The Constitutionality of the Civil Service

Over the past year, the Trump administration has maintained that federal employees “must be accountable to the President, who is the only member of the executive branch, other than the Vice President, elected and directly accountable to the American people.” The administration equates accountability with the power to remove individuals within the executive branch. That conception of accountability sits uneasily with the structure of the modern civil service, where most federal employees enjoy tenure protections that insulate them from removal for arbitrary or political reasons. Section 7513 of Title 5 provides that an agency may remove an employee “only for such cause as will promote the efficiency of the service.” Scholars of political science and public administration widely regard tenure as foundational to modern governance and the growth of administrative capacity. By limiting politically motivated removals, tenure helps attract and retain experienced and expert professionals within the federal workforce.

The Trump administration has sought to limit the tenure afforded to career employees. At the outset of his second term, President Trump reclassified positions of “confidential, policy-determining, policy-making, or policy-advocating character” into a new schedule of the excepted service: Schedule Policy/Career. Civil service laws deny employees in such positions tenure protections. As a result, Schedule Policy/Career is expected to convert at least 50,000 federal employees to at-will employment status. The rule’s description of which positions qualify for reclassification, however, suggests that the number of affected employees may be substantially higher. 

The Office of Personnel Management (OPM) recently published its 255-page final rule implementing Schedule Policy/Career. Much of the rule’s legal reasoning and policy justification closely tracks the proposed rule, but there is much to criticize:

• 94 percent of the 40,500 comments opposed the regulation, yet the agency adopted the rule in substantially similar form.
• The OPM misrepresents a large body of social science research and dismisses comments from social scientists who sought to correct the record. 
• The OPM claims that President Trump possesses no animus toward them and, in fact, has “praised and lauded Federal employees as a whole, including in public proclamations.”
• The OPM concludes that fears that “the President will fire Schedule Policy/Career employees regardless of performance or conduct as he supposedly did to probationary employees” are “misplaced.” Yet the president has retaliated against federal employees for their familial relationships and “insufficient loyalty.” 

One could devote their entire career to evaluating each empirical claim advanced by the OPM, its characterization of history, and its representation of law. That task will necessarily be undertaken by attorneys and interested parties in the inevitable litigation. Don Moynihan has taken the first stab at surveying some of the most glaring problems. 

Lurking within the final rule, however, is a constitutional theory about the degree of control the president can exercise over the federal workforce. The rule stops short of asserting that tenure protections are unconstitutional across the entire federal workforce, but its text reveals how far the Trump administration believes unitary executive theory extends. If accepted, that theory would upend nearly 150 years of civil service law and Supreme Court precedent.

The Constitution and the Civil Service

The Constitution is silent on the selection and removal of federal employees. The Necessary and Proper Clause of Article I provides that Congress will “make all Laws which shall be necessary and proper carrying into Execution” of the Constitution and the laws enacted by Congress. The Appointment Clause of Article II authorizes the president to appoint principal officers with the advice and consent of the Senate. It further permits Congress to vest the appointment of inferior officers “in the President alone, in the Courts of Law, or in the Heads of Departments.” No provision discusses what the Supreme Court has called “mere employees.” Competing academic theories explain how these clauses should be read as conferring authority to structure the civil service on either Congress or the president. 

The civil service has developed within an ecosystem of Supreme Court precedent that affirms tenure for inferior officers and employees. The Supreme Court has long described the power to remove as incident to the power to appoint. In United States v. Perkins, the Court explained that “when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest.” Although subsequent decisions have expanded the president’s authority to remove principal officers, the Court has continued to cite Perkins for the proposition that Congress may impose removal restrictions on inferior officers and employees.

Additional foundations for tenure have emerged from the Supreme Court’s precedent on the constitutional rights of public employees. In Cleveland Board of Education v. Loudermill, the Supreme Court held that public employees who enjoy tenure are entitled to a pretermination hearing under the Due Process Clause. In Rutan v. Republican Party of Illinois, the Supreme Court held that the First Amendment prohibited public employers from discriminating based on partisanship except for “those jobs for the performance of which party affiliation is an ‘appropriate requirement.’” The holdings of Loudermill and Rutan share similarities with the Civil Service Reform Act’s (CSRA’s) merit system principles, its prohibited personnel practices, and the procedures that govern the removal of career employees.

