Trump’s Plan to Control More Civil Servants Disrupts Opposition

President Donald Trump plans to play a starring role in removing job protections for career federal workers, a move that will make it harder for employee unions to stop him.

The Trump administration took the first step toward putting more career federal employees under the president’s control recently when it proposed eliminating job protections for roughly 50,000 positions. Unlike his attempt to overhaul the civil service during his previous term, Trump would decide which roles would be included in the new category of workers, known as Schedule Policy/Career, and not a government office.

That hinders the unions’ strategy to eliminate the plan in court because putting Trump in the driver’s seat will likely weaken Administrative Procedure Act challenges, attorneys say.

“It makes it harder to try to sue,” said William Funk, a co-author of administrative law casebooks and a retired professor at Lewis & Clark Law School.

The proposal is core to Trump’s plans to shrink the size of federal agencies and would mean the president, likely with help from his team, would personally decide which career federal employees lose their job protections.

In lawsuits filed in January, federal employee unions accused the president of violating the Administrative Procedure Act when he signed an executive order kicking off the process to remove job protections. The APA details the steps agencies must follow to implement a regulation.

Trump’s January order directed the Office of Personnel Management not to carry out the Biden administration’s April 2024 regulation designed to safeguard the civil service from his expected changes. He declared that rule “inoperative.” The unions argued that the administration couldn’t disregard the Biden policy without the OPM first laying out proposed changes and accepting feedback from the public.

“That’s a pretty bold consolidation of presidential authority,” said Mark Samburg, who is representing the American Federation of Government Employees in its lawsuit challenging the administration’s civil service overhaul.

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The Trump administration in response cited a key 1992 US Supreme Court ruling that ended a dispute over the size of Massachusetts’s delegation in the House of Representatives. Massachusetts sued to reverse President George H.W. Bush’s decision to remove a representative from the state based on the results of the 1990 census.

The high court, in a majority opinion written by Justice Sandra Day O’Connor, found that the president himself isn’t covered by the APA.

The ruling “works in favor of the president’s position here,” said Josh Galperin, an administrative law professor at Pace University.

Trump’s civil service overhaul could still be challenged in court once the OPM finalizes its proposal, said Devin Watkins, an attorney at the Competitive Enterprise Institute. Then, unions will be able to sue the OPM and argue the agency’s actions are “arbitrary and capricious,” in violation of the APA, as outside groups often do when challenging regulations they oppose.

“This will be a lot clearer than just fighting about the executive order,” he said.

Disputes could also arise over whether moving certain positions into the new category violates civil service law.

In his executive order kicking off the process to remove job protections, Trump referenced the civil service statute that empowers the president to remove protections for positions “determined to be of a confidential, policy-determining, policy-making, or policy-advocating” nature. The Biden administration, in its 2024 rule, clarified that the phrase refers to political appointees, not career staff that work at agencies across administrations.

Under Trump’s newest proposal, the OPM would review agencies’ suggestions for positions to move into the new category before forwarding recommendations to the president, according to the proposal. The OPM already directed agencies to send their initial list by April 20.

The OPM is accepting feedback about the proposal through May 23. The office had already received 750 comments on it as of Thursday morning, as it prepares to craft a final plan to remove job safeguards for a portion of the civil service.

“It is a smart move on the administration to not rely on just an executive order to do all the work,” Galperin said.