Donald Trump’s grand plan to mass fire federal workers disloyal to the president by reclassifying them as at-will employees (also known as Schedule F) got rolling shortly before he left office. It figures prominently in Project 2025, the Heritage Foundation’s wish list for the second Trump administration, which became an effective bogeyman for Vice-President Kamala Harris’s campaign. While President Biden reversed Trump’s first-term efforts and tried to defend against future ones, Trump has vowed to get the purge going again on “day one” of his new administration. And unlike some of his other proposals — say, deporting every person in the U.S. illegally — this one may be far from unworkable. At least that’s the opinion of Donald Kettl, a professor emeritus and former dean at the School of Public Policy at the University of Maryland who is a nationally recognized expert on the inner workings of the federal government. (Kettl has written or edited 25 books on the subject, and has consulted widely for government organizations.) I spoke with him about why Schedule F is likely to stand up to Democratic legal challenges, and what may limit a true worst-case scenario instead.
Can you explain why you think Donald Trump is on such sound constitutional footing with what he wants to do here?
Among opponents of Schedule F and other big proposals to try to transform the civil service, there’s been a fair amount of confidence, and I would say overconfidence, that they could stop it in the courts — especially on the left. But as I read it, existing law gives the president authority to implement civil-service laws that have been created and passed by Congress. That includes, it seems, authority to create things like Schedule F. I’m not sure it was ever intended that that kind of power would be used in a way to essentially create an enormous workaround to the civil service. But as best I can tell, in fact, the president does have the power to do such a thing.
The question is, do people who are in the civil service have any power to resist being taken out of their existing protected status and put into this new Schedule F? And here, again, as best I can tell, the answer is “no.” They don’t have any real legal basis on which to contest this.
There are those who think it may be possible to file a suit and say that the rights of people hired by Uncle Sam to work on the government’s programs do, in fact, have protections against dismissal. But I think the odds favor those who say the president does have that power. The only way we’re going to know for sure is whether or not somebody raises a legal challenge and takes it through the courts. These days, for people on the left, that is a difficult proposition. Joe Biden has succeeded in appointing lots of judges, but Trump appointed even more, especially on the Supreme Court. Ultimately, if you ask the Supreme Court, “Do you favor more power for the president?,” the answer will be “yes.”
If a fired federal worker does file a suit and it goes to a sympathetic federal judge — an Obama or Biden appointee, let’s say — what’s the best-case scenario? Could they hand down a temporary injunction or otherwise pause the proceedings for a while, if not stop them?
What’s certain to happen is that split seconds after an executive order or a new regulation or something is put in place, there will be a race to the courts to try to overturn it. Opponents of Schedule F will try to find a friendly judge somewhere who would grant a stay or an injunction until it has a chance to be heard by the courts.
Depending on how clever each side is at venue shopping, that could either be a long process or a short process, but you can count on some back-and-forth injunctions and injunctions lifted. In the short term, it’s possible that those who favor the existing system may be able to fight against Schedule F, but ultimately the question is going to end up with the Supreme Court.
You’ve written that the whole process could take multiple years. But absent a sweeping injunction, Trump could be carrying out his plan in the meantime, right?
Exactly. It depends on — will there be an injunction? How broad would that injunction be? How much will it hold up? It is certain that the Trump people will be doing all they can to act under the authority given to them, and with that authority, they would have a two-year running start.
It depends as well on the particular pathway the Trump people choose to use in advancing Schedule F. This gets into arcane material that’s of interest only to the wonks who crawl around inside the system.
It’s your time to shine.
The original Trump effort was an executive order. And the president has the authority to issue orders saying, “Here’s what you need to do under my authority.” And there was an effort to try to challenge that, and the challenge was rejected. The executive order went into place. Almost as soon as he moved into the White House, Biden reversed that executive order with one of his own and then tried to trump that, if you’ll pardon the expression, with a regulation that was designed to make it impossible in perpetuity to put an executive order back in place. Well, given the regulation, it is probably impossible to put Schedule F back into place through executive order, but the incoming administration could deal with it through its own regulation that would wipe out the Biden regulation.
They could either decide that they’ll go through the regular process, which would be four or five or six months — the calculus there would be by that point, they’d have their own appointees in place, and what’s the point of picking a big fight until they have higher odds of winning? Or they can say, “This is one of the first things we want to do. We want to try to make our point about cutting bureaucracy.” And this gets really inside baseball, but they could issue what’s called an interim final rule, which says, “We’re going to go through all the regular rulemaking processes, but in the meantime, what we want to do will be in place until we take it away, maybe until we decide to amend or change the rulemaking that we had announced. It’s possible this could happen as early as 12:35 p.m. on January the 20th.
Knowing the Trump people, it probably will, right?
