Daniel Wiessner
(Reuters) – President Donald Trump signed an order hours after taking office on Monday to make it easier to fire thousands of federal agency employees and replace them with political loyalists. The order, which is largely identical to one Trump issued late in his first term, is already facing a lawsuit from a major labor union and is likely to spark new legal challenges.
WHAT DOES THE ORDER DO?
The vast majority of the more than 2.2 million federal government employees are career civil servants who are hired on merit and serve the government as a whole. Jobs in the civil service do not end at the end of the administration and civil servants can only be fired for cause.
During past presidential administrations, several thousand federal jobs were considered political appointments. Trump’s order creates a new, much larger category of federal employees called “Scheduling/Career Policy” who do not have the typical protections enjoyed by government employees and can be fired at will. It refers to jobs “of a confidential nature, which determine policy, create policy or advocate policy.”
For years, Trump has criticized the federal bureaucracy, which he calls the “deep state,” arguing that government employees are unaccountable because they are insulated from losing their jobs. The new order will give Trump the power to fire as many as 50,000 of those workers and replace them with political loyalists.
HOW CAN THE PRESIDENT EXEMPT WORKERS FROM THE CIVIL SERVICE?
Congress gave the president the power to exempt positions from the civil service when “necessary” and “as the conditions of good administration require.” In his order, Trump said the creation of the Scheduling/Career Policy is necessary to give agencies more flexibility and discretion in hiring. He said the order was in response to “numerous and well-documented cases of career federal employees resisting and subverting the policies and directives of their executive leadership.”
WHAT HAPPENED TO TRUMP’S FIRST ATTEMPT TO RECLASSIFY FEDERAL WORKERS?
Trump first floated the exemption in a 2020 executive order during his first administration, at the time calling it Schedule F. But Democratic former President Joe Biden rescinded the order in 2021, before workers were reclassified. Trump’s order immediately faced a legal challenge from the National Treasury Employees Union, which represents 150,000 employees at 37 federal agencies. The case was dismissed when Biden withdrew the warrant.
The NTEU filed its lawsuit again late Monday, arguing that the new order improperly strips federal workers of their due process rights and that Trump failed to explain why the new order was necessary, as required by federal law.
CAN THE ORDER TAKE EFFECT IMMEDIATELY?
Not. The Biden administration passed the 2024 rule intended as a bulwark against Trump’s resurrection of Schedule F. The rule says workers who are involuntarily exempt from government service retain the legal protections they’ve already earned and created a process for them to challenge their reclassification. The US Office of Personnel Management is expected to propose repealing the rule, a process that would take months or longer.
The order gives agency heads 90 days to conduct a preliminary review and 210 days to complete a full review of positions that could be moved to the new category.
CAN WORKERS SUE FOR EXEMPTION?
Unions will certainly file legal claims, but individual workers reclassified under the new order would have to go through an administrative process before the Merit System Protection Board, an independent three-member panel appointed by the president. Until the 2024 rule is repealed, workers who are reclassified could use a process created to appeal those decisions to the merit board.
Employees may claim that their jobs fall outside the scope of the Scheduling/Career Policy, that agencies violated their due process rights by failing to follow proper procedures, or that they were targeted for discriminatory reasons.