Chief Justice John Roberts, however, opened a potential path for the Trump administration to challenge the constitutionality of certain civil service positions in Seila Law LLC v. Consumer Financial Protection Bureau. Writing for the Court, Roberts characterized the Supreme Court’s precedent as recognizing an exception to the president’s removal power only for “inferior officers with limited duties and policymaking or administrative authority.” This characterization derives from Morrison v. Olson, which upheld removal protections for the independent counsel. Although Morrison described the independent counsel as “lacking policymaking or significant administrative authority,” the office nonetheless exercised “full and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.” The Supreme Court has not addressed whether Roberts’s dicta should be understood as narrowing Perkins and Morrison. Nor has it explained which positions actually exercise “policymaking or administrative authority.”

Removal Protections for Inferior Officers

In the final rule implementing Schedule Policy/Career (and elsewhere), the OPM has seized on Seila Law to challenge the constitutionality of removal protections for federal employees. Throughout the final rule, the OPM references the president’s Article II authority to manage the federal workforce. Beginning around page 174, the OPM asserts that “[c]onstruing the CSRA to prevent the President from dismissing [inferior officers with substantive policymaking or administrative authority] at-will would contravene Article II’s vesting executive power in the President.” In other words, the OPM contends that the Constitution compels its interpretation of the CSRA and the adoption of Schedule Policy/Career; absent that reading, the statute would be unconstitutional.

The OPM’s theory of Article II relies on two propositions. The first proposition is that Congress may not constrain the president’s ability to remove individuals who exercise “substantive policymaking or administrative authority.” This assertion relies on Roberts’s dicta in Seila Law.

The second proposition is that most federal employees are inferior officers who exercise substantive policymaking or administrative authority. The OPM characterizes a broad class of middle managers, attorneys, and administrative adjudicators as inferior officers whose tenure protections are constitutionally suspect. In the final rule, the OPM singles out district, area, field, and local office directors with the Equal Employment Opportunity Commission as paradigmatic examples. The OPM emphasizes that these officials exercise significant authority because they “serve notices of charges, make a final determination of reasonable cause, negotiate and sign conciliation agreements, negotiate settlements, withdraw charges, issue no-cause determinations, and issue notices of right to sue.” 

The OPM advances a similar argument with respect to the National Labor Relations Board’s regional attorneys, whom it characterizes as inferior officers subject to at-will removal because they possess “direct statutory authority to bring—or decline to bring—civil actions seeking injunctive relief in Federal court for specific violations of the law.” Elsewhere, however, the OPM asserts that Schedule Policy/Career does not “target attorneys.” That assurance is difficult to square with the OPM’s claim that attorneys engaged in “activities such as reviewing, editing, or drafting regulations”—even when they do not set substantive policy—may nonetheless qualify for reclassification. Moreover, the OPM argues that “deciding on the arguments the Government will advance (or not)” constitutes policymaking. Although the OPM maintains that “only a minority of attorneys are likely to be reclassified into Schedule Policy/Career,” this expansive conception of policymaking would seem to make most attorneys eligible for reclassification.

Regardless of whether agencies ultimately reclassify government attorneys within Schedule Policy/Career, the OPM’s theory of Article II suggests that these attorneys are inferior officers subject to at-will removal. Although many legal positions are set by the attorney general and other political appointees, litigators representing the federal government often retain some discretion in drafting briefs and articulating the executive branch’s legal policy. Attorneys in general counsel offices likewise review policies, procedures, and practices. According to the OPM, these attorneys necessarily engage in policymaking functions, and tenure protections for individuals engaged in policymaking functions are unconstitutional.

One of the most concerning arguments relates to the constitutionality of removal protections for administrative adjudicators. Removal protections for adjudicators are necessary to ensure impartial decision-making in disputes between the government and private actors. The OPM describes removal protections for these employees as unconstitutional:

Scholars have documented that agencies employ over 10,000 non-administrative law judge adjudicators, who are generally employed in either senior General Schedule grades or as Senior Level employees and are covered by subchapter II. These adjudicators frequently exercise substantive administrative or policy-making authority through their decisions. Under Seila Law, construing the CSRA to insulate these officers from Presidential supervision is unconstitutional.

