OPM: President Trump Has Authority to “Nullify” Regulations Protecting Civil Servants
It’s full steam ahead for the Trump Administration’s efforts to reclassify a large number of civil servants as at-will employees.
The Office of Personnel Management (OPM) released guidance on how to implement the president’s executive order, Restoring Accountability to Policy-Influencing Positions Within the Federal Workforce, which is a more muscular version of the so-called “Schedule F” from President Trump’s first term.
In that guidance, OPM addressed regulations that the Biden Administration put in place to protect civil servants in the event of a return of Schedule F. OPM said that the president has the authority to “directly nullify” such regulations.
“In Restoring Accountability, President Trump used his authority under the Constitution and 5 U.S.C. §§ 3301 and 3302 to directly nullify these regulations,” wrote OPM acting Director Charles Ezell.
The move to nullify the regulations stunned some longtime federal policy experts, including Don Kettl, former Dean of the University of Maryland School of Public Policy, who says the move shows the administration wants to pick a fight.
“The easy way would have been the issuance of an interim final rule doing all of this stuff immediately but still abiding the process through the Administrative Procedure Act (APA). They chose the harder way, I believe, because they want to make that clear assertion—separate from the APA issues and everything else—about the president’s fundamental power, and challenge everyone who disagrees with them to battle them in court,” Kettl told GovExec.
Timeline for Lists of Policy-Related Jobs
The new executive order creates a new Schedule Policy/Career in the excepted service for positions that are of a confidential, policy-determining, policy-making, or policy advocating character (policy-influencing positions) and filled by individuals not normally subject to replacement or change as a result of a Presidential transition.
The guidance says agencies may immediately start compiling lists of policy-related jobs. The initial deadline is April 20, 2025, for agencies to submit initial positions to reclassify workers outside of the competitive service.
The guidance also calls for a second executive order later this spring to “effectuate the transfers.”
OPM also tried to fend off criticism that the move amounts to a return to the 19th century spoils system, by noting that the new EO says federal workers cannot be removed for failing to support a particular president or political party.
“They 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. Failure to do so will be grounds for dismissal,” the order says.
Nevertheless, there are major concerns on how this will impact workforce morale.
Sharon Parrott, head of the Center on Budget and Policy Priorities and a former Office of Management and Budget (OMB) appointee under President Obama, told Axios the moves “will almost surely lead many expert knowledgeable career civil servants to withhold their best advice.”
Federal Labor Groups Sue
Federal labor groups are fighting the order with legal action. Among them, the American Federation of Government Employees (AFGE) and the American Federation of State, County and Municipal Employees (AFSCME) which joined forces to file suit, claiming that President Trump exceeded his authority in rolling back an OPM regulation designed to protect civil servants.
“Our union was born in the fight for a professional, non-partisan civil service, and our communities will pay the price if these anti-union extremists are allowed to undo decades of progress by stripping these workers of their freedoms,” said AFSCME President Lee Saunders.
