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Jan. 25, 2025 - Epoch Times
44:20
Why It’s ‘Almost Impossible’ to Fire a Federal Employee: James Sherk
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Time Text
They have no accountability to the American people.
The fact that the career staff can delay rules they don't like by an extra year or a year and a half, in many cases that can kill the policy.
Presidents need to be able to fire bureaucrats that engage in insubordination or intransigence, says James Shirk, director of the Center for American Freedom at the America First Policy Institute.
Shirk was deeply involved in such efforts, most notably in the drafting of the Schedule F executive order during the Trump administration.
If you're an attorney, you represent your client.
And in the justice department, your client is in the United States, and you're there to enforce the laws.
You shouldn't get to say, these are the laws I like, these are the laws I don't like, I'm only going to work on these laws.
It is just a nightmare trying to fire from an employee.
And in many cases, more often than not, they get reinstated.
And you're going to have to cover their attorney's fees and give them back pay.
This is American Thought Leaders, and I'm Jan Jekielek.
James Shirk, such a pleasure to have you on American Thought Leaders.
Thank you for having me on.
So James, you recently wrote an op-ed in The Wall Street Journal, which really caught my attention.
The president needs the power to fire bureaucrats.
It's kind of an interesting moment to be publishing such an op-ed.
So tell me about this.
Well, in theory, the president runs the executive branch.
We have an election, people pick who they want to be the president, and all executive power per the Constitution is put in the president, and the federal bureaucracy is supposed to do what the president says.
That's not how it works in practice.
The way it works in practice is that these federal employees have very extensive removal protections.
It's not impossible to fire a federal employee.
It's just almost impossible.
And a ton of work in a very high likelihood that it's going to get overturned.
And so in practice, these career federal bureaucrats think they're invulnerable because they've got these extensive protections.
They have a lot of ways to try and stymie the president's agenda and, in many cases, successfully block him from taking policies, even if he campaigned on them.
Even if it was a presidential...
The bureaucracy, because of these civil service protections, is empowered to basically say, yeah, but we know better and we're not going to do this.
No one votes for these bureaucrats.
They have no accountability to the American people.
And if the government is wielding its vast power in a manner divorced from what the elected representatives in Congress and the White House is saying, then you have an unaccountable government.
And it's a huge problem in a country founded on the principle of government by the consent of the governed.
You know, so why now?
Why at this moment are you publishing this?
It's gotten a lot of attention recently.
I served in the White House under President Trump for all four years.
Part of my responsibilities there was working on civil service issues as well as some regulatory issues.
And in the White House, I would just get constant reports from my counterparts in the different federal agencies about all the things that federal employees were doing to make it harder for them to implement the president's agenda.
We put out a report in February of this year documenting this.
But I think, honestly, what's happened is there's been more attention to an executive That executive order was in the news recently.
There was some Axios reporting that prompted some members of Congress to basically introduce legislation to say that no future president could ever bring back this executive order.
Biden rescinded it.
And then I published this op-ed in response to say, no, actually, we need this.
If we want to protect our democracy, if you in Congress want the executive branch to implement the laws you passed, the bureaucracy has to be accountable to the people's elected representatives.
And it's not right now.
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You did put out this report in February, so maybe give us some examples of the sort of problems that you encountered.
Yeah, I mean, there's a lot of problems with the federal workforce.
A lot of people are familiar with the stereotype of the incompetent, lazy, poor-performing government employee.
There's a good number of those folks.
Surveys of federal employees themselves show that there's a lot of those folks, and it frustrates the federal workforce.
But they're not actually the biggest problem.
The biggest problem are the very smart and capable and highly motivated people who don't like the president's policies and are very capable of using their positions to block it.
The way the government is staffed is you have about 2.2 million people in the executive branch.
It's a huge bureaucracy.
And there's 4,000 political appointees.
So the political appointees are there to provide high-level direction and supervision and policy directions with the expectation that the career staff are going to faithfully implement those orders.
If they decide they don't want to carry out those orders and they're protected with these removal protections, they're simply not orders of magnitudes near enough political appointees to do that work instead.
So one example, the Department of Justice Civil Rights Division is notorious for having very ideologically motivated career staff.
And many, many, many times during the Trump administration, these career staff were told, well, there's projects we want you to work on.
And the answer that came back was no.
Go pound sand.
So, for example, Yale University.
There's an investigation into Yale University and massive, massive racial discrimination in admissions at Yale University.
If you're a Caucasian, and especially if you're an Asian American.
And so the leadership in the Civil Rights Division said, look, the law says there's no racial discrimination allowed.
This is unjust.
We want to file a suit.
And the career staff would not draft the complaint.
So it had to be drafted by political appointees.
