Lawfare Daily: Nick Bednar on Trump's Civil Service Executive Orders

[Intro]

Nick Bednar: Other things we're seeing like Schedule F, however, are really expanding what happens during the transition and greatly politicizing a lot of positions that haven't been politicized in the past. And so I think that's the big change here.

Alan Rozenshtein: It's the Lawfare Podcast. I'm Alan Rozenshtein, associate professor at the University of Minnesota Law School and senior editor and research director at Lawfare.

Nick Bednar: The executive power—all of it—is vested in a president who must take care that the laws be faithfully executed. Because senior executive service officials wield significant governmental authority, they must serve at the pleasure of the president. So this seems to be the play. They think there's a constitutional hook to all of this.

Alan Rozenshtein: Today, I'm talking to my colleague Nick Bednar, an associate professor of law at the University of Minnesota, about a recent article he wrote for Lawfare about Donald Trump's numerous day one executive orders affecting the civil service. We discuss what the orders say, how they might be challenged in court, and what this means for the next four years, and beyond.

[Main podcast]

So Nick, let's start with an overview. So what in your mind were the most significant of these civil service actions that Trump took on day one?

Nick Bednar: Yeah, so I, I think the biggest one and the one everyone sort of anticipated would be taken–which we can walk through in greater depth–was the reinstatement of Schedule F, which exempted a class of policymaking employees from the competitive service and put them in the accepted service. So I think that's the biggest one.

There's some other orders that are similar affecting different groups of employees, which we don't have to get into, they're really wonky, but like there are a lot of similar orders.

Next biggest one I think is probably the creation of DOGE, which we don't really know a lot about. but, you know, it was highly anticipated. We can talk about what that looks like.

And then the other two I would highlight—mostly because they've had a lot of fallout, less because of what the orders actually said—the hiring freeze order. And the DEIA orders banned a lot of those programs.

Alan Rozenshtein: So we'll go through all those in our conversation, but I kind of want to stay high level for a little bit first.

How does this compare to the sort of typical personnel changes that we often see in presidential transitions? Or, you know, maybe start with what are the typical such actions that we see?

Nick Bednar: Yeah, so like, let me set it out even a little broader than that, which is like, what authority does the president even have to do a lot of this, right? And the answer is quite a bit. So the Civil Service Reform Act of 1978 was passed with the idea of giving the president more control over federal hiring and even before that the Pendleton Act and the other acts that kind of fall between the Pendleton Act. The Pendleton Act is the act that creates the civil service, gave the president a lot of authority.

So presidents have always been pretty involved in personnel policy and while we typically ignore it because for a long time scholars didn't see personnel policy or the civil service as particularly sexy. It was just kind of a, you know, managerial thing that was less interesting than other forms of policy.

Alan Rozenshtein: Trump is bringing the sexy back for this.

Nick Bednar: Trump, Trump is—I don't even, I'm not even going to repeat that. I don't want to say that. But the civil service is having its heyday. So, you know, presidents have always been involved in this is point one, and they have a lot of legal authority to do so.

So what do we typically see, right? Well, a lot of what we see and is reported in the news in every administration is you see a lot of high level appointees forced to resign, right? Usually the new administration comes in, they send a letter saying, hey, we would like your resignation. If we don't get your resignation, we'd have to remove you.

Usually, as a matter of course, those people resign, acting officials step in, or new leaders are appointed, right? So a lot of what we typically see is at that high political level.

Alan Rozenshtein: And just to be clear, so when we talk about political, we're talking about people who are basically hired by the president, they can be fired by the president sort of for any reason. They are not part of the sort of civil service with the bureaucratic protections of that.

Nick Bednar: Correct, yeah. And some of them are, you know, the traditional officers of the United States who are appointed by the president and confirmed by the Senate. A bunch of others, right, are kind of low level political appointees who for various reasons are exempt from civil service protections. So, the removal of those appointees is pretty standard.

We've also seen throughout history a variety of other actions taken. So like hiring freezes are relatively common during the course of a presidential administration. The George W. Bush administration had a soft hiring freeze President Clinton had an executive order that wanted to reduce the size of the federal workforce. It ordered every agency to cut the number of career civilian personnel by 4%. Reagan had a hiring freeze and revoked a bunch of job offers.

So a lot of this, what we're seeing, is pretty standard sort of fare. Some of what we, things we're seeing, like schedule F, however, are really expanding what happens during the transition and greatly politicizing a lot of positions that haven't been politicized in the past.

And so I think that's the big change here is that the sheer level of change at the start of the administration is raising concerns about how deep into the career civil service are we going to go, and how much political influence is the president going to exercise relative to those past administrations.

Alan Rozenshtein: All right. So let's just, let's just jump in then to the specific things. And let's start with the big one, which is Schedule F. So just, just, just riff on that. What, what is, what is Schedule F? How is it back? It's under a new name. What, what is going on here? I'm still not entirely sure I understand what's happening here.

Nick Bednar: Yeah. So, okay. So Schedule F was first introduced toward the end of the Trump administration and it was never fully implemented. So there's a new executive order reinstating Schedule F. So the first question we have to ask is, well, what is Schedule F?

So most federal employees are classified in what is known as the competitive service. So the competitive service is this branch of the civil service. It's the predominant branch that requires all individuals to undergo competitive hiring requirements.

Alan Rozenshtein: And sorry, what are competitive hiring requirements?

Nick Bednar: So the competitive hiring requirements basically, so traditionally, the way this worked historically is you had to take a test and then OPM administered this test, at the time it was the Civil Service Commission. They'd administer this test, and then they would tell the agency who the top three qualified people were. Now that's been, like, incredibly relaxed over time.

Alan Rozenshtein: I did not take a test when I joined the Department of Justice.