They might very well do that. The president could literally walk off the stage and sign a piece of paper that puts Schedule F into place as an interim final rule. Then the regular rulemaking process would start, but this makes it a lot easier for the Trump people to act as they propose to act.
It’s possible that the president may decide that he’s going to even trump himself and try to do this with legislation, which would be even more powerful. But that requires Congress to actually do something. And Congress seems to have a hard time even deciding that the sun is going to come up tomorrow morning. The odds of getting legislation on this, I think, are slim. My bet is on the regulatory approach.
In an interview with NPR, you predicted that the administration won’t actually end up firing tens of thousands of people, simply because it would affect people’s lives so much that it would backfire politically. You said that instead, they’ll try to make an example of some people who don’t agree with them politically. How do you see that working?
And one of the things that I think has been a miscalculation on the part of the opponents of Schedule F is that a new administration would treat this as a kind of spoils system, say “Off with all their heads,” and bring in a whole bunch of new people. But the Trump camp knows that mass firing of tens of thousands of Feds would be disastrous because all the things that the people count on from the federal government would suddenly be in deep trouble. Everything. Air-traffic control, Social Security, or veterans’ benefits, You name it. If you start firing people en masse, then you undermine your ability to be able to get stuff done.
I think it’s highly unlikely that they’ll fire tens of thousands of people. They want to be able to threaten tens of thousands but only act on a relatively small handful. People will get the message, and they can get rid of the ones they find troublesome.
The message being, “Follow our orders, and do what we want, even if you don’t agree with it politically. And don’t slow-roll anything.”
Exactly. It’s fairly certain that there would be a couple of people who would be made examples up right off the bat. And we already know that they’re prepared, because there is a hit list of ten people inside the Department of Homeland Security — it’s already been put out there on the web. We know that some people have been identified at EPA. There certainly are people inside the Justice Department. You can begin looking around the government and identifying people whose jobs would be at risk because they seem to be out of step with the new administration.
It’s sort of like the good old days of Henry VIII, who understood that he didn’t need to kill all his opponents and, in fact, it would be bad politics and bad governing if he tried to do that. All he had to do was identify a few select people, chop off their heads, put them on pikes in front of the Tower of London, and people got the message pretty quickly.
Do you know who is putting out these lists?
There was a list put together under an organization affiliated with the Heritage Foundation, which named ten people who were career civil servants inside the Department of Homeland Security who were identified as obviously woke and not in step with Trump values.
They’re still whispering today about people inside the EPA who, it was said, blocked the administration the last time. There are lots of people inside the Justice Department that Trump loyalists have in mind who may fight the retribution agenda but also who were seen as being overly zealous and protecting a kind of woke politics that they believe the DOJ was advancing even during the Trump years.
How would the Trump administration frame this to perhaps make it more palatable?
An argument would be made that the best way to improve government efficiency is to ensure that workers are responsive to political leaders who have the ear of the people, so they’d be implementing programs in a way that is both responsive and effective as the people want. There’s a pretty sharp divide between the question of how to do government work and the people who are sitting in the chairs actually doing that work.
Traditionally, the idea of linking government competence with government responsiveness has always been a tough trade-off, but there’s always been a sense that it’s the job of the civil service to be both competent and responsive. And we have very rarely seen efforts that just lean completely in the direction of responsiveness.
The one example was back in the Nixon years. Some of this was wrapped up in the whole Watergate case, and we didn’t really have a chance to see it come to fruition, but there were memos and other plans put in place as part of what was called the “Responsiveness Program.” That was designed to ensure that federal employees were responsive to Nixon and what he wanted to do. And he didn’t have a chance to really carry it out because he was out of office before he could put it all into place.
I was going to ask you about the closest historic parallel. The federal bureaucracy goes back about 140 years. Has anyone tried to bend it to their will like this?
Certainly nobody like this. There’s always a concern when a new administration comes in — Democratic or Republican — that the Feds who are there as careerists just don’t get the fact that there’s this new boss in town. But one thing that happens pretty quickly is that smart political appointees begin to recognize that the people there really do understand it’s their job to serve the government and that they have expertise they can bring to bear and that ignoring that expertise is a really dangerous proposition.
The old joke is that there are two ways to sabotage a new political appointee if you’re a career. One is to do nothing they say. The other is to do everything they say. And it’s an interesting question about which one is the biggest piece of sabotage because you can just allow somebody to take the keys to the car and drive it over the cliff before they know they’re flying through the air.
Smart political parties know that right off the bat. During the Nixon years, one part of the responsiveness program was something called the “Malek Manual,” put together by Fred Malek. It’s got a really delicious collection of ten pages at the end that talks about all the ways that you can make life miserable for federal bureaucrats that you want to rid yourself of, including changing their work hours, reassigning them to different locations — lots of ways to make their lives miserable and unhappy so that they decide that the easiest course of action is just to resign.