Then after the political appointees drafted it, they turned around to the career staff, the division responsible for policing racial discrimination in educational institutions, and said, all right, now we need a team of lawyers to pursue this case.
And the answer that came back was no.
None of us are willing to work on this.
Now, they were able to bring the case at the end of the day because they were able to poach staff from other components of the Department of Justice that were less political.
So they took some employees from the Civil Division, from the U.S. Attorney's Office in Connecticut, where Yale is located, a political appointee, and they're able to bring the case.
But you can do that with one case.
You can't do that with 50. Okay, so let me get this straight.
You're telling me that they just simply flat out refused the order?
They were asked to assemble the team, and the answer that came back was, no, we're not going to do that.
Now, my understanding is they were not ordered to work on it, but look, if you order them to work on the case, then you've got attorneys working on a case who deliberately want to tank the case.
And so it's, you know...
It doesn't get you what you need.
And in fact, what the political appointees learned subsequently is that the more senior career staff were, in so many words, threatening the junior career staff and saying, hey, anyone who helps the Trump politicals with this case, there will be career repercussions against them when Trump leaves office.
Another example, obviously, the abortion debates have been in the news a lot recently.
There's a lot of mixed opinion, split public opinion on abortion.
But one area where there's overwhelming consensus is that doctors and nurses should not be forced to participate in abortions.
This is something, if you take a look at polling for decades now, 80-90% of Americans believe that you should have these conscience protections.
And Congress also agrees and passed something in the 1970s called the Church Amendments, named after the Democrat Senator from Idaho who introduced them, that says, look, if you're a hospital that takes federal funding, you cannot force your staff to participate in an abortion.
But there's no private right to sue.
It has to be up to the Department of Justice to enforce these things.
Well, the career staff in the Civil Rights Division, they were not willing to work on cases that enforced them.
And so again, during the Trump administration, political appointees were able to bring one case that they had to handle themselves against a hospital in Vermont that did that.
and you can do that for one or two cases but you don't have nearly enough political appointees to litigate 15, 20, 30, 50 cases and again it's a public record you can look at the lawsuit that was filed you can look at the names of the attorneys who are on there and none of them were career employees in the Department of Justice they decided for themselves that who cares what Congress thinks who cares what the voting public thinks who cares what the White House thinks we don't support these conscience protections and therefore we will not do anything to enforce them If you're an attorney, you represent your client.
And in the Justice Department, your client is in the United States and you're there to enforce the laws.
You don't get to say, you shouldn't get to say, these are the laws I like, these are the laws I don't like, I'm only going to work on these laws.
It's one thing also to kind of slow walk things.
You hear about these sorts of situations all the time in the private sector.
You get something, you're not too keen on it.
Well, we'll just take that one quite easy.
Maybe it'll take five times as long.
Who knows?
This is a whole different beast you're describing here.
Yes.
Yeah, well, it's a midlock.
And to be clear, the slow walking happens too.
This was a chronic problem across agencies, that you'd have rules that would be issued under the Obama administration that would take 12 months to go from start to finish.
And the career staff were very motivated, working very hard, all going in the same direction to get these rules out.
And then when the Trump administration wanted to roll them back, or in many cases just roll back a part of the rule...
It would take two, three times as long to rescind the rule as it took to issue it in the first place.
They're throwing down delays and obstruction, and it just knew constantly, right?
I mean, you'd get these complaints in the press.
Why isn't the Trump administration working faster?
And the answer was, for a lot of these rules, it had to be political appointees doing most of the work of drafting them.
You'd assign the rule to be drafted to the career employees, and what they would come back with would be either something that It was not the policies they were told to do, or on paper did what they were told.
But everyone reading it knew that the courts were going to toss this out on procedural grounds, that it was not going to withstand legal review.
So again, it's tough, right?
Like, you know, on paper they've complied with their directive, but, you know, everyone's in on the joke that this rule is legally insufficient.
But yeah, trying to show that in a court of law in the subsequent appeals is very tough.
The career staff have a lot of ways to make your life miserable.
And look, to be clear, There are many good career staff in the federal government.
There are many who work nights, work weekends during the COVID pandemic.
I mean, there's a lot of good people out there.
This is not every single one.
But if you have a body that's 20% healthy normal cells, or sorry, 80% healthy normal cells and 20% cancer cells.
You've got an extremely large problem.
And that's what you've got in the bureaucracy.
Anywhere between 10% to 99% of the career staff in these agencies are cancerous and simply not concerned with carrying out the people's business but advancing their own agenda.
So what was the overall effect?
You were there throughout the administration.
What was the overall effect of this kind of behavior in, for lack of a better term, the administrative state?
It's a huge problem, right?
I mean, I think Democrats, part of why this doesn't, you know, get them up in arms is because for the most part, they and the queer staff are on the same side.
