Apparently a lot of people on Capitol Hill think preventing Schedule F from being implemented is not that important. After all, if President Donald Trump could create Schedule F with the stroke of a Sharpie, President-elect Joe Biden can end it the same way after his inauguration. Right?
It is not that simple. Here are a few examples of the problems that Schedule F could create that are not easily fixed.
Political appointees who are burrowed in via Schedule F
Burrowing in happens in most Administrations, but Schedule F creates the opportunity for the most egregious burrowing in that we have ever seen. Hundreds of political appointees could be moved into jobs that are covered by Schedule F. Rather than packing up and leaving on January 20, 2021, they will be sitting in agencies in permanent jobs. Easy to fix, right? Just do away with Schedule F.
The problem with that is that they will still have jobs and it is likely that firing all of them will result in complaints to the Office of Special Counsel that they are being terminated due to their political affiliation, making it a Prohibited Personnel Practice. The fired employees can also go to court, hoping to get an injunction to stop their removal. What happens if they get a judge to rule that the President has the power to remove anyone in the executive branch and that applies to these folks. Is that a win? No — it opens the door to a dramatic expansion of Executive power and potentially to elimination of protections for career civil servants. The risk is too great to allow it to happen.
Career employees who are moved to Schedule F and then fired
Press reports that the Office of Management and Budget has identified 88 percent of its workforce for movement to Schedule F should be alarming. What happens if the Trump Administration follows through with that move and then fires a large number of the employees? OMB would not be able to function without those career employees.
Can then President Biden reverse it? Sure. But the employees will have been processed out of the system. That triggers things like lump-sum payments of annual leave. For some employees, it will cause them to elect to retire. Can you repay a lump-sum leave payment? Yes. Is it easy? No. Lump-sum payment have taxes withheld. Employees have to repay everything, and some may not have the cash on hand to do that, because the IRS will have a big chunk of their money. Can they un-retire? No. Once they retire they are out of government and would have to be rehired as reemployed annuitants. They will also no longer have access to agency systems, and they will have surrendered their agency badges. All of them would have to go through he process of having those reissued. After having been jerked around for purely political reasons, some are likely to say to hell with it and not come back. It will be disruptive, costly, and serve no purpose that serves the American people.
New employees who are hired under Schedule F
If anyone is hired under Schedule F it is likely their jobs will go away. Much like the first group, they are likely to file complaints or lawsuits. They may win. Even if they do not, the government will spend time and money to defend itself.
What happens if converted political appointees or new Schedule F hires win their complaints or lawsuits? They could get backpay and be reinstated to the government. They may end up in jobs that the Biden Administration would prefer to have filled with their own appointees. And they may have a group of people who believe their role is to undermine the policy objectives of the Administration. That is exactly the opposite of what a career civil service is supposed to do. Civil servants serve the American people. They take an oath of office to “support and defend the Constitution of the United States. They carry out policies they do not agree with, as long as those policies are legal.
Congress can stop this incredibly disruptive process in its tracks. Doing so will ensure the government is not dealing with cleaning up the mess, spending taxpayer dollars to go to court, disrupting the lives hundreds or thousands of federal workers, and interfering with the operations of the government when we are in the middle of the worst public health crisis in more than a century. One sentence in the continuing resolution (CR) that funds the government for the rest of the fiscal year will stop it. For Democrats, it should be an easy call. For Republicans, it should also be an easy call. Poisoning the well is never good, and the fact that it can eventually be fixed is no reason to let it happen.