The plan was a counterweight to the “deep state” Trump believed was out to disrupt his agenda. Coordinating labor policy for the White House’s Domestic Policy Council, James Sherk presented his bosses with a 19-page to-do list titled “Proposed Labor Reforms.” A top category was “Creating a government that serves the people.”
The result this week threatens to be the most significant assault on the nonpartisan civil service in its 137-year history: a sweeping executive order that strips job protections from employees in policy roles across the government. Exactly which roles would be affected will be up to personnel officials at federal agencies, who were tasked on Friday with reviewing all of their jobs and deciding who would qualify.
The order, a year in the making after delays caused by the coronavirus pandemic, came less than two weeks before Trump will ask voters for a second term. Still, it was not a last-minute idea or presidential whim. Rather, the wonky-sounding “Executive Order on Creating Schedule F in the Excepted Service” is a crowning achievement of conservative policy on the civil service.
Civil service experts and union leaders have assailed the order as an effort to impose political loyalty tests on a nonpartisan workforce. The directive likely would not survive if Joe Biden is elected president.
A day after issuing a directive crafted in such secrecy that senior officials across the government had no idea it was coming, Trump railed to donors that he presides over a government of miscreants.
“Somebody said, President, what’s the toughest country to deal with? Is it Russia? Is it China? Is it North Korea?” Trump told attendees at a fundraiser before Thursday’s debate in Nashville, saying it was harder to deal with officials inside his own government than with North Korea or Russia, according to one person who was there.
“No, the toughest country by far is dealing with the United States,” Trump said. “It’s true. These people are sick.”
The president went on to denigrate civil servants who served in government before his election.
“Well, you have a lot of people from past administrations, and they’re civil service. I fired some,” he said, referring to his efforts to purge several career diplomats and others who testified against him during last year’s impeachment hearings.
“I say some, just get rid of them,” the president continued. “We had a lot of them come to the floor during the impeachment hoax. You see them coming in with their bow ties and everything. It’s a weird deal,” Trump said. “We have some pretty deep-set, deep-seated people — we got a lot of them, and we got rid of a lot of them.”
Trump’s obsession with government employees he believes are against him has grown in recent months after his impeachment trial and the publication of the anonymous book “A Warning,” said four officials who spoke on the condition of anonymity because they were not authorized to speak publicly. The book is a critical account of the Trump administration written by an unnamed person described as a senior administration official.
Trump has dispatched Johnny McEntee, a 30-year-old aide viewed as deeply loyal to the president, to cull disloyal employees from agencies, vet potential hires and report back on his findings. McEntee has frustrated a range of Cabinet secretaries and administration officials with his moves. But McEntee has told others he is sniffing out perceived disloyalty, making personnel moves and questioning aides for the president because too many officials have had their own agendas for too long.
The White House has declined to say how many jobs would be swept into a class of employees with fewer civil service rights, but civil service experts and union leaders estimated anywhere from tens of thousands to hundreds of thousands in the 2.1 million-strong workforce. Each administration names about 4,000 political appointees, who typically change with each administration.
On Friday, civil servants and their allies in Congress agonized over the possibility of being reclassified into a new job category that gives them no recourse to fight actions their supervisors take against them. Union leaders met with their attorneys to review their legal options. Experts on the civil service opined that the Trump White House had pushed yet another boundary in its expansive interpretation of a president’s power.
The White House began crafting the order a year ago, consulting with its attorneys and concluding that federal personnel laws give the president latitude to shift employees among different groups.
“This was the fruit of a lot of hard work and due diligence to determine who could be considered a policymaking employee who was exempt from protections,” said Joe Grogan, the former Domestic Policy Council chief, who left the White House in May.
The pandemic delayed the rollout, along with other planned initiatives, he said. But even if Trump loses the election and a Biden administration rescinds the order, “there is a marker around this.”
The directive was so controversial that only a handful of senior administration officials were involved in putting it together. On a call among chiefs of staff across the government Wednesday morning, the order did not come up, according to one official on the call, who spoke on the condition of anonymity because the person was not authorized to discuss internal meetings.
On a separate call with about two dozen congressional aides Friday morning to discuss the executive order, officials with the Office of Personnel Management were unable to answer basic questions, several people on the call said.
“They kept falling back on, ‘We’ve had 48 hours to digest this,’ ” said Rep. Gerald E. Connolly (D-Va.), whose district includes thousands of federal employees. “This is a remarkable statement to make when you’re the government’s personnel operation.”
He says he is drafting legislation to overturn the order and hopes to insert language doing the same in a government spending bill Congress is expected to approve in December.
“We will stop this one way or another,” said Connolly, calling the order “an enormous abuse of presidential power.”
Sherk, in his 2017 memo, asserted that the Constitution gives the president virtually unlimited authority over the executive branch, including to hire and fire employees. His vision forms the backbone of Wednesday’s executive order.
Sherk, who is now special assistant to the president for domestic policy, began by advancing an anti-labor agenda for both the private sector and the government. In 2018, he was the power behind a set of executive orders that weakened collective bargaining rights, cleared a faster path to firing poor performers and blocked unions from working on matters involving employee representation on work time. The orders survived numerous court challenges.
Other proposals to reduce pay and benefits and hold the line on raises were less successful.
Sherk declined to comment. But current and former administration officials described a frustration in the Trump White House that agencies often fail to address poor performers in government because the process is prolonged and does not always result in discipline or dismissal. The officials point to critical policymaking employees with high-profile roles that, when carried out poorly, can lead to widespread dysfunction at an agency.
“James’s frustration and that of a lot of people was ‘Pick up the damn pen and do what we told you to do, so a year doesn’t go by and we don’t have anything,’ ” Grogan said. He referred to a “permanent class of civil servants that have protections that no other group of employees in America enjoys.”
Heritage alumni have played a role in shaping the White House’s policy on federal workers, making moves that have earned the full-throated support of the conservative group.
In addition to Sherk — who worked as a research fellow at Heritage beginning in 2006 — Heritage alum Michael Rigas has also worked to implement Trump’s push to overhaul federal workforce policy. Rigas, currently serving as the interim deputy director for management at the White House Budget office, has said publicly that the federal government needs to have more authority to take action against poor performers.
Rachel Greszler, a Heritage researcher, said the president’s executive order would help rectify a situation in which a president has less power than a private-sector chief executive to discipline or fire “managers who refused to carry out her directives or who took actions to thwart her initiative.”
“Federal workers who hold critical policy-related positions, with the power to significantly impact Americans’ lives, should not be immune from accountability,” she said. “This change is long overdue. It will result in better stewardship of taxpayers’ money, and could improve morale as federal workers show high levels of dissatisfaction with a lack of accountability.”
Some conservatives called the order an ineffective strategy to achieve their goal of reining in the federal workforce and making its hiring and discipline practices more reflective of the private sector.
Robert Shea, former associate director in the George W. Bush budget office, said the Bush administration never considered such a move in part because it may run aground of civil service laws passed by Congress. Shea said the advice of expert career employees would likely be ignored if the order took place.
“And if the motive is something more sinister, then I think it does real damage to the civil service,” he said. “It would convert a swath of people into pretty much political appointee status. They would not enjoy the protections that career civil servants enjoy and therefore they would be at the behest of political appointees. ”