You know, if you take a look at campaign finance donations or voter registration or surveys of the federal workforce, it leans pretty heavily to the left, and especially among the more senior sort of managerial supervisors, the policymaking ranks.
It's not that every federal employee is a Democrat or a liberal, but it leans pretty heavily in that direction.
And so, in general, a left-wing administration is in sync with the bureaucracy.
They want to go in the same direction.
And there's some hiccups.
They're not always 100% on the same page, but generally they are, and it's sort of a nuisance factor to them.
But if you disagree with the political leanings of the bureaucracy, and if you're elected on that platform, there's major resistance.
And look, you're still going to be able to get your top priorities done, right?
If you've got sort of high priority rules in the different departments, those still get done.
They're going to take longer.
But basically all your secondary and tertiary priorities that you would also like to do, but just aren't your top of the line priorities, you know, you don't have enough political appointees in the agencies to write all the rules and the policy documents.
And so you pick your top priorities and that's all that gets done.
And it shouldn't work that way.
There's great wisdom in having a career civil service where you've got institutional knowledge and experience that continues across administrations.
That's why the Schedule F executive order did not make the entire federal workforce into political appointees or anything close to it.
But if you're going to be in one of these policymaking roles, then you have to be accountable to political leadership so that if you are engaging in this sort of intransigence, that they can just say goodbye.
If you're not willing to act as a nonpartisan, neutral civil servant, then you don't get to stay in the agency.
And look, also look, delay, the fact that the career staff can delay rules they don't like by an extra year or a year and a half.
In many cases, that can kill the policy because then opponents of the rule will ensue over it.
Oftentimes, it's a forum shopped judge, a liberal appointee.
They're filing suit somewhere in a California district court where it's all liberal judges.
And by the time it gets appealed up to a more neutral forum, those injunctions typically got lifted.
But if the rule gets issued so late that the administration has changed, then there's no one there to ask for the appeal.
And then you're stuck with the district court order saying this policy is gone.
Goodbye.
That would happen over and over again.
The public charge rule that the Department of Homeland Security issued.
That was a rule that basically said, look, you don't get to come here and be an immigrant if you're going to go on welfare.
And we're going to take these statutory elements much more seriously and sort of crack down on people being let in and then going on the dole.
It was not a rapidly issued rule, was ultimately issued, and then opponents filed suit in district court in some liberal jurisdictions.
They got some liberal judges saying no.
The Trump administration was appealing, but then the administrations changed, and the Biden administration just said, eh, we'll drop all the appeals.
Supreme Court, you don't need to pay any attention to this.
And what was left was just the lower court orders striking down the rule.
What I would consider fairly weak legal grounds, given the sort of express statutory authorization and discretion given to the government here.
But the point is, the delays just ran out the clock and were able to kill the policy.
So this makes me think of hashtag resistance.
And in some cases, the employees themselves would be saying this.
Freedom of Information Act requests were sent into the National Labor Relations Board after Biden fired the Trump political appointee general counsel on his first day in office.
This is a term position.
Traditionally, both Republican and Democratic administrations have said we will respect the independence of the National Labor Relations Board.
General counsels get to serve out their term.
Biden said, no, you're gone on day one.
And he picked a regional director to serve as the acting general counsel.
And some groups sent in Freedom of Information Act requests to see what was being sent to and from this guy after he got tapped.
And lo and behold, he's getting emails from crew staff basically praising him for his, quote, brave resistance and saying how much all of his efforts had been effective at stymieing the Trump administration policies and that the Trump appointees would have done so much more damage if it wasn't for people like him.
You know, engaging in brave resistance.
I mean, it's, like, you want to tear your hair, right?
Like, and these are the same types of people who, you know, in the Trump administration were systematically engaged in resistance, right?
Like, you'd have one of the jobs of a career attorney is to brief political appointees on the, you know, legal precedents.
You have parties, you know, make their arguments, and then, you know, you also, you know, sort of do an independent review of the law.
And the career attorneys would only provide precedent that supported their preferred outcome to a case.
They would not brief up precedents that supported coming to a contrary conclusion.
So the political appointees would have to do their own legal research to understand both sides before making a decision.
They could not rely, and very capable, very smart attorneys, incredibly competent people.
When you have them basically engaged in widespread centrifuge to prevent the political appointees from implementing their policies, that is a huge problem.
Well, so then let's jump to Schedule F. The Hill described it as the biggest change to federal workforce protections in a century, converting many federal workers to, quote, at-will employment.
So tell me about this.
So when Congress passed the Civil Service Reform Act of 1978, There's language in there, actually Section 7511 of Title V U.S. Code, that says that you are exempted from all these civil service protections and appeals if you're in a position that the President or the Office of Personnel Management have determined to be of a, quote, confidential, policy-determining, policy-making, or policy-advocating character.