Speaking of which, there’s talk of moving entire offices out of Washington, even though 85 percent of the federal government or so already works outside Washington. Is that going to be fairly straightforward legally as well?
They can do it. It’s often not very smart to do it.
Forget about smart. That’s not the name of the game here.
They can, and they tried the last time around and, in fact, did it. They have the power to change the way in which offices are organized to do the work, as long as they don’t try to abolish the offices or wipe out the jobs. You can make an entire office pretty miserable by pulling all of its employees up from where their spouses have jobs, where their kids have soccer camps, where there are sons and daughters waiting for high-school graduation. You can make people pretty miserable pretty quickly by sending them somewhere else. And if you really want to be nasty, you can send them to some place that is a much less fun place to go live. And people sometimes just decide, You know what? I’m out of here. That’s a time-honored game.
Now, does it make sense? You have to ask how important is it for that agency’s leaders to be close to the people who work for them or be close to the people on Capitol Hill who want to hold them accountable? You can’t do both unless you just have these people sitting on airplanes all the time flying back and forth, and that’s expensive and stupid.
Let’s say the Trump administration carries out a good portion of this agenda. It’s true that Congress is not great at passing legislation, but do you envision a backlash among even Republican representatives and senators?
We’ve already seen it’s very hard for Republican legislators to stiffen up their backbone and to complain about what the administration is doing. But how might problems begin to develop? “I was trying to fly from Washington back to my district, and it took me an extra two hours to get through airport security because there wasn’t enough airport security; or, “Once I got in the air, I had a long delay trying to get to my destination because there weren’t enough air-traffic controllers”; or, “I have unending complaints from my constituents saying they can’t get baby formula at the supermarket” because the company manufacturing the baby formula was operating an operation that wasn’t clean. And why did that happen? Well, there weren’t enough government inspectors.
You just keep telling the story over and over again. At some point, people say, “You know, we’re not so sure we’d like this. We’re all in favor of cutting government but not that government.” And by the time you start circling the wagons around things you don’t want to cut, it turns out that it’s hard to cut anything that’s really substantial.
I think some people have an idea of what the federal government is, and it’s a bunch of useless paper pushers typing in some office in Washington, and that’s actually a very small percentage of what goes on in the government.
And one other piece that people often miss is that some of the paper that’s being pushed is paper that keeps the state going as well — that you’ve got to have people who are smart enough that the contracts that make the government run don’t end up getting fouled up.
One of my favorite numbers is that the Centers for Medicare and Medicaid Services account for 23 percent of the entire federal budget. But the number of people who are responsible for 23 percent of the federal budget is 0.2 percent of all federal employees. How does this happen?
The answer is that the people at CMS don’t manage Medicare or Medicaid per se — they manage the contractors who manage Medicare and Medicaid. And so if you start offing those people, you lose oversight on the people who are responsible for almost a quarter of the federal budget. And that sort of seems like a bad idea too.
Anything else that strikes you about these potential cuts?
I will just add one final piece. What would’ve happened if Harris had won? What kind of conversation would we be having now? To be sure, people on the right would still be taking shots at the bureaucracy, but the Harris administration probably would not have done things tremendously differently from the Biden administration. And it’s clear that we had a government that was getting further and further out of sync with the job that had to get done. That wouldn’t necessarily have been very good either.
What do you mean by “out of sync with the job”?
In two respects. One is that it’s pretty clear that a lot of people are really ticked off at the government. So the government’s ability to demand and hold the trust of the public is not very high. But in addition to that, we have hundreds of billions of dollars of improper payments, for example, that are sloshing around out there. And the DOGE Commission has that squarely in its sights, but you can’t just say, “We’re going to collect all that money.” To be able to do that, you need really smart people to identify where the waste, fraud, and abuse is taking place.
That’s a capacity that many government agencies simply don’t have right now. And the Biden-Harris administration is making progress, but to what degree would they have made the pivot from where we are now to an AI-enabled, IT-driven, service-oriented government for 2035? There’d probably be some progress, but it would be slow.
The one big possibility that I think exists for the Trump people coming in is that there will be an instinct to play Thelma & Louise and drive the car right over the cliff. But whether they hit the brakes at the last second or if they’re pick up the pieces at the bottom of the cliff, there will be an opportunity to think about the way in which you can bring smarter technologies, smarter managers, smarter IT, and a more customer-focused approach to government in a way that the Harris administration might not have. It’s a hopeful sign. Maybe.
Maybe.
More From This Series
- They Shocked Assad and the World. What Will They Do Next?
- How Trump Could Attack Trans Rights
- How Luigi Mangione Probably Gave Himself Away
This interview has been edited for length and clarity.