Nick Bednar: Right. And we could talk about why you may not have taken a test, which is most attorneys are exempted under something called Schedule A.

So what are all these schedules, right? We're on Schedule F. That implies there's a Schedule A through E as well. So, the schedules are exemptions from these competitive hiring requirements. I don't know if you were Schedule A or not. But, like, most attorneys end up being in one of these schedules.

So, how do you end up in one of these schedules? How does a position end up in one of these schedules? Well, the president makes the decision. So, 5 U.S.C. Section 3302 authorizes the president to exempt positions from the competitive service as nearly as good administration warrants. Very broad discretion, right? I have no clue what that phrase is supposed to mean, right? Just, if there's a good administrative reason for exempting people from this, the president can do so.

Alan Rozenshtein: And just to back up, just so I can, I understand what the purpose of all this is, right? So if you go like—my, my understanding of the history here is that if you go back before the competitive service, everything was done sort of just pure, pure cronyism spoil system, basically your guy got into office and he just like doled out jobs. And that was bad for kind of obvious reasons.

And so you have all these civil service, good governance reforms. We're trying to get quote unquote, the best people, we use tests, whatever. But the problem is that becomes sort of overly rigid, because not everything is like super amenable to this kind of test system. And so you have to create these exemptions.

And then so you're trying to balance like on the one hand, having a system by which actually good people who picked whose loyalty is to the country, not to necessarily, purely to the president, but also giving the president some flexibility. That's the good faith trade off and balancing that has to happen here, putting aside what Schedule F is about to do.

Nick Bednar: Right. And so like, to give an example as to why we have these exceptions. There are certain jobs that are really hard to hire for, either because there aren't a lot of people or because the competitive market is so, the, the like job market is so competitive that we just need exemptions to be able to hire people faster before they get picked off by the private market.

STEM positions are a great example of this, right? Like the government needs a lot of engineers. It needs a lot of tech folk. All of those folk have great opportunities on the private market. So, like, we need some flexibility in how we choose to hire those people to ensure that we can get the best people for government, right?

So, broad takeaway is, yes, the civil service exists to ensure we have this, like, expert and experienced workforce. It's designed to protect that workforce during political transitions. The president has the ability to exempt people from the hiring process.

Traditionally—this is going to be a key part of Schedule F—even people who are exempted from the hiring process are not exempted from the 10-year protections afforded by the civil service.

So one way that we try to build a strong workforce and keep it expert and experienced, and in response to what you described as like, you know, kind of the cronyism and the I'll put my guys in, we gave civil servants due process protection, right? And so to fire a civil servant, you have to go through quite a bit of procedure to do so. And you can only fire them for certain reasons,

Alan Rozenshtein: Including me as the lawyer at DOJ who didn't take a test.

Nick Bednar: Right.

Alan Rozenshtein: I still needed, they still have a good reason to fire me.

Nick Bednar: Right. So just because you weren't hired through the traditional process doesn't mean you're not protected. But Schedule F is doing something a little weird. And so we got to talk about all of that, okay. And it all turns on this phrase, a confidential policy determining, policy making, or policy advocating character.

Okay, so what Schedule F is doing is saying, if an employee is in a position of a confidential policy determining, policy making, or policy advocating character, let's just call those policy making positions for the remainder of this to keep it short and sweet. Then we're going to exempt them from those competitive hiring processes. This is a new branch of the excepted service.

The key with that phrase is it also appears elsewhere in the civil service laws. And specifically, it appears in two other spots. The first is in the chapter related to those due process requirements that you have to undergo to fire a civil service, okay. And in that chapter, it says this chapter, these due process protections don't apply to this group of policymaking positions.

So Schedule F is echoing that language to try and make these individuals exempt, not only from the hiring procedures, but the firing procedures as well. The other place it appears is in—there's a section of the code that describes prohibited personnel actions, things you can't fire a person for, and that includes things like partisanship and political activity. And these policymaking positions, that phrase, also exempted under there.

So, in theory, right, President Trump has made it a lot easier to fire people who are designated as policymaking employees, and a lot easier to fire them too, okay? And so our concern here is, this is going to politicize a lot of personnel, depending on the reach of who is a policymaking employee.

Alan Rozenshtein: And that has not yet been determined.

Nick Bednar: So it hasn't. Not this time around, right? But there is a definition in Schedule F. And I should say, I'm going to keep calling it Schedule F just because like, I think that's the term familiar with. They did technically change the name of it to Schedule Policy Career, which I think is one, a far worse name. And two, I have no clue why they changed the name. And I don't, I don't think it affects anything other than effectively obscuring that they're doing the same thing they did the first time.

So who is a policymaking position is effectively the question, right? And they do provide a definition, and the definition is like a long list of things, the broadest of which is, it includes viewing and circulating policy documents, which if you think about, is very, very broad, okay?

And we have some evidence from the first administration as to how they sought to apply this. So, the National Treasury Employees Union, shortly after the Trump administration, sent a Freedom of Information Act request to the Office of Management and Budget and Office of Personnel Management saying, hey, how are you implementing this, right?

And what we saw is that the Office of Management and Budget, in terms of their own employees, was classifying all sorts of people as policymaking employees. So you had executive office assistants being classified. You had IT professionals.

Alan Rozenshtein: They're viewing and circulating, right?

Nick Bednar: Exactly. I mean, and you had, you know, economists, toxicologists were classified. So, when you look at that group of people, it's really hard to know who's not going to be affected by this, right?

Like, we can come up with some obvious positions, where it's like–

Alan Rozenshtein: The janitor, as long as he throws the paper away without looking at it first, because then he's viewed it.

Nick Bednar: Right, and like, maybe, you know, even less nefarious, like law enforcement officers probably aren't going to be seen as viewing and circulating, but like, once you have the word viewing policy, it's like, who isn't included in that other than, you know, the janitor and, you know, the cafeteria workers at the Department of Education.