Now that language has always been interpreted as basically applying to political appointees and Schedule C. That's the term for most of these political positions, a Schedule C position.
And it's never been applied to career staff.
And we were taking a look at this.
Look, I was getting these reports.
Trump was seeing even more of these reports across the entire government, not just the agencies in my portfolio.
And there was a very high degree of frustration with this undemocratic resistance.
And so we knew that the president wanted to have more authority to hold people accountable.
And if you're not performing, he could say, you're fired.
And we're taking a look at this and saying, hey, you know, there's a lot of career positions.
That are of a confidential policy-making, policy-determining, and policy-advocating character.
Like, everyone who drafts agency regulations and guidance falls into that bucket.
There's a lot of positions, or like the supervising attorneys in some of these divisions, like the Department of Justice, where they're basically engaged in legal resistance and won't enforce laws and policies they don't like.
And so we're saying, hey, look, what stops us from...
Putting career employees into this bucket.
And that's basically what the Schedule F executive order did.
It said, look, we're not going to turn you into political appointees.
We don't want there to be any expectation that you're going to be hired based on political connections or that you're going to lose your job at the end of administration.
There is great value in having a career civil service and this sort of institutional expertise.
But there's got to be accountability.
If you're, I mean, look, if you're like a line IRS inspector or a wage and hour division inspector, you know, and you mess up in an audit, that affects the person you're auditing or the business you're investigating.
But it doesn't affect the entire country.
It's sort of localized and limited.
But if you're the guy who writes the guidance and directives to those line agents and you do a bad job or you try and stymie the policies of the president, that affects the entire country.
And so for you guys who've got this, you know, Tremendous policy influencing power.
And in many cases are using that policy influencing power to influence policies and to move the bureaucracy or move federal policy in their preferred direction.
Well, then you're going to get the same civil service protections as a political appointee, which is to say you're not going to have any.
And so Schedule F basically said this is like Schedule C. You have no removal appeals rights like a Schedule C employed.
Only you recruit staff.
So we're not going to be, like all the rules that say you're not going to be hired or fired based on politics or political donations, all that sort of stuff, that's still going to apply.
Agencies are still going to enforce that, but they're not going to let you litigate your removal for years on end and enormous consequence cost to the government if you get fired.
You're acting like political appointees.
You'll be treated like political employees in terms of the accountability you have to policymakers.
And official Washington let their hair on fire, which I think was a pretty good sign we're right over the target zone.
So this is actually quite fascinating because you're saying this...
It doesn't target everybody by a long shot.
This basically targets the people who are actively in the position to block implementation of policy the most.
That's right.
I mean, look, I think all federal employees should serve at will.
It's appropriate that there's protections in there to say, look, you're not going to be fired based on political campaign contributions or your race or what have you.
Accepting sort of discriminatory, you know, bad reasons for firing.
Otherwise, you serve at the pleasure of the agency, right?
All executive power is vested in the president, and if you're going to wield power in the president's name, then I think you ought to be accountable to the president.
I think that's what the Constitution requires.
But this executive order did not come close to going that far.
Our estimates were that Schedule F would have covered about 50,000 federal employees, so a large number of people sort of in isolation, but out of a 2.2 million man bureaucracy, not that big of a percentage.
And it would target basically those sort of folks involved in setting agency policy.
So it would have a heavier effect here in the Washington, D.C. region.
It would sweep up a lot of the headquarters employees.
But most of the sort of...
Line employees in the field would have been unaffected.
But at the same time, this is kind of a...
Let's call it a precedent-setting activity, wouldn't you say?
Oh, yeah, absolutely.
No, I think it was, you know, had President Trump been inaugurated for a second term, I think that it would have done an enormous amount of good.
I mean, he signed it about a week and a half before the 2020 election.
And the timing on that was such that the way it worked is the agencies would come up with their list of employees to go into Schedule F. But basically, those lists were going to be due the day before the 2021 inauguration.
And had the president been sworn in for that second inauguration, then basically...
Yeah, fairly early on in the second term, they were all going to be moved into Schedule F. And, I mean, look, the unions, of course, were going to sue overage, but the legal authorities are, like, right there in black letter, right?
And Congress expressly says, you can do this.
And the case law all says, look, courts aren't going to second-guess these decisions.
So the unions would have sued, but I think it would have been so much sound and fury signifying nothing.
Just sort of them, you know, showing the flag, but I think they knew, and we knew they were all going to lose.
So, you know, you obviously did a quite extensive legal analysis around this, but some people might ask, you know, why wait so long to try to implement something like this if indeed you're having these problems?
