Civil Service Protections in the Trump Administration

At the end of his prior administration, President Trump tried to overhaul the federal workforce by making it easier to remove a substantial number of federal employees. With his incoming administration, President-elect Trump may try to do so again. Though Presidents have broad authority over federal employees, these renewed efforts may face new legal challenges because of a recent Biden Administration rule specifically intended to prevent a rollback of civil service protections. Importantly, the rule itself recognizes federal employees' long-standing reliance interests in their jobs that could make rescinding the new rule particularly difficult.

To go back to the end of the previous Trump Administration, on October 21, 2020, President Trump issued an "Executive Order on Creating Schedule F in the Excepted Service." That order created a new Schedule F for "[p]ositions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of Presidential transition." Simply put, it would have allowed the President to treat some career civil servants as political appointees and exempt them from Civil Service Rules and Regulations, including protections from removal, thereby giving the President expanded authority to remove federal employees at will.

Though President Trump's order never went into effect, the Biden Administration nonetheless finalized a rule on April 4, 2024, that clearly responded to it. That rule, titled "Upholding Civil Service Protections and Merit System Principles," "clarifies and reinforces longstanding civil service protections and merit system principles[.]" Interestingly, the rule's preamble directly addresses a situation where "a future Administration," such as the incoming Trump Administration, "seeks to rescind this rule and replace it with [Schedule F]." The preamble goes on to read as a roadmap of the significant hurdles rollback efforts would face. With that framing in mind, the rule explains that a future Administration, in complying with the Administrative Procedure Act ("APA"), would need to:

• "[E]xplain how the new policy is consistent with the carefully crafted legislative balance that Congress struck in the [Civil Service Reform Act];"

• "[S]et forth reasons for why it is departing from [Office of Personnel Management's] prior determination, reconfirmed here, that creating a new schedule for at-will employees who are not political employees-similar to Schedule F-is inconsistent with that balance;"

• "[J]ustify the departure from the fundamental principle that career Federal employees' tenure should be linked to their performance rather than to the nature of their position;"

• "[A]ddress whether that departure is consistent with the accrued property interests of employees, the settled expectations of career Federal employee's tenure, and the decision individuals have made in response;"

• "[E]xplain why any novel definition of 'confidential, policy-determining, policymaking, or policy-advocating character' is consistent with the [Civil Service Reform Act];"

• "[D]iscuss why that novel definition is being adopted even though it departs from long-established understandings-reconfirmed in this preamble-of what that phrase means; and explain how a new policy would (1) ensure that new hires formerly required to go through the competitive hiring process have the knowledge, ability, expertise, and skills necessary to work effectively; (2) adequately protect career Federal employees against potential political retaliation or coercion; and (3) make certain that critical positions in the federal workforce currently and ably held by career Federal employees will continue to function even if they may be replaced by individuals regardless of qualification or suitability."

It bears emphasizing that the Biden Administration cannot impose additional procedural requirements for rescinding its own rule on the Trump Administration-such requirements come from the APA. Still, the preamble effectively emphasizes some of the challenges the Trump Administration would likely face in rescinding this rule under current law.

Notably, under F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009), there is an argument that several of the questions presented in the preamble to the Biden Administration's rule must be addressed as part of promulgating any new rule. In that case, the Supreme Court stated that "an agency may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books." And it went on to explain that while an agency "need not always provide a more detailed justification" for the new policy: "Sometimes it must-when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy had engendered serious reliance interests that must be taken into account." On this last consideration in particular, litigants may point to the Biden rule's recognition of the reliance interest that federal employees may have in their civil service protections, giving further credence to the expectation that efforts to dramatically overhaul the federal workface could meet serious legal challenges. As emphasized in the Biden rule's preamble, if the Trump Administration decides to pursue action through an Executive Order or promulgate a new rule, either way it will likely have to answer difficult questions as part of notice and comment and the rule making process that may prove burdensome and will almost certainly create opportunities for litigation. Regardless, discussions around attempts to substantially change the federal workforce will no doubt continue as the new administration takes shape, and questions around the legal authority to implement those sweeping changes will persist along with them.