And so it was super expansive, right? Initially, the Trump administration was like, oh, we think this hits 50,000 employees. No one really knows how many employees it hits. Based on what we saw from OMB, a lot of people think this is somewhere in the 100,000 or beyond range, easily. It's all going to turn on implementation.

Alan Rozenshtein: And who makes this decision? Is this, is this OMB ultimately?

Nick Bednar: So each agency –

Alan Rozenshtein: Or is it OPM or?

Nick Bednar: It's OPM, the agency we know that classified the most positions was OMB. They just like managed to finish the process, which is how we know how it was implemented. OPM is like actually the determiner. So OPM is the Office of Personnel Management. It's like the central human resources. department for the government. Each agency is asked to submit a list of occupations they think qualify under this, and then OPM will approve or reject those classifications.

Alan Rozenshtein: What to you is more important here? The, the exemption from hiring or the exemption from firing restrictions? I assume the latter, but I kind of want to gut check.

Nick Bednar: I think it's the latter, but I want to like hedge a little bit and say, I think they're both really important, right. And they work together. Because if you don't have to hire through the competitive service, right, and you can consider politics and political leanings in choosing to hire, when you have fired all those individuals, you can now fill them with people who agree with the president's agenda, right? So they are working in tandem.

Alan Rozenshtein: I want to steelman this just for a second. I think it's pretty clear given everything we know about Trump and the people around him that like this is not, I think, a particularly good faith attempt at government efficiency. Like this is about politicization.

But, but I do just want to take a moment to consider maybe in abstraction, the potential benefits of something like this, because like one problem, right wth government hiring is it is very often very hard to hire people. It is also very, very hard to fire people, right.

And like, I don't think the government should quote unquote run like a business that doesn't make sense for all sorts of reasons, right, but I will say this from experience—and I do think there's probably some scholarship to bear this out— like the, the inability for the government to be nimble, right, is a real problem.

And so I'm just curious, like, do you think there's a version of this that could be defensible on efficiency grounds? Or is this just one of these things where you kind of have to, you have to pick a basket of pros and cons and just commit to them that like, you know, there's, there's no optimizing here, right? Like, if you want a professionalized civil service, you have to just like a little bit like, you know—we're both academics. And so like, this is our, our version of this is tenure. Right. And like, you have to just commit to tenure or you don't have tenure, but you can't have like just enough tenure so that it's perfectly efficient.

Nick Bednar: So if we're going to talk in abstraction, right, set aside, like the current context–

Alan Rozenshtein: We will come back to the current context in a second,

Nick Bednar: Like everything I'm about to say, right, I can recolor based on what is happening.

Alan Rozenshtein: Exactly, we're going to clip this out and just have you talk about how amazing schedule F is without any context.

Nick Bednar: Okay, there is no doubt that reforming the civil service should be a priority, okay? I agree with you. Like, there are a lot of things about government that make it very hard to hire people and very hard to fire people, right? The question is, how far do you want to take it?

So, like, in the abstract, if we're just talking about excepting certain employees, I definitely think there's a case that, like, sometimes we have to move out of the traditional hiring process, right? I think there are probably ways to reform the firing process to make it more efficient, right?

The problem is that there's a lot of literature showing that what makes people comfortable working for government is those tenure protections and you could take that as a good or a bad thing, depending on how you want to look at it, right?

So one side is going to try and frame this as these are people burrowing into government to try and influence policy and undermine democracy. I personally don't think that's what the average civil servant is doing. I think most of these people do care about what they do, but they are motivated by a desire to serve the public. And they have certain policy areas they care a lot about–the environment, immigration, immigration enforcement, you know, law enforcement, right? There are a bunch of civil servants who just want to do the job and help the people.

The other thing to realize is that a lot of these people are taking a pay cut because you can make a ton of money in the private sector if you are some sort of STEM worker or you're an attorney, right? Like DOJ pays well, but if you want to be a partner at a white shoe law firm, you will make a lot more money, right? And so if you are going to be put in the situation where your entire career trajectory could be dismantled every four years, that is not an attractive job offer, right?

And government works hard, everyone beats up the civil servants, right? Both Democrats and Republicans complain about, like, the slowness of bureaucracy and the inability to get these, you know, employees to do what they want. The public doesn't like you very much. You know, you go to the DMV and you're told, oh, you don't have this document. Like you're not very happy with that person.

And so like, it's not a very, you know, rewarding position in terms of the public. It's all driven by your intrinsic motivations and you have to know you're going to be allowed to exercise what's best for the American public across multiple administrations.

Alan Rozenshtein: Okay, let's now go back to reality and the context of all that has been and all that will be. Is any of this legal? Like, can he do any of this?

Nick Bednar: I think a version of it's legal. I think a version of it is legal. What has happened here is not legal.

So the version of it that would be legal, right; I think the president, given the broad authority they have, could exempt policymaking positions. Okay? Fine. Here's what makes this dubious in how, like, it's implemented and what that order says.

I think there are three issues. The first is the breadth of the interpretation of policymaking employee. So traditionally, like if you read the legislative history about this phrase, right, the phrase of a confidential policy determining policymaking or policy advocating character–it was traditionally meant to be non-career political appointees. It's pretty clear throughout the legislative history it is how every other president has treated that phrase. And so it might be extending far beyond the traditional meaning of that text, right?

This is a precarious position if you are OPM or the president implementing this, right? Because although agencies used to receive Chevron deference for their interpretations, they no longer do, right? And so to the extent we have a president who's suddenly claiming that this phrase means this broad thing that is never meant before, right? That's questionable.

Alan Rozenshtein: And, and, and this just for, for the audience is, this is the Loper Bright decision from–

Nick Bednar: Yes.