Well, it took a while to develop the policy, right?
So we first, you know, basically had the idea for doing this in January of 2019. And started taking a look at it, looking at the history, looking at the court precedents, sort of workshopping different ways of implementing it, having very confidential, close-hold discussions with senior agency leaders about this.
The feedback from all of them, by the way, was...
Oh, good grief.
This is amazing.
We need this.
We need this.
I wish we'd have this from day one.
What a great policy.
The non-career staff who were right in on this were all very enthusiastic about it.
There were a few reasons it got delayed.
One was just that sort of process of review and vetting.
It would have been a big impact, right?
So you're going to make sure that you've got your legal docs squared away.
What happened was, and this has been reported elsewhere, is that basically it was May of 2019, we had another meeting of agency political leaders, very close old.
And their response was like, look, we wish we'd had this from day one.
If we'd had this in 2017...
Our lives would have been so much easier for the past two and a half years.
However, we now have all our reg writers basically on pace to finish up these major regulations by the end of 2019 or early 2020, and we don't basically want to do something that will cause them to set their hair on fire.
So why don't we issue this basically once these major regulations are done, early in 2020, as we're sort of gearing up and clearing the decks for reg agenda for a second term.
And so that was the plan.
And then you might remember in March of 2020 something else was going on.
And so the COVID pandemic struck, and that was the number one, two, and three priority for basically everyone in the executive branch, and rightfully so.
And so this reform was still considered important, but was not nearly as important as vetting executive orders or agency regulations and policies responding to the COVID pandemic.
So had COVID not hit, I think Schedule F would have probably been signed in April or May of 2020. But because COVID hit, it pushed it back to October.
It's interesting that you mention coronavirus policy, because in your op-ed, you mention Dr. Birx, who, you know, in her book, she reveals herself as being kind of the major architect of the policy, and frankly, you know, not actually following and actively resisting some of the president's requirements.
No, that's right, right?
It's somewhat stunning, right?
Like, you get all these reports sort of privately of here's all the things that career staff are doing to subvert political appointees and ignore directives.
And then Dr. Birx, who was a career employee, publishes a book boasting about it, right?
I mean, she writes in her book that she was getting directives from the White House and from senior staff to moderate the lockdown recommendations, don't make them so strict, that this is going too far.
And what she did is, like, she describes herself as engaging in subterfuge and workarounds to push her policies past the political appointees she nominally reported to.
So they would say, here, this guidance going out to governors and state officials and sort of lockdown recommendations.
I said, look, this is too strict.
You've got to, you know, take this stuff out.
And she took it out.
And then in a non-track changes form, just reinserted it elsewhere in the document and, you know, in less prominent locations.
And then the politicals who were, you know, taking a look at it, you know, saw where she'd have the language, saw she'd take it out, and bottle's good, and didn't realize that, you know, lower down on the document where...
They hadn't had any issues with the stuff she put in there.
She just reinserted that language.
And she just describes herself as systematically engaging in centrifuge to push for stronger lockdown recommendations.
Now look, it's clear in hindsight that the lockdowns went too far.
The more aggressive lockdowns didn't have a lot of public health benefit, but had enormous negative consequences in terms of economically, socially, people's mental health, children's educational attainment.
In hindsight, we see that lockdowns went too far.
And part of that was being driven by a career employee who simply felt herself unconstrained by following the president's directives.
Now look, it is...
Perfectly legitimate.
More than that, it's a duty of a career employee to give their best advice to a political appointee, even if they think that's going to be something the political appointee doesn't want to do.
You should hear from all sides, you don't want to get locked in a sort of groupthink situation.
Having career staff who think you're crazy telling you that and explaining their reasons is something that a lot of political appointees I talked to thought was very valuable and very helpful.
That's being a good patriot.
What's not patriotic is when the democratically accountable officials say, all right, well, here's what the policy is, basically saying, well, up yours.
You know, that's not what we're going to do.
We're going to do this other thing, and I'm going to try and go behind your back to do what I think is the best policy, notwithstanding you, who have the actual authority to make that call.
And, you know, this was not the vision for the civil service, right?
Like, if you go back to the reformers who created the civil service...
They were very clear that, look, we don't want hiring to be based on your political campaign work and political connections and campaign donations and such and such, right?
You want a merit service, not a sort of show-me-the-money service.
And all of which is wise and true and good, by the way.
But at the same time, yeah, regulate hiring, but you don't...
Put removal protections in place, because that's just going to lock up insubordination and intransigence in the civil service.
I mean, like George William Curtis, who was one of the principal, if not the leading advocate for civil service reform in the 1880s, was very public in saying, you absolutely do not give the employees a right to any sort of trial or appeal for removal.
That's just going to lock up all sorts of mess in there.