The OPM offers the example of the Merit Systems Protection Board’s (MSPB’s) administrative judges as one example of adjudicators who should be subject to at-will removal under the Constitution:

[T]hese administrative judges exercise significant authority that mirrors the authority highlighted by the Court in Freytag and Lucia: they “take testimony” by receiving evidence, examine witnesses at hearings, and taking pre-hearing depositions; “[c]onduct trials” by administering oaths, ruling on motions, and generally regulate the course of a hearing and the conduct of parties and counsel; “rule on the admissibility of evidence;” they have “[p]ower to enforce compliance with discovery orders;” and they may punish all contemptuous conduct, including violations of those orders “by means as severe as excluding the offender from the hearing.” ... If the CSRA is construed to prevent the President from waiving their adverse action procedures, then under Seila Law, Lucia, and Freytag, chapter 75 cannot be constitutionally applied to MSPB administrative judges. 

The OPM explains that its reasoning “likely applies to many more non-ALJ administrative adjudicators across the executive branch.”

Yet the OPM’s reasoning does not square with Supreme Court precedent decided after Seila Law. In United States v. Arthrex, Inc., the Supreme Court considered whether the statutory scheme governing administrative patent judges (APJ) violated Article II. APJs enjoyed removal protections, and their final decisions were not subject to review by the secretary of commerce. The Court agreed with the U.S. Court of Appeals for the Federal Circuit that this combination rendered APJs principal officers because their exercise of “unreviewable executive power” was “incompatible with their status as inferior officers.” The Federal Circuit sought to cure the constitutional defect by severing the APJs’ statutory removal protections. The Supreme Court, however, rejected that remedy. Instead, it preserved the removal protections and cured the Article II violation by making APJ decisions reviewable by a principal officer appointed by the president.

The OPM simply waives away Arthrex by saying that “[n]othing in Arthrex suggests that restricting the President’s ability to remove inferior officers with substantial authority is constitutionally permissible.” The OPM claims the Supreme Court did not address this issue because “President Biden made it clear he supported CSRA adverse action procedures and wanted them to apply broadly to career employees.”

Arthrex, however, makes clear that the constitutional defect identified by the Supreme Court was not the existence of removal protections alone, but their interaction with the exercise of unreviewable executive power. Where inferior officers exercise adjudicatory authority subject to supervision or review by a principal officer, Article II is satisfied without resort to at-will removal. By treating removal as the constitutionally required mechanism for presidential control—rather than review, supervision, or hierarchical oversight—the OPM disregards the remedial framework the Court itself adopted. Decisions of the MSPB’s administrative judges, for example, are reviewed by three principal officers appointed by the president who are (now) subject to at-will removal. Accepted on its own terms, the OPM’s reasoning would constitutionalize at-will removal across a vast category of adjudicators whom the Court has recognized as inferior officers precisely because their decisions are subject to supervision. 

The OPM does not limit its discussion to middle managers, attorneys, and adjudicators. Following the discussion of these positions, it offers the following list of inferior officers:

• A district court clerk
• Clerks responsible for “the records, books, and paper appertaining to the office”
• A clerk to Boston’s assistant treasurer
• An assistant surgeon
• A naval cadet-engineer
• Election monitors
• U.S. attorneys
• Federal marshals
• Military judges
• Judges in Article I courts

The OPM uses this list to support the following proposition: “Given the breadth and depth of the positions that the Court has held are offices, OPM thinks it likely that there are many more positions covered by subchapter II that are constitutional offices with significant administrative or policymaking authority. Accordingly, construing the CSRA to prevent the President from waiving the application of subchapter II policy-influencing positions would create serious constitutional challenges.” 

The OPM misrepresents the Supreme Court’s analysis of each of these cases. In Ex Parte Hennen (the case involving the district court clerk), the Supreme Court declined to recognize removal protection for the clerk because Congress had not written such protections into law. In Perkins (the case involving the naval cadet-engineer), the Supreme Court upheld removal protections for inferior officers. Most of the remaining cases address questions of appointment, compensation, or criminal liability. Nor do these cases decide whether the inferior officers at issue exercised “substantive policymaking or administrative authority”; that terminology emerges decades later in Morrison. How could clerks engaged in recordkeeping exercise “substantive policymaking or administrative authority” if the independent counsel does not? The OPM relies on an inferential leap that, because the Supreme Court has concluded that these positions are inferior officers, (a) they must exercise substantial policymaking or administrative authority and (b) they therefore must be removable by the president.

