Inside the Implementation of Schedule Policy/Career

Immediately following his second inauguration, President Trump signed an executive order establishing “Schedule Policy/Career,” which promised to strip approximately 50,000 employees in positions of a “confidential, policy-determining, policy-making, or policy-advocating” character of their tenure protections. The order also authorized the removal of employees who failed to “faithfully implement administration policies to the best of their ability.” Schedule Policy/Career effectively revived and rebranded a similar policy—Schedule F—from the first administration. Scholars including Catherine Fisk, Don Moynihan, and I have warned that Schedule Policy/Career threatens to politicize the federal workforce in ways not seen since the “spoils system” of the 19th century.

Since Schedule F was first created, the central question has been: Which positions will be transferred to it? Records obtained by the National Treasury Employees Union provided a glimpse into which positions the Office of Management and Budget sought to transfer to Schedule F during the first administration, but few other agencies submitted lists to the Office of Personnel Management (OPM). In February, OPM’s final rule painted a broad picture of the kinds of positions that might qualify for Schedule Policy/Career. Nevertheless, full implementation required President Trump to issue an executive order announcing which positions would be covered.

On June 3, President Trump issued an executive order with an accompanying 229-page appendix of positions transferred to Schedule Policy/Career. The order transfers approximately 8,000 employees in over 4,800 positions to Schedule Policy/Career. Many—but not all—of these positions have some supervisory role. Ultimately, the true effect of Schedule Policy/Career will depend on the litigation currently working its way through the federal courts.

Positions Transferred to Schedule Policy/Career

For the most part, the latest Schedule Policy/Career order repeats the standard arguments advanced in its favor. Legally, the order cites long-standing statutory authority of the president to exempt positions from portions of the civil service laws. Normatively, it argues that stripping these employees of tenure protections is “essential to protecting democratic self-government by an elected President.” The most important part of the order, however, is the 229-page appendix listing the positions that will be transferred to Schedule Policy/Career.

OPM Director Scott Kupor told reporters that the order transfers approximately 8,000 employees to Schedule Policy/Career. According to Kupor, 97 percent of the positions are at or above the GS-15 level, the highest grade on the General Schedule pay scale. The order also transfers some GS-13 and GS-14 employees, mostly those working within the Office of Management and Budget. This initial order transfers significantly fewer employees to Schedule Policy/Career than the 50,000 initially estimated.

Which agencies and positions were most impacted by Schedule Policy/Career? To answer this question, I created a dataset of the titles and position description numbers listed in the order’s appendix. The appendix lists over 4,800 positions within 54 major agencies. Note, the number of positions is not the same as the number of employees, because multiple employees may occupy the same position.

Figure 1 illustrates the number of positions transferred to Schedule Policy/Career by each agency. The five departments with the greatest number of transfers include Defense, Homeland Security, Health and Human Services, Treasury, and Commerce. The ordering of agencies roughly corresponds to the size of their overall workforces, but there are some notable exceptions. The Office of Management and Budget transferred 137 positions within its workforce of 518 employees. By contrast, the Department of Agriculture transferred only 81 positions within a workforce of over 74,000 employees. Consequently, some agencies appear to have transferred at least a quarter of their workforces while other agencies have transferred less than one percent of their workforce.

Figure 1

View the chart in a new browser window here.

Figure 2 provides a word cloud of the titles of the positions transferred. The most prominent words describe managerial roles, such as “supervisory,” “manager,” and “director.” Other words focus on policy or budget analysis. The appendix also transferred a significant number of attorneys and human resources (HR) professionals to Schedule Policy/Career. Many of these positions, however, are concerned with internal management, such as procurement, HR, and budgets, rather than substantive policymaking. Overall, the list appears much more focused on internal agency operations rather than the sorts of policy determination for which the statute authorizes exemptions. Deepening presidential control over these managerial roles makes it easier to control the day-to-day activities of career employees, which is the ultimate goal of Schedule Policy/Career, as stated by the various orders and rules creating it.

Figure 2.

A more careful examination of the order’s appendix suggests that Schedule Policy/Career was not limited to supervisory and managerial positions. Many scientific positions appear within the appendix. The Centers for Disease Control and Prevention, for example, transferred epidemiologists, health scientists, physicians, and public health advisers. It is unclear on the face of the appendix what sorts of policymaking tasks—if any—that employees in these positions inform.

One should exercise caution in reading the titles affected by Schedule Policy/Career. The inclusion of a particular title does not mean that everyone in the agency with that title was transferred. The Department of Justice, for example, employs more than 10,000 attorneys, which exceeds the total number of employees transferred to Schedule Policy/Career across the entire government. Nevertheless, the general inclusion of attorneys and other positions aids in identifying which positions might be threatened by future expansions. This executive order likely captures the first set of positions transferred to Schedule Policy/Career—not the last.

What Next?

Now that the Trump administration has fully implemented Schedule Policy/Career, what happens next? Agencies have seven days to complete the transfer of these positions. The first thing to watch is whether any employees in these positions are immediately removed. Immediate and unexplained removals would confirm commentators’ worst fears about Schedule Policy/Career.

At the same time, the executive branch may proceed cautiously given the large volume of ongoing litigation related to Schedule Policy/Career. Public Employees for Environmental Responsibility, American Federation of Government Employees, National Treasury Employees Union, and the Government Accountability Project have all filed lawsuits challenging Schedule Policy/Career. Most of this litigation has been pending the transfer of positions to Schedule Policy/Career. Now that President Trump has formally transferred some positions, the stay will be lifted and litigation will proceed.

The ongoing litigation may explain why the Trump administration took a conservative posture and transferred so few positions to Schedule Policy/Career, compared to what it initially promised. One major dispute in these cases concerns the meaning of positions of a “confidential, policy-determining, policy-making, or policy-advocating” character. By initially limiting Schedule Policy/Career to supervisory positions, the Trump administration may argue that it has stayed within the plain meaning of the statute. By securing a favorable ruling today, the Trump administration may have an easier time transferring positions more tenuously linked to the statutory text in the future.

Regardless of whether the Trump administration wins the statutory arguments, the plaintiffs in these cases have raised serious constitutional and administrative law arguments. Transferring career employees with tenure protections to Schedule Policy/Career presents a colorable violation of the Due Process Clause of the Constitution because it deprives them of a property interest (that is, their tenure protections) without notice and a hearing. Moreover, OPM’s final rule implementing Schedule Policy/Career ignored and misrepresented many of the 94 percent of more than 40,000 comments that opposed the rule. While these arguments will hopefully persuade lower courts to enjoin Schedule Policy/Career, plaintiffs’ arguments will face greater scrutiny and hostility at the Supreme Court.

No one should view the Trump administration’s decision to transfer so few positions as a “win” for career employees. Although it is plausible that the Trump administration has decided to limit the reach of Schedule Policy/Career, that seems unlikely given OPM’s recent final rule and its original estimate that President Trump would transfer at least 50,000 employees to Schedule Policy/Career. Instead, the Trump administration has likely chosen a strategic set of employees in hopes of advancing a favorable litigation position.