And that's what the Penalty Act of 1883 did.
It basically said, no, you...
We've got these hiring restrictions, but you don't get to appeal your removal.
That was the vision for the civil service.
The general federal workforce didn't get the authority to appeal removals until the 1960s.
The unions and the defenders of the status quo in the Washington bureaucracy like to trot out this boogeyman of, oh, if you get rid of these removal protections, we're going to go back to the spoil system.
We don't want people buying their federal jobs.
Which is true.
You don't want people buying their federal jobs.
But that has nothing to do with giving people removal protections.
That just has to do with these sort of merit hiring requirements on the front end.
There's nothing about the back end.
And that was the vision for the civil service for the first eight decades that you had a merit service.
It's a completely modern 1960s innovation that you have the right to basically a trial at law before an agency can fire you.
So, you know, a lot of the criticism to the Schedule F that I came across It has to do with basically arguing that it would put something like patronage or loyalty above competence and the public interest.
I mean, look, first of all, those people haven't read the executive order.
The executive order says right in it all those sort of merit, you know, system requirements, merit, assessment, principles, and personal practices, they're going to continue to apply to the Schedule F employees, right?
So by law, you know, the president could exempt, you know, Schedule F employees from them.
Just like political appointees are obviously hired based on political considerations.
That's allowed.
The president can take you out from under those limitations.
And the executive order said, we're not going to do that.
Agencies, you're going to not engage in political-based hiring.
You're not going to engage in political-based firing.
These are considerations you're not going to take into account.
If the president wanted to politicize the civil service, he would not have given a binding legal directive to his subordinates not to do it.
So in part, it's just sort of ignorance, people who haven't read the executive order.
But I think it also is partly a deliberate strategy on the part of some.
That this is the sort of justification for these removal protections, right?
That, like, who in their right mind thinks that it should be a multi-year process to fire a federal employee for engaging in policy resistance or just sucking at their job?
It's about half of federal employees all say that they've got poor performers in their work unit who just stay on their job and continue to be a bad worker year after year after year.
It's a major problem on top of all this intransigence.
No one tries to defend that on the merits of, well, private sector employees can be fired on the basis of their performance or insubordination, but government employees are special and they get to keep their job forever no matter what.
No one tries to defend that.
It's always, well, we can't have the spoils system, right?
And they just trot out this boogeyman.
In some cases, I think it's in good faith.
I think they just haven't read the historical record and don't realize that the Pendleton Act of 1883 left federal employees at will.
Everyone was saying, oh, they're trying to undo the Pendleton Act.
You had much stronger removal protections under Schedule F than you did under the Pendleton Act.
The vision for the Merit Service was merit-based hiring, but basically at-will removals, at-will firing, and that we're not going to let you appeal these removals because that would just lock up.
The direct quote from George William Curtis is insubordination and intransigence and incompetence within the Federal Service.
Schedule F doesn't bring back the spoil system.
Schedule F says you're not going to hire or fire people based on politics, but if you're engaged in policy-resistant, you're out of here.
And just for the benefit of our viewers, in two sentences, what's the spoil system?
The spoil system is basically where a new president takes office, fires all the old federal employees, and basically replaces them with his own campaign supporters and campaign contributors.
So you basically use federal jobs as a reward for supporting the party in power.
Right?
And the reason they got rid of it was, again, this, you know, has negative consequences on the sort of quality of services the federal government delivers.
If you're, like, changing over the entire federal workforce or a large portion of it every four to eight years, and the people who are being hired are based on sort of, like, door-knocking and campaign contributions not being good at the job, right?
Look, I think pretty much everyone agrees we shouldn't go back to that.
But that doesn't mean you get these ironclad removal protections.
Another criticism I've come across was just that it would create a whole new bureaucracy.
You would need to create a whole new bureaucracy to be able to deal with these Schedule F people.
Not really.
It's a little bit of paper changes.
Basically, you're changing someone's designation.
Instead of being in Schedule A or Schedule B or in the competitive service, now you're in Schedule F of the accepted service.
There'd be a little bit of bureaucracy in the agencies internally policing themselves, some of the riveted personnel practices instead of having the Office of Special Counsel doing it.
But no, that was never an objection that was raised internally.
Are you familiar with Congressman Chip Roy's Public Service Reform Act?
Yeah, I think it's a fantastic bill.
I think, you know, basically that's pretty close to the first best standard, right?
It basically says all federal employees are now at will.
Nobody has removal protections.
No one has appeals, with a few exceptions, right?
If you're a whistleblower, then you can appeal to federal court.
And if you can prove that you're a bona fide whistleblower, you can get your job back.
And similarly, EEOC complaints will operate the same way it does in the private sector.
