Can Biden protect the civil service from Trump?

By Kevin Bogardus | 04/04/2024 01:25 PM EDT

The Office of Personnel Management’s rule may slow but not stop a potential second Trump administration’s plans for civil servants.

Donald Trump

Republican presidential candidate and former President Donald Trump speaks Tuesday at a campaign event in Grand Rapids, Michigan. Paul Sancya/AP Photo

President Joe Biden’s bid to shield the federal government’s career staff from political retaliation could outlast his time in office — but only just — if he loses his reelection bid.

Former President Donald Trump is running again for the White House and has promised to dismantle the so-called “deep state,” an entrenched federal bureaucracy that he says resisted his policies during his prior administration. In turn, Biden has issued a new regulation to preempt politically motivated firings of civil servants if his Republican opponent returns to office.

On Thursday, the Office of Personnel Management announceda final rule to strengthen civil service protections. The rule aims to stymie Trump’s plans to revive Schedule F, a class of federal employees he created that could be fired more easily. Biden revoked that Trump order soon after coming into office.


Yet James Sherk, who served in the Trump White House, told E&E News the next administration could roll back Biden’s rule in the same time it took OPM to propose and finalize it. A future president would likely have to take that route, considering an executive order to bring back Schedule F would have to deal with the new civil service rule.

“It is not going to be effective until this rule is rolled back,” said Sherk, now director of the Center for American Freedom at the America First Policy Institute, a Trump-aligned think tank. “This is something that can slow down a Schedule F but only by six months to a year.”

Biden administration officials said the rule was required to safeguard career employees. OPM considered the more than 4,000 comments they received on the rule, first proposed last September, and believes the final product is grounded in statutes, congressional intent and case law from over decades.

“This rule is strong and will help to ensure the rights employees earned are protected and preserved,” OPM Deputy Director Rob Shriver told reporters Wednesday. “It is critical to the effective functioning of the country that the people who work for our government are hired and fired based on merit and can carry out their duties based on expertise and not political loyalty.”

In his own statement Thursday, Biden said, “This rule is a step toward combatting corruption and partisan interference to ensure civil servants are able to focus on the most important task at hand: delivering for the American people.”

The rule is expected to be formally published in the Federal Register on April 9 and take effect 30 days later.

‘Adhering to merit principles’

Allies of the Biden administration cheered the civil service rule.

“President Biden’s administration has strengthened the guardrails around the merit-based civil service,” National Treasury Employees Union President Doreen Greenwald said in a statement. “It will now be much harder for any president to arbitrarily remove the nonpartisan professionals who staff our federal agencies just to make room for hand-picked partisan loyalists.”

NTEU, which represents government staff in 35 agencies, petitioned the personnel agency in December 2022 to write the rule.

OPM’s rule “clarifies and reinforces” civil service protections and merit system principles, including having federal employees choose voluntarily to waive their civil service rights if transferred to another class.

In addition, the rule prevents policymaking positions, which are meant for political appointees, from being given to career staff. It also requires new procedures when reclassifying civil servants as political appointees, such as an appeals process for affected employees to guard their rights.

Max Stier, president and CEO of the Partnership for Public Service, a good government research group, said OPM’s regulation was necessary to stop the abuse of civil service rules and prevent a return to the corrupt “spoils” system of the 1800s.

“Those rules do, however, need to be updated,” Stier said in a statement. “Streamlining processes for hiring, performance management and accountability, and preparing managers to support the workforce through the talent life cycle are just some of the ways the federal government can better serve while adhering to merit principles.”

‘A tool of accountability’

Trump signed his order creating Schedule F in October 2020, calling on agencies to reclassify career staff involved in policymaking, essentially making them at-will employees.

A Government Accountability Office report found few agencies responded to the order, leaving much of the federal workforce unaffected by Schedule F in the final months of the Trump administration.

Sherk, who helped draft the order, said it was “a tool of accountability” for career staff at agencies.

“Employees who injected partisan politics in their work would be in a world of trouble under Schedule F,” Sherk said. “Employees who carried out the president’s agenda would have been fine.”

He was highly critical of the OPM rule released Thursday.

“Empowering career officials to undermine and block policies they oppose is a massive threat to democracy,” Sherk said. “The government needs to be accountable to the people.”

Republican lawmakers on Thursday voiced similar opinions in response to the Biden administration’s new rule.

Rep. James Comer (R-Ky.), chair of the House Oversight and Accountability Committee, said in a statement the measure “would insulate the federal workforce from accountability.” Further, his panel will examine “legislative solutions” to make career staff more accountable to the public.

Rep. Andy Ogles (R-Tenn.) has already introduced legislation, “END the DEEP STATE Act,” or H.R. 6558, which would nullify OPM’s civil service rule.

Democrats, meanwhile, have proposed legislation to block the return of Schedule F. Rep. Gerry Connolly (D-Va.) applauded the rule but said his bill — “Saving the Civil Service Act,” H.R. 1002 — was still necessary.

“The threat of a politicized civil service is too great, and too real, for this to be the end of our efforts,” Connolly said in a statement. “We must build on this important step with legislation that ensures no future president can take office and replace 50,000+ dedicated civil servants with an army of political loyalists.”

Sherk, however, warned that civil servants can obstruct policies of Democratic administrations as well as Republican ones. He noted the upheaval at the State Department over Biden’s response to Israel’s military campaign in Gaza.

“The president is in power. The career bureaucracy should be implementing all lawful directives,” Sherk said. “The shoe can be on the other foot.”