Personnel is policy”—the old saying seems truer than ever. An administration’s choice of agency personnel can have huge effects on its eventual policies. And, accordingly, administrations are keener than ever to make policies about personnel.
In April, the White House’s Office of Personnel Management (OPM) issued a final rule on civil service protections and the federal workforce. 89 Fed. Reg. 24982 (Apr. 9, 2024). OPM’s rule occasioned an official statement from President Biden, who said that it would protect “2.2 million career civil servants from political interference, to guarantee that they can carry out their responsibilities in the best interest of the American people.”
The rule was widely recognized as an effort to deter or delay a future administration from reinstituting President Trump’s 2020 policy, known as “Schedule F,” which withdrew civil service protections from midlevel agency personnel whose duties are of a “confidential, policy-determining, policy-making, or policy-advocating character.” Exec. Order 13957 (2020). By initial estimates, this might have affected 50,000 of the 2,000,000-plus federal employees in the civil service, though the National Treasury Employees Union has argued that the number could be higher.
President Biden repealed the Schedule F order in his first days in office. Exec. Order 14003 (2021). But the OPM rule, enacted with a notice-and-comment process, is an attempt to “effectively Trump-proof the civil service with a new regulation,” as the New York Times reported when OPM first proposed the rule.
For what it’s worth, it’s not clear to me that putting the new OPM rule through notice-and-comment actually impedes a future administration from immediately reimposing the policy. Another White House could repeal the rule as quickly as it was proposed—that is, within just a few months—and might even start the process with an Interim Final Rule. Or perhaps a future White House will argue that OPM’s personnel policy can be repealed without notice-and-comment at all, given the Administrative Procedure Act’s explicit caveat that the notice-and-comment requirements do not apply to any “matter relating to agency management or personnel.” It would be interesting to see that argument play out in court.
But as much as members of this section might relish procedural hypotheticals, surely the substantive issues are more interesting and important. And here, too, the issues deserve serious reflection and analysis.
Over the last few years, I’ve enjoyed many roundtables and debates over the Schedule F policy, especially some thoughtful conversations with people on both sides of the arguments. But in all of these conversations, the vast majority of the arguments have not been about Schedule F’s text per se, but rather the animating forces behind Schedule F, and what they might portend for future efforts to roll back civil service protections, or to politicize or intimidate civil servants.
I don’t think I’ve seen an explanation why civil servants who actually do have “policy-determining, policy-making, or policy-advocating” positions should not have greater direct accountability to President-appointed, Senate-confirmed agency leadership. More common, I think, is the assertion that civil servants simply don’t have such powers.
That’s how I read the Biden White House’s OPM rule, for example: citing the federal law that originates the “policy-determining, policy-making, or policy-advocating” phrase, 5 U.S.C. § 7511(b)(2). OPM concludes that those words describe only “political appointees who serve as confidential assistants and advisors to the President and other politically appointed officials who have direct responsibility for carrying out the Administration’s political objectives,” but not any “career employees” within the agencies. 89 Fed. Reg. at 25020. OPM’s proposed rule rooted this approach in Elrod v. Burns, 427 U.S. 347 (1976), suggesting in Elrod that “[t]he Court explained that ‘a nonpolicymaking, nonconfidential government employee’ cannot be ‘discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.’”
But which way does this argument cut? If it can be shown that a particular position with an agency’s civil service actually is not “nonpolicymaking” because it does have a policymaking role, then does that fact refute the new OPM rule’s analysis? Do Schedule F’s critics need a more robust argument for insulating policymakers from political oversight?
For those who are puzzling through these issues, let me suggest two particularly even-handed and nuanced essays. First: Francis Fukuyama’s recent contribution to the Asia Pacific Journal of Public Administration. Under a provocative headline—“In Defense of the Deep State”—Fukuyama thoughtfully connects the Schedule F debates to not just his studies of administration in the United States and abroad, but also to broader questions of social trust. See 46 Asia Pac. J. of Pub. Admin. 1 (2024).
Second: Ron Cass’s new essay, “Thoughts on Civil Service: A Tale of Two Civils,” which he published in the Policy Briefs series at the C. Boyden Gray Center for the Study of the Administrative State. (When it comes to the Gray Center, I am admittedly no neutral observer.) Drawing from his family’s personal history, his own experience in government, and his study of constitutional and administrative institutions, Cass sketches a general framework for thinking through the relevant policy goals and constitutional principles.
Both essays are well worth reading, exemplifying the authors’ thoughtful, nuanced styles. And both Cass and Fukuyama connect the civil service debates to the sheer breadth of powers that have been delegated by Congress to the administrative state.
My own instinct, for whatever it’s worth, tends toward increasing political accountability for federal officials who have “policy-determining” or “policy-making” responsibility, particularly in light of the delegation problem. (Schedule F’s latter category—“policy-advocating”—might require a somewhat different analysis, depending on what that nebulous category actually entails.) But for positions without any policy-affecting powers or responsibilities, we should hesitate before cavalierly asserting that the Pendleton Act of 1883 should be simply erased by an act of Congress, let alone by an executive order. The president’s executive power and his constitutional responsibility to take care that the laws be faithfully executed, and the removal power that has been rooted in them, is not necessarily at odds with the Pendleton Act—as Chief Justice Taft himself emphasized in Myers v. United States, 272 U.S. 52 (1926).
As I noted at the outset, these issues seem especially salient today, and not just because of Judge James C. Ho’s recent concurring opinion on the constitutional questions around civil-service protections. Consumers Research v. CPSC, 98 F.4th 646, No. 22-40328 (5th Cir. Apr. 16, 2024) (Ho, J., dissenting). But these issues also go to the root of American constitutional government. Leonard White’s seminal study of early administration details President Washington’s own sense of personnel and public responsibility, from Cabinet officers all the way down throughout his administration, and in his judicial appointments. Leonard D. White, The Federalists: A Study in Administrative History 253-66 (1948).
As we continue to think through these issues, I’d recommend two last readings. First, read President George H. W. Bush’s January 26, 1989 remarks to the Senior Executive Service. In his first week in office, he took time to thank the nation’s leading civil servants and to emphasize that all of them—the president and agency employees alike—are ultimately the people’s servants. “I have a conservative vision of government,” he said, “[a]nd I see no strain or tension between those values and the values of a professional civil service whose highest principle is one of patriotism, whose experience and expertise is in itself a national resource to be used and respected.”
Second, and much more recent, I’d recommend Recoding America: Why Government Is Failing in the Digital Age and How We Can Do Better, by Jennifer Pahlka, who served as President Obama’s deputy chief technology officer. There surely is much that Jen Pahlka and I would disagree about when it comes to substantive policies or regulatory procedures. But I admire her efforts to take a hard look at modern government sclerosis and to offer clear recommendations for reforming and modernizing the administrative state.
All the best,
Adam White