So if they don't like your race or your sex, your religion, and you're being fired on that basis, then you have the same rights as a private sector employee to file to the EEOC. But other than that, you're at will.
Again, agencies, you're not to be hiring or firing based on political factors, but that's sort of going to be internally enforced.
It doesn't create an appeal right to the employee.
And then it says, look, we're going to have a process here where if an agency wants to fire an employee, basically you have to show your homework.
This is the way the Lloyd Laflett Act worked, and I think worked very well.
It basically says, You know, you're proposing to fire someone, and whoever it is wants to fire them has to put down his reasons in writing saying, here's why we're getting rid of you.
And the employee gets to see that, gets to make a response.
And then some other individual, other than the person proposing the removal, gets to take a look at the reasons and their response and make the final decision.
And then after that, the person makes their decision.
That's it.
That's the end of it.
There's no appeal to federal court.
There's no appeal to another agency.
So you have a process, you know, where...
Not all managers are angels.
You're going to have some, you know, what in some sense could be considered unwarranted proposals to hire someone.
And so this gives that sort of second layer of check, forces people to sort of show their homework and prove that you're not firing someone for a prohibited reason like, you know, political reasons or what have you.
But at the same time, if you're doing any of the stuff that was happening, you know, to us in the bureaucracy, if you're being assigned to write a rule and you're taking three times as long as you did under the prior administration because you don't like what's going on there, or you were told, you know, You know, work on this case and you said, meh.
I'd rather not.
Any of that stuff is going to be completely, all right, you're gone.
And that's the end of the story.
And so you've got accountability in the federal workforce.
You also have accountability for the firing decisions.
But again, if you've got, to some extent, an objectively unwarranted removal decision, then the agency political leadership is taking full ownership of that.
And it was going to have to defend it in the press and in the sort of court of public opinion.
And I think that serves as plenty of enough deterrence for what you might consider a...
Sort of questionable removal that we don't need to then layer on, well, we're going to have two years of litigation after this, and you're going to have to pay the employees attorney's fees and provide them with two years of back pay, and we're going to have an arbitrator picked by the union to handle this, and these arbitrators usually reinstate the employees.
Not going to deal with the bureaucracy, just provide a simple expeditious process within the agency while also providing sort of a check against just...
So Schedule F is the sort of executive branch, kind of a component of something that would lead to this kind of legislation, essentially.
That's how you would describe it?
Yeah, basically.
Again, that's sort of how we saw things operating.
In general, being put in Schedule F doesn't mean that one supervisor is just going to say you're gone and that's the end of the story.
The agencies do have procedures.
Generally, the person who proposes the removal is not going to be the person who makes it.
It's the final decision.
And so you'd have some sort of internal checks.
The key is that they're purely internal.
And if the folks in the agency recognize that someone's a problem, they can say, you're out of here.
And you're out of here.
And you don't have the right to tie up the agency in litigation for two years afterwards and make it a year-long process within the agency before that.
And it is just a nightmare trying to fire a federal employee.
And as a result, it does happen, but it only happens to the worst of the worst.
And in many cases, more often than not, they get reinstated.
We have a report that's going to be coming out soon, taking a look at how these grievance arbitrators rule on removal cases.
And we find that in three-fifths of the cases, the arbitrators who are jointly selected by the The unions order the employees reinstated.
And those decisions are just like, what are you smoking?
There was one case where there was an employee, I forget if this guy was in Veterans Affairs or the Social Security Administration, I think it was Veterans Affairs, where he got arrested for possessing meth and subsequently was jailed and then pled guilty to possessing meth with intent to deliver meth.
And so, as you might expect, the agency went to fire him.
And the union grieved his removal, and the arbitrator said, well, you know, it's bad that he got caught in a car with meth, you know, sort of in the cup holder, and, you know, that he bled guilty to intending to deliver this.
And that is, you know, he deserves to be punished for that.
But firing him was too severe an offense.
Let's just mitigate his removal to a suspension and order him reinstated.
Right?
Like, what are you smoking?
Like, what are you smoking?
I mean, there was another case where the Merit Systems Protection Board...
There was an, I would call it, air marshal.
And they're basically undercover, plainclothes law enforcement officers who go on flights.
And if there's someone who tries to hijack the flight, they're armed.
And they basically go out and shoot the guys who are trying to hijack the plane.
And they're randomly assigned to flights.
And so there's some percentage chance any flight you're on has an air marshal.
And it's the way we stop hijackings.
And the reason hijackings don't happen the way they did back in the 70s.
And this guy was assigned to basically a flight to Hawaii.
And then cover a return flight back to the mainline the next day.
Well, while he was in Hawaii, He decided he was going to solicit a prostitute.
And to his misfortune, the prostitute he was soliciting was actually an undercover police officer trying to sting people who were soliciting prostitutes.
