Trump Gets His Way on Ability to Fire Employees, but Net Effect Remains Unclear

In the waning days of his first administration, President Donald Trump attempted to create a similar "Schedule F," but that effort was quickly reversed during the Biden administration. Experts said at the time the order would make it easier to get rid of staffers without the usual process and protections but could also allow the administration to "burrow" political appointees into the civil service quickly, and on an unusually large scale (see 2010300048).

“Agency supervisors report great difficulty removing employees for poor performance or misconduct,” the final rule says. This new category “will allow agencies to quickly remove employees from critical positions who engage in misconduct, perform poorly, or obstruct the democratic process by intentionally subverting Presidential directives.”

American Federation of Government Employees President Everett Kelley called the rule “a direct assault on a professional, nonpartisan, merit-based civil service and the government services the American people rely on every day.” The group said a lawsuit “brought with a coalition of unions and other plaintiffs” is imminent. The FCC and the National Treasury Employees Union, which represents FCC employees, didn’t comment Friday.

Companies Should Be Worried

New Street’s Blair Levin warned that the move could further politicize the FCC. The business community “should be very concerned that when it comes to matters of equipment certification, interference disputes, spectrum auction design, public interest waivers, privacy regulation and a host of other issues, that those disputes are decided on the basis of who bought more in a crypto fund than what the technical evidence says,” Levin said in an email Friday.

Commissioner Anna Gomez, in a statement, said, “The FCC has a small but mighty workforce of dedicated public servants who carry out the agency’s mission across administrations, ensuring continuity, expertise, and integrity in its work.” Gomez added, “Their loyalty is to the success of the agency and preserving that expertise is essential to meeting the FCC’s responsibilities.”

Donald Kettl, professor emeritus at the University of Maryland and former dean of its School of Public Policy, told us we'll know more within a month, when the administration announces "the specific positions targeted for transfer” to the new schedule. “It's inevitable that substantial numbers of federal employees involved in communications policy will be transferred,” he said.

Kettl said in its first year, the Trump administration eliminated 9% of the federal workforce, including almost 250 people at the FCC. Both the FCC and NTIA “have high numbers of professional-level employees, and that's where Schedule PC will be focused,” he added.

Former FCC Commissioner Michael Copps said it’s not a surprise that the administration’s “destructive war against the civil service and the public interest continues.” It’s unclear “what the civil service will look like after three more years of this wrecking ball approach to good government,” he said.

The rule could mean special difficulty for federal attorneys involved with policy, a large component of the FCC staff, said University of Cincinnati labor law professor Anne Lofaso. “The job is to implement what the policymakers want, but also to keep them honest, on the right side of the rule of law,” she said. If policy employees can be fired at will, they could be incentivized to rubber stamp regulations that skirt the edges of the law, she added.

American University administrative law professor Jeffrey Lubbers said the White House is also implementing policies to make hiring federal workers easier while it rolls out the rule. Combined, the two policies could give agency heads the ability to easily fire and replace policy employees, he said. “They’ll be able to tell employees they can easily be replaced.”

The policy will make it harder for federal employees who seek to obstruct the White House’s agenda to do so, said Roger Norber, a professorial lecturer at George Washington Law School and former director of the GW Regulatory Studies Center. “I do think you can find the vast majority of senior federal officers who are committed to their role as representatives of the government,” he said. “But then there probably have been instances where policymakers have tried to slow down or stop or foil administration efforts,” he said.

Legal Challenges

It’s not clear how legal challenges to the new rule will fair, administrative law professors said. For example, the outcome of Trump v. Slaughter, a U.S. Supreme Court case that concerns presidential authority to fire independent commissioners, could bear on the matter, Lohaso said. If an eventual SCOTUS decision narrows but leaves in place precedents protecting commissioners from being fired, it will make defending the rule more difficult, she said.

Lubbers said he believes legal challengers will be in a strong position because about 90% of the 40,000 comments on the proposed rule were negative. “The question is going to be whether they have properly addressed those comments and responded to them properly and given an adequate justification for changing the Biden-era rule,” said Lubbers. “These kinds of abrupt changes in policies can be hard to defend in court.”

Other experts agreed the net effect may not be clear for some time.

Cooley’s Robert McDowell, a former FCC commissioner, said the “long-anticipated action” by the Trump administration raises many questions and is likely to be appealed. Among the questions is, “Will I be treated as an employee at-will?” he said in an email. “Can I be fired for any legal reason or no reason at all, just like a private-sector employee? Will this politicize the federal workforce? Will we see wholesale personnel changes every time a new president is elected?”

Mark Jamison, nonresident senior fellow at the American Enterprise Institute, said, “Because the president has discretion as to where the rule would be applied,” it’s unclear how particular agencies will be affected. Some employees leave when the administration changes, he said. In other cases, staffers who thought they would be at odds with the new administration, find “after a few candid conversations" that "there was much to agree with.” Jamison noted that agency heads already have ways to pressure “disfavored staff” to leave, “moving them to unimportant jobs or keeping them out of the loop.”

Kristian Stout, innovation policy director at the International Center for Law & Economics, emailed that communications policy “tends to be unusually technocratic, so I wouldn’t expect an immediate ‘loyalty test’ dynamic for most FCC/NTIA staff, notwithstanding a few recent flare-ups where policy fights got more overtly political.”