Alan Rozenshtein: Is it last year? Time has lost all meaning at this point.

Nick Bednar: Yeah. June 28th, 2024.

Alan Rozenshtein: Excellent. And for those who are interested, we have a great podcast with Nick and some other folks unpacking that.

But yeah, I will say there is something–and we'll get to this probably more later in the conversation—there is something of a bit of an irony of this sort of very conservative, unitary executive court having issued this decision now that makes life much more difficult for the executive in trying to, implement the unitary executive theory, but you know, choices have consequences.

Nick Bednar: Maybe we will talk a bit about that and whether this is actually an impediment on the unitary executive theory or not.

I mean, I will say right just because no one's ever adopted this interpretation, it's plausible the court could go along with this interpretation. Be like, look, policymaking means involvement in any aspect of the policymaking process and the phrase includes policy determining. And in order to distinguish those two phrases, we have to give policymaking a broader breadth, right? I think that renders the phrase policy determining probably redundant and superfluous, but perhaps a court goes along with it, right?

Challenge two, right? Why is this illegal, part two. During the Biden administration. Okay. So the Biden administration, right? Schedule F first gets introduced at the end of the Trump administration. The Biden administration knows that the next Republican administration is going to try to do the same thing. And so they want to prevent it.

So how do they prevent it? Well, OPM issues a set of regulations that really do two things. Okay. First, they say policymaking employees, that phrase means non career political appointments. So they adopt the traditional meaning of that phrase to try and narrow the scope so that if Schedule F were to be implemented again, then they can't kind of take all the career officials who just have ever glanced at a policy document and put them in Schedule F. So that's part one.

Part two says individuals involuntarily removed from the competitive service to Schedule F or any other branch of the accepted service are afforded the same protections they enjoyed while in the competitive service. So you can't just get rid of those tenure and due process requirements by involuntarily moving people to positions where you know they wouldn't have.

So this poses a problem for the Trump administration, because now you have an OPM regulation and traditionally, the Administrative Procedure Act governs how we have to handle the repeal of regulations. And you have to go through the same process you have to go through to promulgate regulations. That means you have to go through notice and comment. So you have to submit to the Federal Register a proposed rule. You have to collect a bunch of comments from the public that say, is this a good idea, a bad idea? You have to respond to all those comments. And then you have to issue the final rule. Okay. It's a long and burdensome process.

The Trump administration doesn't seem to think that's what it has to do because the executive order just says the Biden era regulations are quote, inoperative and without effect and it orders the repeal of them. And the president can't just say regulations are inoperative and without effect. So there's clearly, in my mind, a challenge under the Administrative Procedure Act here.

Alan Rozenshtein: And who brings that challenge? Presumably someone who has been reclassified as a Schedule F-er?

Nick Bednar: Presumably, right? Yeah, I, I think someone who's been reclassified, I suspect there'll be a class action brought by one of the unions. That's often how a lot of this personnel policy gets challenged is like one of the unions sets a class and just, you know, goes after it. But yeah, I think it's most likely to be people who are reclassified in these positions or removed.

Alan Rozenshtein: Okay so obviously we will have you back on in audio and video format when the inevitable litigation strikes.

Nick Bednar: I will say, people have sued.

Alan Rozenshtein: You mean, already?

Nick Bednar: Yeah, yeah.

Alan Rozenshtein: Okay so we will obviously track that. There, we could talk more about Schedule F, but there's actually a bunch more stuff in this, in this EO that I want to talk about and I want to move to the next thing.

I can't believe we have to spend the next four years actually saying this with a straight face: DOGE. So we're colleagues, you're three doors down the hall from me. And I distinctly remember walking over to your office, You know, while, you know, after I'd asked you to write this, this piece for, for Lawfare, and I saw you there with this, like, stack of executive orders printed on your desk, and your, your head in your hands, I think, I think vaguely groaning. And I asked you what was going on, and you said, I'm trying to figure out DOGE, and I cannot figure this out.

Well, you figured it out, so congratulations. What is happening here?

Nick Bednar: Oh, okay, so, like, let, let me add a slight caveat to there. I have a theory about what's happening, and I don't know that everyone agrees with my theory of what's happening, but I have pieced it together the best that I can. Okay, so for those of you who, like, are not following this whole odyssey of DOGE—

Alan Rozenshtein: You are blessed and you should continue.

Nick Bednar: Yeah, so DOGE; one, like, let me first say, what is this name? So DOGE is an acronym, allegedly, for Department of Government Efficiency. What you need to know, and what I have realized a lot of legal scholars have not figured out, but maybe I am just of a certain generation, DOGE is also a meme. It is a meme of a Shiba Inu.

Alan Rozenshtein: A very cute Shiba Inu.

Nick Bednar: Yeah, it's very cute. It looks very surprised. It is also a cryptocurrency based on the meme that Elon Musk touted for a very long time.

Alan Rozenshtein: Purely for fun, for the ‘lolz’, as the kids say. This is maybe, honestly, DOGE might be the greatest backronym in the history of the U.S. government, probably.

Nick Bednar: And like, just to like, make it clear that this is not some sort of fluke, that like, oh, DOGE just happened to be like, it's related. They put the DOGE website online, like the doge.gov website, and put a picture of a Shiba Inu, like it's a cartoon drawing of this cute dog. So that's what this is. It started as a meme.

And originally it had Vivek Ramaswamy and Elon Musk leading it. They published this long op-ed in the Wall Street Journal saying we're gonna fire every civil servant to reduce the federal government by $2 trillion. I'd like to point out it wouldn't reduce the deficit of the government by $2 trillion. We don't pay that much in salaries every year.

Alan Rozenshtein: Yeah, if you want to reduce 2 trillion, you have to go after entitlements and the military, which is just a totally separate conversation and something Donald Trump will never, ever, ever do.