And so he got arrested and spent the night in jail.
And as a result of that, he was not able to make his flight back the next day.
Well, the Transportation Security Administration was not thrilled with this, as you might imagine, and basically said, OK, you're fired.
And he appealed to the Merit Systems Protection Board.
And the Merit Systems Protection Board again said, well, you know, this was bad.
But it wasn't so bad as to warrant removal.
We think he should have only been suspended.
And so give him his job back.
I mean, it's just like some of these cases you want to tear your hair out.
And it's not just like one or two bad employees get reinstated in those cases, but it sends a message to the entire federal bureaucracy and all the HR staff.
That don't even bother trying to fire these guys because you're going to spend a lot of money on your own attorney's fees, a lot of work on the part of the supervisors.
And at the end of the day, often as not, they're going to get their job back and you're going to have to cover their attorney's fees and give them back pay.
Another case in the Labor Department, they had an inspector in one of the regions who was sexually harassing one of the people he was inspecting on his work phone, sending this person sexually harassing text messages and pictures of his genitalia.
Now, on his work phone.
And so the lawyer for the person he was harassing contacted the Labor Department's headquarters and said, hey, just so you know, this is what's happening to my client.
So the agency leadership was informed about this and, as you might imagine, were quite upset and said, he is gone.
I don't care what.
Yeah, he is fired.
This is not acceptable behavior.
This is no, no, no, no, he's gone.
And the career HR leadership in this Labor Department's agency said, look, you can't do that.
Sorry, we sympathize.
We agree.
We would love to get rid of him.
But we're telling you that we are not capable of firing him.
That you go to the MSPB and it's a crapshoot there and he's covered by a union.
They could grieve it.
The union's going to make it nearly impossible for us to fire him.
And so we agree he's a problem.
But look, we have experience doing these things.
We can't get rid of him.
And so the end result was that this employee got put on indefinite leave.
And so he basically got an indefinite paid vacation as a, nominally a punishment for his behavior, but in effect, a reward, right?
It's not just the TSA agent who gets reinstated after being arrested for soliciting a prostitute and leaving a flight uncovered.
It's all the other times across the bureaucracy that they say, look, we got to let this slide.
We can't fire him.
I guess Schedule F, that executive order, would also send a message, but perhaps in the other direction.
I think it would basically tell the bureaucracy, you're not protected.
If you're going to engage in this sort of misconduct and misbehavior, then if you want to act like a political appointee, then you're going to be treated like a political appointee.
And you're expected to follow the policy directives of the president.
Plenty of routes for people to contest the validity of executive actions.
People file lawsuits all the time.
But it's not your job to internally stop these things.
And you will obey the lawful directives given to you, or you will find a new job.
And, I mean, look, the vision for Schedule F was not that you're going to have some sort of St. Valentine's Day massacre, and you have 50,000 federal employees who are going to be looking for work in a day.
You might have to do that a few times, maybe a few hundred times, but the goal, the hope, was that the bureaucracy pretty soon would get the message and they'd stop playing those games.
They act like that because they can get away with it and they know they can get away with it.
And if they know they can't get away with it and that they're going to be held accountable, I think they would act differently.
So you're the director of the Center for American Freedom at the America First Policy Institute.
What is the Center for American Freedom?
So our role is to basically protect Americans from new and traditional threats to freedom.
So we take on things like the administrative state and the civil service, which sort of traditionally conservatives have viewed as a threat to individual liberty and freedom.
We're also focused on some of these newer threats, like cancel culture has become a major threat to free speech.
So has sort of big tech.
And so we've put out proposals for how states can combat big tech censorship.
And you're working on a report now on legislative proposals to make it much more difficult for companies to engage in this sort of ideological censorship and view policing and cancel culture.
And so broadly speaking, to protect the American people's liberties from traditional and emerging threats to freedom.
And final question as we finish up.
Your advice to...
Any president, frankly.
Would it be simply to reinstate that executive order?
Is there things that should be, you know, since the time that this actually came out that you would change?
The short answer is yes.
I think that the Schedule F concept is the way to go.
I think that there's ways that it could be broadened and extended to cover more employees.
I'm still working on some of that research now, so I'm not going to sort of preview that.
But I think it can be expanded to cover more employees.
I think every federal employee should serve at the pleasure of the president.
The federal bureaucracy needs to be accountable to the president and then the president to the American people.
That's the way the Constitution was designed.
That's the way the federal government should operate.
Well, James Shirk, it's such a pleasure to have you on.
Thank you so much for having me here.
Thank you all for joining James Shirk and me on this episode of American Thought Leaders.
He's the director of the Center for American Freedom at the America First Policy Institute.
I'm your host, Jan Jekielek.
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