A key priority of the second Trump administration has been an unprecedented attack on federal employees’ workplace rights. This includes removing collective bargaining rights, dismantling federal agencies, and working to remove the civil service protections of many federal employees. Catherine Fisk’s Democracy and a Nonpartisan Civil Service focuses on the assault on civil service. The article gives a history of civil service laws and reviews the evidence on the benefits and costs of their protections. It details the assaults on these protections and provides a nuanced defense of them. Fisk convincingly addresses legal, practical, and policy concerns, describing current rules, proposed changes, , theoretical arguments, and relevant empirical data. Her article is a strong contribution to the literature.
Since the Pendleton Act of 1883, civil service rules have been a key component of employment law in federal, state, and local government. Such laws originally aimed to combat political patronage practices by providing “merit” rules for both hiring and firing. By the second half of the mid-20th century, these rules gave most lower- to mid-level public employees just cause discharge protection, at least after a probationary period. While most other industrialized democracies in that period adopted just cause rules as the default for most employees, the United States remained, except for civil service laws, committed to at-will employment.
In the early 21st Century, conservatives began attacking civil service rules. During the first G.W. Bush administration, the Heritage Foundation claimed that civil service rules protected federal employees who opposed conservative presidents’ policies1 – a precursor to the “deep state” language of the first Trump administration, embodied in “Schedule F,” which would have created a large new class of federal employees who were dischargeable at will. Meanwhile, several Republican-led states, e.g., Florida and Texas, amended their state civil service rules to remove or greatly weaken civil service protections
These attacks have affected, or soon will affect, basic employment rights of hundreds of thousands of workers and could significantly change how governments operate. Fisk does an admirable job of placing them in context.
She starts by noting that the justifications for Trump’s 2025 Executive Order on civil service include making federal employees “accountable to the President,” addressing the predominance of “liberals among the civil service,” and aiming to make all federal employees fireable at will. (Pp. 2-3.) Like the proposed “Schedule F,” it greatly expands the definition of “policy-making” employees exempt from just cause protections.
Fisk’s discussion of empirical evidence is interesting and balanced. For example, she cites a study finding that some job security “improves governance by recruiting and retaining motivated and skilled employees to government,” while too much of it discourages good work and makes it too hard to fire bad employees. (P. 19.) The “consensus of the literature” is that while “some reforms are desirable . . . completely abolishing legal rights to job tenure during good behavior is an extremely risky proposition. . . .” (P. 20.) Her discussions of competing theories of government are also valuable, including the “unitary executive” theory that cuts against the heretofore established premise that the U.S. Constitution authorizes Congress to grant just-cause and related civil service protections to federal employees.
Fisk puts theories in context. The justification for Trump’s E.O. is that federal employees are “disproportionately liberal.” (P. 23.) Also, it would remove protections from “anyone who even views or circulates proposed regulations or guidance.” (P. 24.) This, Fisk argues, is also part of the administration’s attack on whistleblowers and union protections. (Pp. 24-26.)
The most direct challenge to the E.O. is that it violates the Civil Service Reform Act of 1978 (CSRA), which currently sets out federal civil service rules. Here, Fisk carefully describes the CSRA’s broad statutory language and concludes (Pp. 31-32) that even if the President can reclassify these positions prospectively, civil service and constitutional due process protections should prevent current employees from being reclassified into at-will status.
Fisk also notes the established rule that, that for non-policymaking public-sector jobs, discrimination on the basis of political affiliation violates the First Amendment (Pp. 38-40, Branti v. Finkel, 445 U.S. 507 (1980)). Anticipating that challenge, the 2025 E.O. states that employees need not support the current President or administration polices but must “faithfully implement administration policies to the best of their ability.” However, reports indicate that last January, the National Security Council interrogated many civil servants and examined their social media, asking if they supported Trump. The NSC then fired a large number weeks later. (P. 26.)
Fisk reviews other legal objections to this E.O, respectfully attending to both sides of the arguments. Significantly, she notes that in 2024, the Biden administration issued a regulation concluding that Scheule F was not consistent with good administration or with the CSRA. That creates issues under the Administrative Procedure Act as to whether Trump can unilaterally change these rules via an E.O.
Speaking as one of the few academics who study federal sector employment, I doubt I will like what will happen in this area in the next few years. But I predict this article will be very valuable. It is timely (and the recent adoption of a revised Schedule F only makes it timelier), important, well-researched, balanced, and thorough. I liked it a lot.
- George Nestercczuk, Taking Charge of Federal Personnel, Heritage Found. Backgrounder No. 1404 (2001).