Nick Bednar: Exactly. You know, some of the other things they were going to do is like, we're going to end telework. They have this like, bunch of things they're going to do for federal personnel policy.

Okay, so there are a couple different orders that matter for understanding DOGE here. I think most people have been focused on one of the orders, which is the creation of DOGE; I think you actually have to look at the other orders to understand what DOGE is actually doing.

So let's start with the creation of DOGE and what DOGE is, and then I'll talk about what DOGE is supposed to do.

So prior to the inauguration, everyone thought DOGE was going to be a federal advisory committee. So there's this act, the Federal Advisory Committees Act, that regulates the use of advisory committees by the president. It requires public meetings. It has a bunch of transparency requirements. It also requires viewpoint balancing. So an advisory committee has to have a you know, balanced group of commissioners who informed the president about this issue. So it actually has like a lot of really nice, good government requirements.

And everyone was basically writing op-eds saying, DOGE, meet FACA, which is the Federal Advisory Committee Act. And regardless of what the president does, it's going to be subject to FACA. Even before we get this order, three groups sued under the Federal Advisory Committee Act to try and invalidate DOGE as a violation of FACA.

But that's not what the Trump administration did. Instead, they did this really interesting thing, which is they just renamed an existing agency. So the agency they renamed was the United States Digital Service. It's a bureau office within the Executive Office of the President. It was originally created by executive action by President Obama and it was designed to modernize federal technology within agencies and how they use it.

And so all they did to create DOGE was they just renamed this agency to the DOGE service, and that gets out of a lot of the FACA requirements because now it's just an entity within the Executive Office of the President. They also do some like other weird things here. They create like a temporary 18-month office within the United States DOGE Service and that temporary agency is supposed to carry out what is called the DOGE Agenda. And I think that is where Musk is going. But that's like the creation of this agency.

I think where people might be getting tripped up is on what the DOGE Agenda is. Because I've seen a lot that focuses on like one portion of this executive order that talks about like, USDS—the Digital Service, now the DOGE service—continuing like its implementation of technology.

Alan Rozenshtein: We're going to upgrade fax machines and get Windows XP installed on all the computers.

Nick Bednar: Yeah. So like, I think a lot of people are tripped up because they're like, okay, so all DOGE is—all Elon Musk can do is modernize computers. Which would be a great thing to be clear. Like the IRS is operating on computers that are decades old and should be upgraded. Like there's a lot of free points to whoever chooses to modernize technology in the federal government. The federal government is single handedly keeping data deck companies afloat.

But if you read the executive orders, it's very clear that's not all DOGE is tasked with doing, right. There is a broader executive order that requires every agency to create a federal hiring plan. DOGE is to review those. Or like every agency is supposed to like appoint, a DOGE working group of four people. It has to include like a manager, an engineer, an attorney, I think a human resource officer—I don't quite remember what the four are. But it's very clear that DOGE's mission is much more to do with personnel policy than technology policy.

So I think they are purposely keeping that modernization of computing stuff in there, because that is what the agency was initially tasked with, but I think the mission is expanded if we look at the other orders.

Alan Rozenshtein: In terms of legality of all of this, am I right to say we'll just have to see that, like, you can set up, you can rename the Digital Service and change its mandate; the real question is, okay, what actual things does the DOGE do substantively, and are those things okay?

Nick Bednar: I think that's right. You know, the president definitely has authority to set up temporary agencies. There's broad hiring authority for those temporary agencies.

I haven't seen anything that immediately raises red flags in terms of legality. That doesn't mean there isn't anything there, but I think we're going to have to wait for implementation.

Alan Rozenshtein: Okay, I, I want to talk about sort of the broader–some broader issues. But before I do that, I want to hit, if you wouldn't mind kind of rapid firing through sort of a couple other things you mentioned, just kind of very briefly describe sort of what's going on there and if there's sort of any kind of obvious legal or bureaucratic red flags.

And so you have remote, remote work; we're all going back to the office. You have–and I think this has been the most public thing cause you're seeing a really, really quite heavy handed purge of anything DEI related throughout the government and then a hiring freeze—which I don't know about you, Nick, but it certainly has affected some of my students quite directly.

Nick Bednar: Yeah. So let me rapid fire through all of them.

We're going back. I want to make two points with this. So like, first clarify, there's an executive order that says agencies should strive to bring all of their workforce back. For some reason, the White House posted this thing on its website that said only 6 percent of federal employees work in the office. That's nowhere near true. I don't know where that statistic comes from.

Only about half of federal employees are even telework eligible. Most federal employees are required to be in the office. 60 percent of the work hours spent by telework eligible employees are still in the office. So this isn't as big of a problem as the administration thinks it is, I don't think. The Biden administration also tried to tackle it. Gives broad authority to exempt positions from this. So I don't think it's going to be a lot of change.  

The big hiccup here for the Trump administration is the Biden administration negotiated with a lot of labor unions to include telework promises. And so it is looking like they are going to end up violating a lot of those collective bargaining agreements. I mean, theoretically the agency heads could do the right thing and exempt all those employees. I suspect some will do that and there will be at least one agency that doesn't and that's going to set up review of the collective bargaining. Okay. So that's I think all I'm going to say about remote work.

The DEI stuff. So the Trump administration, I mean, this has a much broader impact than just the federal workforce. I'm just going to hit the federal workforce stuff, but there's a lot out there on what the Trump administration is doing with DEI and you know, setting a federal definition of gender and sex–

Alan Rozenshtein: And repealing the famous LBJ affirmative action EO and all this federal contractor stuff. Yeah, this is a much broader conversation, but let's just focus on the, within the agencies.

Nick Bednar: Yeah, so, the big thing is the EO tells, tells agencies to wind down all their DEI programs and gives a pretty hard stop right away.

