New US civil service rules look to prevent a future Trump purge of federal workers

The Biden administration has finalised a new set of regulations to prevent a future president from initiating a wholesale purge of the US civil service along the lines of what former president Donald Trump envisioned during the final months of his term.

The new rules, published in the Federal Register on Thursday and which would go into effect on 9 May, are meant to provide the 2.2 million nonpartisan civil servants who staff the executive branch with more defined protections that cannot be easily stripped away by presidential fiat.

They were inspired by an October 2020 executive order issued by Mr Trump which created a new category of federal employee known as “Schedule F” which encompassed anyone working in what the order described as  “confidential, policy-determining, policy-making, or policy-advocating positions” — a classification that had generally been reserved for the political appointees who come and go with each change in administration.

According to experts, this could have encompassed most of the non-partisan experts — scientists, doctors, lawyers, economists — who are supposed to advise and inform policymakers in a way that is fact-driven and devoid of politics. The order stripped most civil service protections from these employees, allowing them to be fired without cause.

Joe Biden rescinded Mr Trump’s order as one of his first official acts after taking office, and he has repeatedly called for Congress to enact stronger civil service protections into law to prevent future presidents from attempting what Mr Trump tried to do with Schedule F.

But Mr Trump, who is currently the Republican Party’s presumptive nominee in what is set to be a rematch of the 2020 presidential election against Mr Biden, has repeatedly vowed to revive the policy if he is returned to the White House next January.

In a 2022 speech to the right-wing America First Policy Institute, the ex-president said it must become “much easier to fire rogue bureaucrats who are deliberately undermining democracy or at a minimum just want to keep their jobs”.

Invoking the “Schedule F” order, he promised to use it to “drain the swamp and root out the deep state” in a second term.

Because Congress has not taken up legislation to prohibit such actions, the new Office of Personnel Management regulations are meant to fill in the gap by making it much more difficult for a future president to use a policy such as Schedule F to reclassify whole swaths of employees into more easily removable categories.

The regulations state that a federal worker’s civil service protections can’t be removed by reclassifying them into a different personnel schedule and specifically classify “employees in confidential, policy-determining, policy-making or policy-advocating positions” as non-career political appointees — not civil servants.

It also establishes a process by which an employee whose position is reclassified into a non-career category can appeal to the Merit Systems Protection Board, an independent agency which hears disputes over possible violations of US civil service rules.

In a statement, Mr Biden said his administration was rolling out new “protections for 2.2 million career civil servants from political interference” for the purpose of ensuring that federal workers “can carry out their responsibilities in the best interest of the American people”.

He called the new regulations “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”.

“Day in and day out, career civil servants provide the expertise and continuity necessary for our democracy to function. They provide Americans with life-saving and life-changing services and put opportunity within reach for millions. That’s why since taking office, I have worked to strengthen, empower, and rebuild our career workforce,” he said.

Rob Shriver, the deputy director of the Office of Personnel Management, told reporters that officials are “confident that our final rule is the best reading of civil service statutes and is grounded in the civil service in the statutory language, congressional intent, legislative history and decades of applicable case law and practice”.

“The rule is strong, it will help to ensure the rights employees earned as envisioned by Congress when it enacted the Civil Service Reform Act in 1978 and expanded and strengthened those protections through subsequent enactments,” he said.

Everett Kelley, the president of the American Federation of Government Employees — the largest labour union representing federal workers — also praised Mr Biden for issuing the new regulations in a statement of his own on Thursday.

“President Biden’s action reinforces and clarifies federal employees’ due process rights and civil service protections, strengthening the apolitical civil service and hampering efforts to return the government to a corrupt spoils system,” he said.

Mr Kelley also warned that Mr Trump and other like-minded Republicans “would support stripping hundreds of thousands of federal employees of their civil service rights and protections and turning them into at-will workers who could be hired or fired at any time for political reasons” if returned to power.

He said their preferred course of action “would undermine our democratic, nonpartisan government and take us back to the 19th century when civil servants were hired based on political loyalty rather than professional ability”.

“One reason for the stability of our federal government is the fact that federal employees continue doing their jobs and serving the American public even as political administrations come and go. Turning positions that demand technical expertise into political appointments filled based on partisan loyalty would undermine this fundamental tenet of our government and lead to chaos and corruption,” he said.