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Discussion Starter · #1 ·
Not a Trump fan, but on the surface, this sounds like it could have been a very positive step forward for the country.



The Astonishing Implications of Schedule F
BY JEFFREY A. TUCKER JUNE 27, 2022 HISTORY, POLICY 8 MINUTE READ

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Two weeks before the 2020 general election, on October 21, 2020, Donald Trump issued an executive order (E.O. 13957) on “Creating Schedule F in the Excepted Service.”

It sounds boring. Actually, it would have fundamentally changed, in the best possible way, the entire functioning of the administrative bureaucracy that rules this country in a way that bypasses both the legislative and judicial process, and has ruined the checks and balances inherent in the US Constitution.
The administrative state for the better part of a century, and really dating back to the Pendleton Act of 1883, has designed policy, made policy, structured policy, implemented policy, and interpreted policy while operating outside the control of Congress, the president, and the judiciary.
The gradual rise of this 4th branch of government – which is very much the most powerful branch – has reduced the American political process to mere theater as compared with the real activity of government, which rests with the permanent bureaucracy.
Any new president can hire the heads of agencies and they can hire staff, which are known as political appointees. These 4,000 political appointees ostensibly rule 432 agencies (as listed by the Federal Register) as well as some 2.9 million employees (aside from the military and postal service) that effectively inhibit permanent jobs. This permanent state – sometimes called the deep state – knows the ropes and the processes of government far better than any temporary political appointee, thus reducing the appointed jobs to cosmetic positions for the press to hound while the real actions of government take place behind the scenes.
From 2020 and onward, the American people got to know this administrative state well. They ordered us to wear masks. They deployed their influence to close small businesses and churches. They limited how many people we could have in our homes. They festooned our businesses with plexiglass and told everyone to stay six-feet apart. They demanded two weeks of quarantine when crossing state borders. They decided which medical procedures were elective and non-elective. And they finally demanded compliance with vaccine mandates at the penalty of job loss.
None of this was ordered by legislation. It was all invented on the spot by the permanent staff of the Centers for Disease Control and Prevention. We had no idea they had such power. But they do. And that same power which allowed those egregious attacks on rights and liberties also belongs to the Food and Drug Administration, the Department of Labor, the Environmental Protection Agency, the Department of Agriculture, the Department of Homeland Security, and all the rest.
Donald Trump came into office with the promise of draining the swamp, without understanding entirely what that meant. He gradually came to realize that he had no control over most of the affairs of government, not because he had no patience for the legislative process but because he had no ability to terminate the employment of most of the civilian bureaucracy. Nor could his political appointees control it. The media, he gradually came to realize, echoed the priorities and concerns of this administrative state due to long-established relationships that led to nonstop leaks that spread false information.
In May of 2018, he took his first steps to gain some modicum of control over this deep state. He issued three executive orders (E.O. 13837, E.O. 13836, and E.O.13839) that would have diminished their access to labor-union protection when being pressed on the terms of their employment. Those three orders were litigated by the American Federation of Government Employees (AFGE) and sixteen other federal labor unions.
All three were struck down with a decision by a DC District Court. The presiding judge was Ketanji Brown Jackson, who was later rewarded for her decision with a nomination to the Supreme Court, which was affirmed by the US Senate. The prevailing and openly stated reason for her nomination was said to be mostly demographic: she would be the first black woman on the Court. The deeper reason was more likely traceable to her role in thwarting actions by Trump which had begun the process of upending the administrative state. Jackson’s judgment was later reversed but Trump’s actions were embroiled in a juridical tangle that rendered them moot.
Following the lockdowns of mid-March 2020, Trump became increasingly frustrated with the CDC and Anthony Fauci in particular. Trump was profoundly aware that he had no power to fire the man, despite his epicly terrible role in prolonging Covid lockdowns long after Trump wanted to open up to save the American economy and society.
Trump’s next step was radical and brilliant: the creation of a new category of federal employment. It was called Schedule F.
Employees of the federal government classified as Schedule F would have been subject to control by the elected president and other representatives. Who are they? They are those who met the following criteria:
Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition shall be listed in Schedule F. In appointing an individual to a position in Schedule F, each agency shall follow the principle of veteran preference as far as administratively feasible.
Schedule F employees would be fired. “You’re fired” was the slogan that made Trump TV famous. With this order, he would be in a position to do the same to the federal bureaucracy. The order further demanded a thorough review throughout the government.
Each head of an executive agency (as defined in section 105 of title 5, United States Code, but excluding the Government Accountability Office) shall conduct, within 90 days of the date of this order, a preliminary review of agency positions covered by subchapter II of chapter 75 of title 5, United States Code, and shall conduct a complete review of such positions within 210 days of the date of this order.
The Washington Post in an editorial expressed absolute shock and alarm at the implications:
The directive from the White House, issued late Wednesday, sounds technical: creating a new “Schedule F” within the “excepted service” of the federal government for employees in policymaking roles, and directing agencies to determine who qualifies. Its implications, however, are profound and alarming. It gives those in power the authority to fire more or less at will as many as tens of thousands of workers currently in the competitive civil service, from managers to lawyers to economists to, yes, scientists. This week’s order is a major salvo in the president’s onslaught against the cadre of dedicated civil servants whom he calls the “deep state” — and who are really the greatest strength of the U.S. government.
Ninety days after October 21, 2020 would have been January 19, 2021, the day before the new president was to be inaugurated. The Washington Post commented ominously: “Mr. Trump will try to realize his sad vision in his second term, unless voters are wise enough to stop him.”
Biden was declared the winner due mostly to mail-in ballots.
On January 21, 2021, the day after inauguration, Biden reversed the order. It was one of his first actions as president. No wonder, because, as The Hill reported, this executive order would have been “the biggest change to federal workforce protections in a century, converting many federal workers to ‘at will’ employment.”
How many federal workers in agencies would have been newly classified at Schedule F? We do not know because only one completed the review before their jobs were saved by the election result. The one that did was the Congressional Budget Office. Its conclusion: fully 88% of employees would have been newly classified as Schedule F, thus allowing the president to terminate their employment.
This would have been a revolutionary change, a complete remake of Washington, DC, and all politics as usual.
Trump’s EO 13957 was a dagger aimed directly at the heart of the beast. It might have worked.
It would have gotten us closer to the restoration of a Constitutional system of government in which we have 3 – not 4 – branches of government that are wholly controlled by the people’s representatives. It would have gone a long way toward gutting the administrative state of its power and returning the affairs of state to the people’s control.
The action was stopped dead due to the election results.
Whatever one’s view of Trump, one has to admire the brilliance of this executive order. It shows that Trump had come to understand the problem and actually innovate a fundamental solution, or at least the beginnings of one. The “deep state” as we’ve come to know it would have been curbed, and we would have taken a step toward recreating the system that existed before the Pendleton Act of 1883.
Many efforts have been deployed through the years to regain constitutional control over the permanent bureaucracy. An example is the Hatch Act of 1939 which forbids employees of the government to work for political campaigns. That act turned out to be toothless – one does not need to work for a campaign in order to skew one’s labor in the direction of always granting the federal government more power and control – and largely made irrelevant in the succeeding decades.
Trump came to office promising to drain the swamp but it was very late in his term before he figured out the means at his disposal to do just that. His final effort took place merely two weeks before the election that was decided in favor of his opponent Biden, who quickly reversed this action just two days following the deadline of an ordered review that would have reclassified, and thus gained control over, a sizable portion of the administrative state.
With Executive Order 12003 (“Protecting the Federal Workforce”), Biden saved the deep state’s bacon, leaving the efforts finally to drain the swamp to another day and another president.
Still, Executive Order 13957 exists in the archives as a possible path forward to restore checks and balances in the US system of government. A new Congress can also take such steps at least symbolically.
Until something takes place to restore the people’s control of the administrative state, a sword of Damocles will continue to hang over the entire country and we will never be safe from another round of lockdowns and mandates.
Should a genuinely reformist president ever take office, this executive order must be issued on the very first day. Trump waited too long but that mistake need not be repeated.