What happened almost immediately after this order was issued is every agency was instructed by OPM to basically dismiss all of their employees in these DEI offices and work on terminating their employment. So that's what's going on there. We saw that almost immediately.

I got a lot of reports right away from civil servants that a lot of people had been laid off effective immediately, or, you know, placed on leave pending termination was a probably the more legally correct way to do it. But I've heard mixed reports as to how this went down.

Alan Rozenshtein: And to be clear, like this is a, this is a message that they're sending because like they could have reassigned people and they appear to be just like lopping heads off instead.

Nick Bednar: Absolutely, and I mean, a great example of this is—so the rear admiral of the Coast Guard, like the head of the Coast Guard, was the first woman ever appointed to the role and was fired explicitly for engaging too much with DEI.

And so like, it's a pretty clear messaging thing about the administration's priorities and, you know, this happens a lot with the federal workforce where the president uses personnel policy as a signaling device about their other priorities. During the Obama administration, Obama issued an executive order requiring all federal employees to wear seat belts.

Alan Rozenshtein: Presumably in government vehicles, not like at home.

Nick Bednar: I think it's in government—I would have to reread the order. It's a long order. It is much longer than you would think for an order that's just like, please wear your seat belt. But you know, this sort of signaling is pretty common with federal personnel policy.

So I think we have a, like, we have to wait to see what happens with a lot of that. I, I don't—like the federal personnel stuff's really important there, but there's also just like so much of the DEI stuff. We're going to see all sorts of challenges brought with respect to a lot of that.

The final thing we were going to talk about right in rapid succession, hiring freeze. Lots of presidents use hiring freezes, okay? This isn't new. Carter had three of them. Reagan had one. The Bush administration had a soft one. The Obama administration froze hiring of certain senior executive service employees, okay? The Trump administration, start of its first administration, also had a hiring freeze. The memo's almost verbatim the same memo, okay? So hiring freezes themselves, not that common.

I think where this is a big deal is they also revoked a lot of job offers. And that's upsetting a lot of people. So, if you are not an attorney, you probably are not aware of the Department of Justice Honors Program. The Honors Program is the, is a primary way that law students find their way into federal government service.

Alan Rozenshtein: It is, I should say, how I started my career, and was like absolutely central to my entire life since then.

Nick Bednar: Yeah, and like, it's a very prestigious position, like, I think. And, you know, a lot of really talented law students end up in this program. And like, you have to work hard, I think—I won't say how hard Alan worked in law school, to end up in this program. Okay. And they revoked all the offers for the honors program. I'm also hearing they revoked all the unpaid summer internships, which is just baffling in some ways.

So the question is, is that legal? And the answer is yes. There's pretty strong precedent that you do not become an employee who enjoys civil service protections until you actually start your job. That is, you are in the office, like, implementing federal programs or, you know, engaged with federal work. The mere fact that you are hired for a future start date is not enough to afford you those guarantees.

The reason we know this is that the same thing happened in the Reagan administration. Now, in the Reagan administration, the Department of Justice sought to exempt its Honors Pogram people. Some of them ultimately got hired, some did not. We're not seeing that here. If you want, like, a case study of everything that's going on, just do a search for the Department of Justice and, like, federal employees.

There's a lot that we don't have time to talk about that is like reverberating through DOJ. And it is just a case study in the havoc that is currently going on among federal employees.

Alan Rozenshtein: Okay. So we've now discussed the sort of the substance of all of these executive orders. And again, to be clear, right, there's a lot more of them, and I think for folks who want a deeper dive, like we've actually only sort of scratched the surface. Nick's piece on this is really excellent and goes into much more detail.

I want to talk about implementation and sort of constitutional issues and all this sort of stuff. So let me start with an implementation question. How much do we expect any of this actually be instantiated immediately? And how much of this do we expect to be immediately totally snarled up in litigation for months, if not years, right?

Like presumably some stuff is like, the president can order the CIA to like stop having a pride month for like DEI reasons, presumably that the president can do and that's like been done. Is most of this like that or is a lot of this just gonna be immediately like, is gonna run straight into like the federal court, federal court's own bureaucracy?

Nick Bednar: Yeah. I'm gonna be honest. I don't know. Traditionally what I would tell you is like someone's gonna file for an injunction. An injunction will be granted, all this will be paused. In year three, maybe the policy gets implemented, right?

This is kind of how litigation against the federal government often works, right? You saw this in the Trump administration with things like the travel ban, right? Things that were like supposed to be implemented on day one took years, or, you know, were completely struck down by the courts for various reasons. So the answer is, I don't really know.

And it's kind of complicated for two reasons. One, there's already litigation ongoing, right? So people are already suing. We knew a lot of this was going to happen. Everyone knew schedule F was going to be reinstated day one. They said schedule F was going to be reinstated day one. People had already written the briefs and the complaints. Right? They're already filed.

Same thing with DOGE. I think the challenges that have been filed against DOGE are going to need amended complaints. If they're going to be sustained, like they're under the wrong statute at this point, I think. So some of this is already being challenged.

But there's some of it that was implemented right away, right? The firing of the DEI officers, the revocations of the job officers, the hiring freeze. Some of this isn't going to have strong legal grounds and those will probably be implemented almost immediately.

The other thing is like an unintended consequence of all of this, which is it might not matter if any of it's legal or if it gets tied up, people will leave anyway. So there's like pretty strong research in political science, Mark Richardson has a wonderful paper on this, that says, when you politicize the federal workforce, it encourages people to leave sooner.  And I know people who are considering leaving. I know people who have left.

And so to some degree, right, maybe it's not legal. I don't know. I have a hard time predicting what the courts are going to do anymore. I was wrong about Chevron, and I could be very well wrong about a lot of this, right? It might not matter because people might just leave, and the Trump administration might get what it wants anyway, which is to just diminish the federal workforce until it's ineffective.