The OPM cites these cases because they appear in a list assembled in Justice Stephen Breyer’s dissent in Free Enterprise Fund v. Public Company Accounting Oversight Board. Breyer cited these cases to illustrate the confusion surrounding when removal protections for inferior officers might be unconstitutional. The majority in Free Enterprise, however, explicitly stated that “[n]othing in our opinion … should be read to cast doubt” on the civil service. The OPM nevertheless seeks to repurpose Breyer’s list as a catalog of positions that cannot enjoy removal protections under Supreme Court precedent, casting precisely the sort of doubt the majority sought to avoid.

The theory of Article II advanced by the OPM would reclassify the vast majority of federal employees as inferior officers. Based on the OPM’s discussion, it is difficult to identify positions that would not be deemed to exercise “substantive policymaking or administrative authority.” If that definition encompasses managers, attorneys, adjudicators, clerks, surgeons, engineers, and similar roles, then nearly every position—save for the most ministerial—would qualify. Under the OPM’s constitutional theory, the CSRA could not constitutionally constrain the president’s Article II authority to remove incumbents in these positions.

Removal Protections for Employees

If the OPM succeeds at reclassifying most federal employees as inferior officers and expanding removal protections to these inferior officers, then the tenure protections afforded by the CSRA will be rendered inert. Whether the Supreme Court is willing to accept such an expansion theory of what constitutes an inferior officer, however, remains to be seen.

Nevertheless, the OPM hedges by arguing that Article II also allows the president to remove at least some nonofficer employees. It argues that “the implication of the Court’s Article II precedents is that Congress cannot shield nonofficer employees who exercise meaningful executive power from accountability to the President.” “Under this logic, officials who meaningfully and substantively shape Federal policy through the performance of their duties—even if they do not formally exercise ‘significant’ enough authority to be considered an Officer of the United States—must be accountable to the President.” In other words, it does not matter whether individuals exercise significant control over policymaking or administration; mere involvement in those activities is sufficient to permit removal by the president.

The OPM refused to adopt a binding definition of positions having a “confidential, policy-determining, policy-making, or policy-advocating character.” Nevertheless, its understanding of that phrase informs its constitutional theory. Throughout the rule, the OPM conflated the statutory phrase with positions that exercise “substantive policymaking or administrative authority” for constitutional purposes. The OPM declined to state that scientists, technical experts, cybersecurity specialists, and similar positions categorically lack policymaking authority. It further emphasized that “eligibility for Schedule Policy/Career is distinct from whether a position will actually be moved into that Schedule.” Given that the OPM believes the constitutional and statutory definitions are synonymous with one another, eligibility —regardless of whether the position is ultimately reclassified—seems to determine whether the president would possess Article II authority to remove these employees. 

The OPM’s theory of Article II ultimately renders Schedule Policy/Career moot. If Article II independently authorizes the president to remove employees with “substantive policymaking or administrative authority,” and if such employees are understood to occupy positions of a “confidential, policy-determining, policy-making, or policy-advocating character,” then formal reclassification into Schedule Policy/Career becomes irrelevant to the president’s asserted removal authority. Schedule Policy/Career is simply a device to shoehorn this broad constitutional theory into the statutory framework adopted by the CSRA. 

* * *

There is no question that the Trump administration has the statutory authority to create some version of Schedule Policy/Career. Beneath this particular incarnation, however, exists an expansive theory of Article II that would abolish the tenure protections that define a modern civil service system. These tenure protections are necessary to entice expert and experienced professionals into government service, protect them against arbitrary removal or political retaliation, and ensure that the executive branch has the administrative capacity it needs to faithfully execute the law.

The OPM misreads, misrepresents, and contorts 150 years of Supreme Court precedent to arrive at the conclusion that the Constitution mandates its reading of the CSRA. The CSRA must be read as denying tenure protections to this broad swath of employees because otherwise it would violate the president’s Article II authority to remove such employees. Despite Roberts’s dicta in Seila Law, the Supreme Court has not recognized such a power as it pertains to inferior officers or employees. In fact, its holding in Arthrex suggests that expanding the president’s removal power is not the remedy if such a constitutional violation exists.

The Administrative Procedure Act requires a court to vacate a rule when the agency rests its action on an erroneous interpretation of law. The OPM’s constitutional arguments—and its unilateral determination of which positions exercise “substantive policymaking or administrative authority”—are sufficient grounds for vacatur. Litigants will no doubt identify additional defects in the rule. Even so, the constitutional theory embedded in Schedule Policy/Career should raise alarm bells for anyone concerned with preserving the executive branch’s capacity to faithfully execute the law.