(See article for EO pages)
 

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Discussion Starter · #3 ·
Another one:


Imagine, if you will, the following system.

Government is managed by elected representatives who are in turn elected by the people. Government is further restrained by checks and balances between three branches, each of which is accountable ultimately to the people who live under the laws.

Unlike the ancient system of government in which the only people who were truly free were the aristocracy, under this new system, every adult citizen has political rights. No one rules over anyone without accountability.

Also part of this, no one in government has a permanent job that is exempt from oversight. The laws and rules under which people live are not invented by faceless bureaucrats but rather by representatives with names who can be voted out.

In that way, we give the idea of freedom the best-possible hope.

Sounds dreamy? A bit. We haven’t had that system in the US for a very long time, even if what I just mapped out seems more or less like what the US Constitution set up.

There are two main reasons why we are so far from that ideal.

First, the US system was supposed to exalt the juridical sovereignty of the “several states” so that the central government was of secondary importance.

Second, a fourth branch of government gradually came into existence. It is what we now call the administrative state. It consists of millions of employees with maximum power who answer to absolutely no one. The Federal Register lists 432 agencies that currently employ people who are beyond legislative reach but they still make policy and determine the structure of the regime under which we live. But we the people have no real control over them.

Not even the president can control them. This system was created with one piece of legislation in 1883 called the Pendleton Act. The New Deal exploited the new system. The administrative state even got its own constitution in 1946 called the Administrative Procedures Act. The 1984 Supreme Court decision in Chevron vs NRDC even entrenched deference to the agency’s interpretation of the law.

The result is something the Founders never imagined: hundreds of three-letter agencies exercising hegemonic control over the country. Everyone got to know this system well from 2020 as the CDC invented myriad rules on the spot that shut businesses and churches and even legislated how many people you could have in your home for a party.

This problem vexxed Donald Trump, who came to power with the promise to drain the swamp. He soon discovered that he could not because most federal employees were beyond his reach. Things got wildly out of hand after he made the enormous error of greenlighting lockdowns in a March 16, 2020 press conference. After that point and all the way until the election, his presidential powers slipped ever further as the administrative bureaucracy wielded power without precedent.

Two weeks before the election, the Trump administration innovated a solution. It was Executive Order 13957 that created a new category of federal employment called Schedule F. Any employee involved at any level in political making would be subject to presidential oversight. It makes sense: these are executive-level agencies so the president, because he bears responsibility for what they do, should have some personnel control over them.

This order was immediately reversed by Biden when he took office, leaving Schedule F a dead letter. The administrative state is once again safe from oversight.

Let us quote Trump’s executive order at length so that we can see the thinking here. Then we’ll deal with various objections. It reads as follows:

To effectively carry out the broad array of activities assigned to the executive branch under law, the President and his appointees must rely on men and women in the Federal service employed in positions of a confidential, policy-determining, policy-making, or policy-advocating character. Faithful execution of the law requires that the President have appropriate management oversight regarding this select cadre of professionals.
The Federal Government benefits from career professionals in positions that are not normally subject to change as a result of a Presidential transition but who discharge significant duties and exercise significant discretion in formulating and implementing executive branch policy and programs under the laws of the United States. The heads of executive departments and agencies (agencies) and the American people also entrust these career professionals with non‑public information that must be kept confidential…
Given the importance of the functions they discharge, employees in such positions must display appropriate temperament, acumen, impartiality, and sound judgment.
Due to these requirements, agencies should have a greater degree of appointment flexibility with respect to these employees than is afforded by the existing competitive service process.
Further, effective performance management of employees in confidential, policy-determining, policy-making, or policy-advocating positions is of the utmost importance. Unfortunately, the Government’s current performance management is inadequate, as recognized by Federal workers themselves. For instance, the 2016 Merit Principles Survey reveals that less than a quarter of Federal employees believe their agency addresses poor performers effectively.
Separating employees who cannot or will not meet required performance standards is important, and it is particularly important with regard to employees in confidential, policy-determining, policy-making, or policy-advocating positions. High performance by such employees can meaningfully enhance agency operations, while poor performance can significantly hinder them. Senior agency officials report that poor performance by career employees in policy-relevant positions has resulted in long delays and substandard-quality work for important agency projects, such as drafting and issuing regulations.
Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures. Placing these positions in the excepted service will mitigate undue limitations on their selection. This action will also give agencies greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment, and ability to meet the particular needs of the agency. These are all qualities individuals should have before wielding the authority inherent in their prospective positions, and agencies should be able to assess candidates without proceeding through complicated and elaborate competitive service processes or rating procedures that do not necessarily reflect their particular needs.
Conditions of good administration similarly make necessary excepting such positions from the adverse action procedures set forth in chapter 75 of title 5, United States Code. Chapter 75 of title 5, United States Code, requires agencies to comply with extensive procedures before taking adverse action against an employee. These requirements can make removing poorly performing employees difficult. Only a quarter of Federal supervisors are confident that they could remove a poor performer. Career employees in confidential, policy-determining, policy‑making, and policy-advocating positions wield significant influence over Government operations and effectiveness. Agencies need the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation.
Part of the order pushed an internal review of all agencies to reclassify employees, thus making them subject to normal standards of employment – the same ones that every person in the private sector adheres to.

Why is there resistance aside from the high-stakes effort to keep the current despotism in place? Let’s look at the sincere objections.

Schedule F would bring back the spoils system

The term itself is a smear of system in which the elected leadership can actually make a difference in public life. Are cronies hired? Yes. Are good people sometimes fired? Probably. But the alternative is dictatorship by the bureaucracy itself and that is what is truly intolerable. Instead of the “spoils system,” a state in which the elected leaders can enact policy by controlling personnel is called representative democracy. It is also the system the Constitution gave us.

Trump issued Schedule F because he wanted more power

Depends on what you mean by more power. More power over the bureaucracy, yes, but the driving motivation here was to emancipate power from being ruled by bureaucrats that he could not control. It was also designed to stop the bureaucracy from working directly with the media to undermine through lies and smears the work of the administration. In words, elected leaders absolutely do need more power over the deep state.

This would gut government of expertise

There is this strange presumption that educational credentials and a permanent job equals expertise plus good outcomes. That is very obviously untrue. Good outcomes come from basic competence and a work ethic. Those are in short supply in government precisely because the turnover rate is less than zero, unlike the private sector. Anyone who has worked in a federal agency knows this. The best way to unleash genuine expertise is through normal job accountability.

Presidents would use this to politicize the bureaucracy

This is a decent point but the bureaucracy is already heavily politicized, and always in the direction of policies that push more power and money toward the government. Everyone knows this. Is there a danger that a radically and dangerous president would press bureaucrats into even further politicization? Yes, but there is an easy solution to this one: cut the reach and power of the agencies themselves, consistent with the Constitution. Finally – a crucial point – elected leaders could override the influence of private industry which has captured their operations.

Bureaucracies would get around this by minimizing Schedule F designations

They would certainly attempt this but that would require that employees refrain from ”policy-determining, policy-making, or policy-advocating positions.” That would be very great! If they eschewed Schedule F and did that anyway, the Office of Personnel Management could hunt them down and the agency itself would be responsible for illegal actions.

There are surely some downsides to the system as Trump imagined it but all of them trace to the inflated powers of the federal government itself. Yes, a vastly ambitious government machinery will always need bureaucracies and they will always have problems with waste, abuse, and unneeded exercise of power. Perhaps, then, the best long-term effect of Schedule F would be to inspire a rethinking of government’s role in a free society.

It seems remarkable that the executive order creating Schedule F was issued at all. It needs to be pressed upon any future reformers as a path to revisit, ideally with legislative support. Until that time, there will continue to be the grave problem that our elected officials are positioned to be little more than dancing marionettes while the administrative state wields all the real power.
 
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