Alan Rozenshtein: And, and destroying is easier than building, right? Like what, what can take literal generations of hiring and training and acculturation and norms and institutional knowledge can be destroyed—if you're willing to bring a big enough wrecking ball in a year or two.

Nick Bednar: So, if I can riff on that for a second, like, two things here. One, I don't know very many people who are interested in working for the federal government right now. There are some! Like, to be very clear, I do know some people who are actively applying for positions in the federal government, and they're very excited to go work for the Trump administration.

But the, like the traditional kind of career employees, like people I know who would go work for the federal government for the duration of their career, I'm not seeing them file applications. I see a lot of law students who are very hesitant about going to apply for attorney positions in the federal government, where traditionally it didn't really matter who was president. You kind of just thought like, I'm going to go work as a attorney in the federal government. I want to be in a U.S. Attorney's office. I want to be in DOJ. And yeah, sure. There's a Republican president today. I'd prefer a Democratic president or there's a Democratic president today. And I'd prefer, prefer a Republican president, but there'll be another one tomorrow, right?

And federal employees by and large are driven by their mission, not by who's president. That's why the average tenure of a federal employee is 12 years, okay? It spans multiple presidential administrations. Okay. So, one thing is like, I don't think people want to apply, and so as soon as it's gone, right, it's gone.

The second thing is, we have to talk about what the implication for this is for implementation of federal programs. Like, I think part of the reason the civil service often gets neglected by scholars is because we don't draw the line between how well programs get implemented depends on how strong, expert, and experienced the federal workforce is.

Alan Rozenshtein: Yeah, everyone needs to go immediately reread Michael Lewis's “Fifth Risk,” right, which is this book he published, I think, during the first Trump administration. If you haven't, I see, I see Nick—oh, yes, excellent. This is great for, for our YouTube for our YouTube audience. Nick had it literally next to him.

Yeah, and this is, you know, Michael Lewis, the famous journalist here with this amazing book. I think during the first Trump administration, or maybe I don't remember what it was, definitely after, you know, after Trump was elected the first time, just going through and visiting all these, like, incredibly competent, uber niche nerds in just like the weirdest bowels of the federal government and being like, you have no idea who this person is. But he makes sure that like, when you eat corn, you don't get poisoned. And like, it'd be a real problem if he left.

Nick Bednar: Right? I mean, one example, just to like give the most mundane possible example of government work, right? Like, most people have some sort of weather app on their phone. Right? And they think, oh, Google or Apple has their own meteorologists who are figuring this stuff out. That's not true.

Alan Rozenshtein: The biggest scam the Weather Channel ever, ever did was convincing Americans that it's not just free NOAA data that they then resell.

Nick Bednar: Right. Like, all weather prediction and all weather data comes from the federal government. And that's a problem if those people leave. Like, it's a problem not only for, you know, the people who left, they don't have jobs anymore—I'm sure they will find jobs. But it's a problem for farmers, who depend on those sort of predictions to know when to plant. It's a problem for me, who has to drive to the office, often in blizzard conditions, to know whether there's a blizzard outside. You know, it's a problem for people in New Orleans, who want to know if they need to buy a heavier winter coat.

So, these people do a lot of work, and there's a bunch of other work in political science that says, we, the public, don't appreciate that work. It's kind of unseen. So Susan Mettler has this book that's phenomenal called “The Submerged State.” It talks about how people love government programs. Like if you ask them about the like thing broadly, like roads, they love it. And then if you ask whether the government should be involved in it, they're like, absolutely not, that's a terrible idea.

Dan Walters and Gabriel Scheffler have an article riffing on this from the administrative law side that came out recently in I think Wisconsin Law Review, but the point is people don't appreciate what civil servants do.

The other point is the Trump administration doesn't appreciate what civil servants do and it doesn't understand that what it's about to do is going to hurt its ability to implement its own agenda. And maybe it doesn't care. Maybe it's decided this is fine, but two examples of this.

Number one, the Trump administration wants to deregulate. Although the Trump administration seems to think that they can just issue executive orders that say certain regulations are inoperative, they cannot do that. And the federal courts last time constantly swatted the Trump administration down for failing to follow the Administrative Procedure Act. There is no reason to think they're not going to continue to swat stuff down. I have a paper that is forthcoming in Stanford Law Review that shows agencies that lack that workforce to do that work take a lot longer to repeal regulations or implement regulations, and they don't do so very well.

Point two, there's a hiring freeze, but not for every agency. There is another executive order that says that the Department of Homeland Security needs to hire a bunch of border protection officers. We've known this for a long time. It has been a long issue. Okay. The Biden administration got authorization to hire more CBP officers. The first Trump administration got the same authorization.

We've known for a long time we need more CBP officers, or at least people perceive we need more CBP officers.  They're not coming. And the applications are down. The retention is down and the Government Accountability Office has tried to figure out why it's a morale problem.

And if your entire agenda is I'm going to attack civil servants, people aren't very interested in applying for the government in almost any agency. And there's no indication that they're going to fix the morale problem in Customs and Border Protection. And they're certainly not helping by attacking government workers broadly.

And so I think the Trump administration got in week one, what it wanted, which was to frustrate the federal workforce, and I'm not sure it's going to get what it wants in years two, three, and four, but we'll see.

Alan Rozenshtein: I want to close by sort of getting at, I think, maybe what was the most provocative point in your piece, and one that I do agree with, and I think recent events, and it's crazy to talk about recent events, given that this has all been a matter of days, but history is moving quickly, has borne out, and this is the kind of higher stakes, read between the lines constitutional game that the Trump administration is playing.

