Alarming Developments in the
United States
Presidential Power Used to Attack and Restructure Federal Workforce
- Kathleen Chandler -
In October, U.S. President Donald Trump issued an
executive order calling for perhaps hundreds of thousands of federal
workers to be re-classified in a manner that would basically render
them "at-will" workers. It allows the executive to fire the workers
without cause or recourse, hire without regard to existing contracts
and standards, and deny other protections. They would also be denied
union representation. All federal workers considered to be serving in
"policy-determining, policy-making, or policy-advocating positions,"
are to be reclassified into this new "excepted service" hiring
authority, called Schedule F. President-Elect Biden has so far not said
if he will try to rescind the executive order.
Trump called on department heads to identify all
such workers no later than January 19, the day before he is scheduled,
at this point, to leave office. On November 23 it was reported that the
Office of Management and Budget (OMB) will reclassify 88 per cent of
its workforce (425 workers) to Schedule F. While OMB is relatively
small, it plays a significant role in proposing and managing budget
affairs. The change gives the president greater authority in such
matters. Generally the process is being fast tracked and the Energy
Department is also said to be moving quickly to reclassify workers.
The executive order makes clear that the aim is to
remove existing barriers to the executive arbitrarily hiring and firing
federal workers, including senior workers: "To effectively carry out
the broad array of activities assigned to the executive branch under
law ... requires that the President have appropriate management
oversight regarding this select cadre of professionals. [... A]gencies
should have a greater degree of appointment flexibility with respect to
these employees than is afforded by the existing competitive service
process. [...] Agencies need the flexibility to expeditiously remove
poorly performing employees from these positions without facing
extensive delays or litigation.”
The action is a direct takeover by narrow private
interests of the civil society arrangements. It is an attack on the
unionized federal workforce, removing agreed practices for hiring and
firing and performance standards. It also serves as a threat to all
workers and imposes downward pressure on their working conditions. As
is occurring more generally, a contract is no longer a contract, and
service is no longer for the public good.
Federal workers have protested the executive order
and called on Congress to block it. The President of the American
Federation of Government Employees, the largest union for federal
workers covering 670,000 workers said: "This is the most profound
undermining of the civil service in our lifetimes. The president has
doubled down on his effort to politicize and corrupt the professional
service. This executive order strips due process rights and protections
from perhaps hundreds of thousands of federal employees and will enable
political appointees and other officials to hire and fire these workers
at will." The National Treasury Employees Union, which includes the OMB
workers, has filed a lawsuit saying the Executive Order is illegal as
it supersedes existing law.
The process involves the heads of the many
government departments deciding which workers fall into the new
category. Their recommendations are then sent to the Office of
Personnel Management (OPM) which has the final say. However the
definition for what constitutes "policy-determining, policy-making, or
policy-advocating positions" is not provided. A memo issued by the OPM
giving guidelines states: "Neither the U.S. Code nor judicial
precedents precisely define these terms in the context of their
statutory usage." It then repeats the generalizations provided in the
executive order, which are very broad. They include any worker
conducting "collective bargaining negotiations," "viewing, circulating
or otherwise working with proposed regulations, guidance, executive
orders, or other non-public policy proposals or deliberations,"
"substantive participation in the development or drafting of
regulations," or "substantive policy-related work in an agency."
Participation in any one of these would mean reclassification. The OPM
could authorize firings even before January 19, based on
recommendations from department heads.
Commonly the vast civil service bureaucracy
remains in place from one administration to the next. This includes,
for example, most of the 760,000 civilian workers at the Pentagon and
many of the 240,000 at the Department of Homeland Security. The
executive order is not simply creating an "at-will" workforce. It is
also restructuring this bureaucracy so that it is unstable and,
according to the self-serving calculations of those mandating this
executive order, less of a force for the executive to contend with. It
also serves to remove the memory an established workforce carries with
it in regard to standards for themselves and for governance more
generally, including those for accountability.
There are currently proposals in Congress not to
fund the executive order, though that is not likely to prevent various
department heads from moving forward with it or block the start of
firings.
Letters have been sent to Congress opposing the
executive order. They bring out its restructuring quality and
strengthening of the executive power. Speaking to hiring and firing
protections, one letter states that current arrangements "do not exist
for the sake of the civil servants themselves, but rather to ensure the
government delivers services insulated from undue political influence.
They ensure continuity of government through changing administrations,
preserving institutional knowledge and expertise within the government.
They safeguard the rule of law, protecting employees choosing adherence
to the Constitution rather than political party. The need for Congress
to act is urgent, especially as we are in the midst of a transition.
Failing to act will set a dangerous precedent, signaling congressional
indifference to a substantial expansion of executive power. The
executive order upends a longstanding legislative framework that
ensures a nonpartisan civil service -- a framework that assures the
laws Congress passes will be implemented as written, and the funds they
appropriate will be disbursed as directed. If Congress remains silent,
it indicates acceptance not just of this executive order, but of future
administrative actions to dismantle the legislative framework
supporting a nonpartisan civil service."
President Trump's mission as president was to
break the bonds of existing governing structures and rule of law at
home and abroad, following Obama's deportations and drone warfare.
Trump's actions with child detention camps at the border, repression of
demonstrators using federal forces, and more recently disregard for
transition norms are just a few examples. He has consolidated a
government of police powers by eliminating limitations on these police
powers and applying them more openly at home, as well as abroad. The
more the executive concentrates the monopoly of the use of force in his
hands, the greater his ability to act with impunity, which is to be
considered "normal." The executive order is one such example of
attempting to broadly attack the federal workforce and restructure it
in a manner that favours executive police powers. It is part of
destroying even the concept of a civil service dedicated to serving the
public good -- something made all the more obvious as many of these
workers are critical to providing needed health and welfare services
during the COVID-19 pandemic.
All of it shows that workers in every walk of life
and field of endeavour must create new forms of organization and
resistance given that everything the president is doing is not outside
the Constitution. It is crucial to not permit the space for change to
be occupied by arch reactionaries who are hell-bent on turning the
entire workforce over to narrow private interests, accountable to no
one.
This article was published in
Volume 50 Number 47 - December 5, 2020
Article Link:
Alarming Developments in the
United States: Presidential Power Used to Attack and Restructure Federal Workforce - Kathleen Chandler
Website: www.cpcml.ca
Email: editor@cpcml.ca
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