
With that, the professionalism of the Federal civil service that started with the Pendleton Civil Service Act and was really brought into the modern age by the Civil Service Reform Act will be truly dead and the American people will once again be at the mercy of political stooges, hacks, and sycophants cloaking themselves in the flag and advancing purely partisan policies rather than doing what is best for the people of the United States.
President Jackson would be absolutely thrilled and anything that makes him happy is a very bad thing for the American people.
Just ask the Cherokee and other Native American tribes he forced onto the “Trail of Tears” where many of them died on the way to a land in Oklahoma Territory that was completely alien to them and their way of life!
Is There A Better Alternative?
I don’t think that anyone would reasonably argue that an elected President ought to have advisors and staff in the Executive Branch who are in general agreement with the President’s stated political agenda and be committed to helping see that agenda being implemented.
But we’ve already got that in Cabinet appointees and other officials who are confirmed on advice and consent of the Senate as well as the additional layers of the politically appointed bureaucracy that isn’t Senate confirmed and it’s their job to work with Congress and other relevant entities to see that the proper legislation is enacted to achieve the aims of the President the best they can in a system that divides the Executive from a Legislative branch with vastly different political constituencies and priorities.
Instead of mass firings intended to install fear in the workforce who somehow manage to survive the purges, OPM would be better served to actually try to understand the root causes of the resistance they perceive is such a problem.
There will certainly be extreme and incorrigible cases amongst the civil service of employees who haven’t cared about their job since before the turn of the millenium as there are in any large organisation but I’m thinking it’s likely they’re a relatively small minority of the population of the disgruntled civil servants at large.
Instead of wildly unfocused purges (for political loyalty or just cases of abject ignorance of what the employees actually do) or extremely insulting EMAILs like the one that Musk sent demanding a list of five accomplishments that OPM took several days to finally say that employees didn’t actually have to answer, OPM would be better served trying to understand the problems in their workforce and actually find productive solutions rather than the usual hand-waving and clutching of pearls but little actual change that’s accompanied every employee survey they’ve ever commissioned.
OPM so far hasn’t been serious at finding the root causes of employee dissatisfaction (which often have nothing to do with the political agenda of the President or anyone else) and they’ve been even less serious about addressing it.
Is it any wonder why there’s a palpable distrust of OPM and the higher echelons of the Executive Branch from the ones actually doing the work that were being terrorised by DOGE et al that have been judged illegal as well as several violations of “Prohibited Personnel Practices” and “Merit Systems Principles”?
But the right answer does not include stripping employees of due process rights that are just asking to be abused by an administration that has no problem being abusive.
If OPM truly finds Sections 43 and 75 to be “too onerous”, then the right answer (as noted by OPM itself prior to reversing itself to conform to President Trump’s political agenda) is to find ways that are legal to streamline the process of separating employees (particularly ones that are proven blatantly insubordinate, taking bribes, or just not doing the job) who are not interested or capable of performing at the standard the American people expect.
That may or may not require legislative changes by Congress and I’m sure that you’d find wide bipartisan support for targeted separations for the worst employees whilst also taking advantage of the other employees to find out how the nation’s business can be handled far more efficiently and still remain within the bounds of the law.
I’m not going to pretend this is at all easy. Actual professional management of human resources is rather akin to herding cats and your herd is three million strong.
Please do better and more humanely than you’ve done so far in this second Trump administration and that starts by rejecting this regulatory change and advising the President to adjust the Executive Order to something far more positive and productive if not scrap it entirely as the bad idea it really is.