So just describe the sort of constitutional rhetoric in these executive orders, and what do you think is happening here? And, and if you want to also bring in—obviously this happened after you published your piece, but I think it's extremely relevant, which was Trump firing some, I think 17 or 18 inspectors general in violation of the congressionally mandated 30 day waiting period, which I suspect is, is a similar constitutional play to the one that you sort of hinted at in your in your piece, but riff on that.

Nick Bednar: Okay, so a fundamental contextual point that I think you have to understand to understand where I'm going, which is what is the unitary executive theory? So unitary executive theory is a theory of executive power that is founded in Article 2 of the Constitution.

I won't get into like the nuances of which provisions mean what or exactly what powers the president has, but the Constitution broadly says that the executive power is vested in the president and the president has to take care to ensure that the laws are faithfully executed. And from that, a lot of scholars have drawn the proposition that the president has significant authority to manage subordinates. Because if the president is the executive power, all executive power must be derived from the president himself, or herself, and therefore the president has to be able to control the subordinates. Okay, that's like the broad principle.

So, I've already talked about how a lot of these orders seem to violate statutes or regulations or other things. There's a loophole here, right? Which is, if for some reason, the entire civil service is unconstitutional, then it doesn't really matter.

Alan Rozenshtein: And when you say civil service, you mean the, the limitations on the president's power to do things to the civil service.

Nick Bednar: Correct. Right. Right. If this tenure system that we have built and the due process protections that are afforded to federal employees are unconstitutional, then a lot of this is moot. Right? It doesn't matter if the president violates the Civil Service Reform Act all that much, if huge portions of it are unconstitutional anyway.

And my opinion is that they are purposely doing a lot of this to invite that challenge. So if you read a couple of the orders, and I'll talk about a lot of the language, you see the like language that evokes unitary executive theory throughout.

So the order reinstating Schedule F begins: Article 2 of the United States Constitution vests the president with the sole and exclusive authority over the executive branch, including the authority to manage the federal workforce to ensure effective execution of federal law.

There is a separate order that we didn't really talk about because it's like more wonky. If you want to read my piece, I get into this really wonky order, but it's about, it makes, or it seems to make certain folks removable at will, a different group than the Schedule F folks. And it really pounds on executive, unitary executive theory.

So it begins by quoting this case, Seila Law v. Consumer Financial Protection Bureau. That case—and where a lot of this litigation and this like theory have been involved—concerned the four cause removal protections of the director of the Consumer Financial Protection Bureau.

So there are a bunch of independent agencies in government that have these provisions that say the heads of the agencies or their commissioners cannot be fired except for cause. And the Seila Law case struck that down with respect to the head of the Consumer Financial Protection Bureau. There's some other cases that have done similar. But Seila Law stated in the executive order quoted, the executive power, all of it, is vested in a president who must take care that the laws be faithfully executed. Because senior executive service officials wield significant governmental authority, they must serve at the pleasure of the president.

So this seems to be the play. They think there's a constitutional hook to all of this, and—

Alan Rozenshtein: And a receptive Supreme Court, which they might be right about.

Nick Bednar: Right, and they think there's a receptive Supreme Court, and there's, you know, it's unclear how far the Supreme Court will take this, and I don't, I'm, I'm not gonna make a prediction as to, like, who's on what side here.

I will say this: we do know that there are lower court judges who are in favor of this theory. So Judge Ho on the Fifth Circuit has a concurrence from last year, stating that it's time for us to reconsider the constitutionality of the civil service. That's not really a neutral point. If you read the concurrence, it's pretty clear what he thinks the answer to that question is.

Most people don't raise that question unless they have a fairly firm understanding of—

Alan Rozenshtein: You don't think he's just asking questions, just a guy asking questions?

Nick Bednar: You know, sometimes judges do, right? They say like, we don't need to consider this, but people should ponder it. And I don't think—I think Judge Ho has done all the pondering he's going to do.

Another piece of evidence that this is going on. So four officials in the Executive Office of Immigration Review—which are the immigration courts, they're actually part of the Department of Justice—they were fired in the first two days. One of them received an email, and they were all career officials, who could not simply be fired. Okay, it's pretty clear to me that the firing was illegal.

The justification listed for one of the officials—I don't know about the other three—was Title II of the U.S. Constitution, which I would like to point out is not a thing.

Alan Rozenshtein: Wait, wait, wait, I'm sorry. Title II of the U.S. Constitution. That's good.

Nick Bednar: That's correct.

Alan Rozenshtein: That's good. That's, that's almost, that's almost as good as the recent White House press release imposing sanctions on Columbia with a U, which is the university, not the country. But this is—I mean, this would be funny if it was not quite so horrifying.

Nick Bednar: Right. So, if they don't know which section of the Constitution they think they're operating under, they probably don't know all the obscure text of the civil service laws, and the answer is, I don't think they care.

I think they really want the constitutional hook, and they view this as the most opportune moment, given the composition of the Supreme Court, given the composition of the lower courts, to really press unitary executive theory and argue that a large swath of civil service laws that have existed are unconstitutional.

And the consequence of that would be—I mean it would depend on what exactly the court does. But it's very clear what the Trump administration wants to be able to do is hire and fire people at will and that would result in significant politicization. And we would effectively be back to where we were before the Pendleton Act.

Alan Rozenshtein: Well, I think we're gonna leave it there Nick, I suspect that this is not the last time that you sherpa Lawfare and its readership and listenership through all of the civil service drama.

You know, look, Trump is at least making—what did you say, he's making the civil service relevant again. So there's, there's always that.

Nick Bednar: You know, I'll end with this, which is a lot of people have texted me or emailed me over the week. A lot of scholars from other institutions asking me if I've slept in the last week or whether they can order me takeout.

Alan Rozenshtein: If you want to thank Nick, buy him a Grubhub gift certificate.

Nick Bednar: I'm sure I will be back. I don't think day one was the last of this.

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