Who Exactly CAN Trump Fire?
“You’re fired” is not a new phrase to hear from Donald Trump—After all, it was his mantra for years on the television series The Apprentice. Now, having been elected president for the second time, his goal is to utter the phrase across much of the federal government.
Using Elon Musk, Vivek Ramaswamy, and the new Department of Government Efficiency (“DOGE”), Trump is angling toward record-setting reductions in the size of the “swamp.” Just as important, he plans on reclassification of a host of career civil servants as the equivalent of political appointees.
The question is: Who exactly can Trump fire? It turns out that the answer is a bit complicated. It involves two statutes, two categories of employees, and a far-reaching declaration that Trump will issue as soon as he takes office.
First, some history.
Many of us recall from history class that President Andrew Jackson was infamous for exploiting what became known as the “Spoils System.” He awarded numerous government jobs to his supporters, friends, and relatives—as opposed to hiring individuals based on merit.
The practice exponentiated over the course of the 19th Century. In fact, before you conclude that only someone with a fiery character such as Trump would attempt to engage in such a practice en masse, consider that of the 1,520 federal employees in place in 1859, Lincoln removed no less than 1,457, or 96 percent.
Following the assassination of President James Garfield by a disgruntled job seeker, civil service reformers in Congress passed the Pendleton Act in 1883. The act provided that civilian federal jobs must be awarded on the basis of merit and that government employees be selected through a Civil Service Exam. The act also made it unlawful to fire or demote for political reasons those employees who were covered by the law.
Protected “competitive service” jobs vs. unprotected “excepted service” positions.
In 1978, President Jimmy Carter signed the Civil Service Reform Act (“CSFA”). The CSFA provides an important exception to the Pendleton Act. It allows the president to exempt positions from the protected “competitive service” category as “conditions of good administration warrant.” These carve-out positions form an “excepted service” category.
Currently, most excepted service positions are unique to specific agencies or to professions requiring specialized training: intelligence agencies, law enforcement employees, air traffic controllers, government physicians, and agency lawyers.
Politically appointed positions also are excepted service jobs. This includes presidential appointments requiring Senate confirmation (cabinet secretaries, agency heads, deputy secretaries, and the like) and senior personnel just below those confirmed officials. In addition, the CSFA exempts certain other high-level positions, such as senior White House aides and advisors.
Broadening the exceptions via “Schedule F.”
The excepted service classification is well known among those who follow such things. The CSRA, however, contains a historically little-noticed additional provision: Section 7511 exempts employees from civil service protections if their “position has been determined to be of a confidential, policy-determining, policy-making or policy advocating character.”
During his first term, Trump seized upon Section 7511 and formulated what is known as “Schedule F.” It added to the excepted service category literally all federal employees “in confidential, policy-determining, policy-making or policy-advocating positions.” Thus, all such employees could be fired by the president at will.
Schedule F, however, was not implemented while Trump was in office, and (no surprise here) President Biden immediately rescinded it. Trump has pledged to bring Schedule F back to life–reclassifying some 50,000 workers.
The roadblocks.
There will of course be a fight. As soon as Schedule F was published the first time, the National Treasury Employees Union filed suit. And we will see Schedule F lawsuits again. Further, the very regulatory morass that Trump seeks to obliterate could pose his biggest hurdle: In April 2024, the Biden administration promulgated a regulation to “reinforce and clarify longstanding civil service protections and merit system principles.” That means that, at a minimum, the Trump administration must issue and finalize a new regulation to replace the 2024 one, because presidents can’t overrule a final regulation by executive order. The rulemaking process usually takes months.
A workaround to regulatory delay is theoretically possible: The new administration could fast-track an “interim final rule.” Of course that interim rule will itself be challenged by the public employee unions, who no doubt will seek injunctions to prevent affected workers from losing their jobs while the litigation progresses.
Oh, and there’s this: In 1954, the U.S. Court of Appeals for the D.C. Circuit held that civil servants do not lose the protections afforded by the competitive service category when they are moved to the excepted service classification. Given these regulations and case law, Schedule F may not enable the firing of existing employees.
But what about the Constitution?
I am surprised at how few commentators have considered the question of how the legislative branch can dictate the employment terms of individuals in the executive branch. A theory called the “Constitutional option” holds that the president has power through Article II to dismiss any federal employee for any reason. Congress has the power of the purse and thus may determine how many employees exist within the executive branch, but how is the legislature controlling who can be fired by the executive branch any different than the president attempting to control who obtains jobs as Senate staffers?
In sum, Trump will certainly enact a new Schedule F, and a cast of thousands will certainly do all they can to delay its effectiveness for as long as the justice system will allow.
Stay tuned.
