By Susan Shelley
August 7, 2022
The story of “Schedule F” explains everything about Washington.
The “Executive Order on Creating Schedule F in the Excepted Service” was issued by President Donald Trump on October 21, 2020, less than two weeks before the November election.
It was reversed by President Joe Biden on his third day in the Oval Office.
One Democratic congressman, Rep. Gerry Connolly of Virginia, was so concerned about Schedule F that he sponsored an amendment to the National Defense Authorization Act to prevent the thing from ever coming back. The amendment passed in the House on July 14 by a vote of 215-201.
So, what is it?
It could be the death knell for what has come to be known as the “Administrative State.”
A brief history: In the 1930s, President Franklin Delano Roosevelt’s New Deal policies were often at odds with the U.S. Constitution’s strict limits on the power of the federal government. But the New Deal prevailed and the Administrative State was born. Congress delegated authority to various federal agencies and commissions that exercised rule-making powers along with enforcement powers and quasi-judicial powers. These agencies and commissions developed into governments within the government.
In 1994, Gary Lawson of Boston University School of Law wrote a Harvard Law Review article titled, “The Rise and Rise of the Administrative State.” He illustrated the problem. “Consider the typical enforcement activities of a typical federal agency — for example, of the Federal Trade Commission,” he wrote. The Commission “promulgates substantive rules” and decides whether to “authorize investigations into whether the Commission’s rules have been violated.” Then “the investigation is conducted by the Commission, which reports its findings to the Commission,” and the Commission decides if its findings “warrant an enforcement action,” in which case the Commission issues a complaint, prosecutes the case, and conducts the judicial proceeding itself, either before the full Commission or in front of “a semi-autonomous Commission administrative law judge.”
This circular harumphing can go on for years, leaving the target of the investigation bleeding cash for legal fees and unable to conduct its business. Only when all the administrative remedies have been exhausted may the accused party petition an actual court to challenge the Commission’s actions and decision.
And here’s the punchline: The courts defer to the agency, as long as its interpretation is reasonable, because the agency is the expert.
That deference is the law of the land because of a 1984 Supreme Court decision known as Chevron U.S.A. v. Natural Resources Defense Council.
Many conservatives, including Justice Clarence Thomas, have expressed concern about the unchecked, unconstitutional power exercised by the Administrative State, but the discussion has never really broken out of the paneled offices of the elite legal community.
Enter Donald J. Trump. If you want to break things, he’s your guy.
The Trump administration’s Schedule F executive order, which you can find online at trumpwhitehouse.archives.gov, created a new “excepted” category in the Civil Service called Schedule F. Civil Service employees in “positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition” would be added to Schedule F, and they would lose their protections against being fired. The executive order gave the president the power to replace any civil servant who exercised control or influence over policy.
How many Americans are even aware that U.S. policy is made by permanent civil servants who can’t be fired, not even if they’re enacting and enforcing policies that contradict the policies of the elected president?
Welcome to the Administrative State, which President Trump sometimes called the “Deep State.” It’s the government within a government that does not answer to anybody.
The Schedule F executive order would have removed civil service protections from an estimated 50,000 federal workers who have a role in shaping policy. For context, there are more than 2 million federal employees, and a new president is empowered to replace only about 4,000 of them.
It’s safe to assume, given the speed with which President Biden rescinded the Schedule F executive order, that the policy-making civil servants generally agree with his policy views. Biden had no desire to replace them.
But what if Trump wins back the White House?
Axios recently published a story titled, “A Radical Plan for Trump’s Second Term,” which frets that Schedule F “would effectively upend the modern civil service, triggering a shock wave across the bureaucracy.” In one passage that reads like a transcription of a nervous civil servant’s voicemail message, the author writes, “Such pendulum swings and politicization could threaten the continuity and quality of service to taxpayers, the regulatory protections, the checks on executive power, and other aspects of American democracy.”
There’s nothing in the Constitution that empowers mid-level bureaucrats to exercise “checks on executive power.” However, in the Administrative State, they do.
Axios asserted that Trump’s Schedule F executive order would have a significant “chilling effect” on the actions of policy-making civil servants, because the president would have the power to fire and replace them, just as he would a Cabinet Secretary or other political appointee. In practice, a new president might not have to replace anybody. Faced with possible job loss, the government employees might suddenly be motivated to carry out the president’s policies. That’s what Axios calls “chilling.”
Voters might call it “responsive” and “effective.”
When the U.S. Senate takes up the NDAA, it should strike the House amendment that blocks a “Schedule F” type of change to the federal workforce. It’s long past time for the Administrative State to answer to the voters and to work for, not against, the leaders we elect.
Write to Susan at Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley.
This column was originally published by the Southern California News Group.
