Title and Content of the Executive Order
On March 20, 2025, President Trump issued an Executive Order entitled Strengthening the Suitability and Fitness of the Federal Workforce.
This is the primary purpose of the Order:
The Director of the Office of Personnel Management (OPM) is delegated the authority to make final suitability determinations and take suitability actions regarding employees in the executive branch based on post-appointment conduct, consistent with applicable law. In this context, a suitability action can include a directive by OPM to the head of an executive department or agency (agency) to remove an employee who does not meet the suitability criteria defined in OPM’s regulations.
To do this, the OPM director is directed to propose regulations to implement the Order. The proposed regulation will consider “requiring that an employing agency must make a referral to OPM for the OPM Director to make a final suitability determination and take a suitability action regarding an employee based on post-appointment conduct.”
Moreover, the Order states that if the “Director of OPM issues specific instructions as to separation or other corrective action with regard to an employee, including cancellation of a personnel action, the head of the agency concerned shall comply with the Director of OPM’s instructions within 5 work days….”
Purpose of the Executive Order
OPM will now go through the rulemaking process to implement the requirements of the Order. It will be published in the Federal Register, the new rule will be written and proposed, and public comments will be allowed for a set time period.
After that is done, OPM will issue the new rule. The new rule may have amendments or be published as it was written. Sometimes, a final rule is never issued.
There is another purpose for this Order that is not directly stated in the Order itself.
On February 28, 2025, a district court judge in California issued an order regarding the termination of a number of probationary employees in various federal agencies. The decision held that OPM did not have the authority to fire probationary employees. Firing a federal employee could only be done by the employing agency.
OPM was also ordered to inform agencies it has no power to dictate firing employees across the federal government.
OPM took action on that matter, as noted in this article. That was not the end of the issue, however.
The new Executive Order would give OPM the authority to direct the removal of a federal employee or, as noted in the Order, “make final suitability determinations and take suitability actions regarding employees in the executive branch based on post-appointment conduct….”
Role of the District Courts
Readers paying close attention to court decisions issued in recent weeks regarding actions taken by the Trump administration to “optimize” the federal workforce and otherwise reduce the number of federal employees in agencies in various ways will notice that there are decisions from a number of jurisdictions. The decisions often emanate from appeals filed in Massachusetts, Maryland, California, and the District of Columbia.
While district court cases were traditionally confined to the jurisdiction of the court issuing a decision, over time, the judges have assumed more power and now sometimes issue nationwide injunctions from the jurisdiction where the court is located.
There are 94 federal district courts in the United States, including at least one in each state, the District of Columbia, and U.S. territories such as Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands.
Congress has authorized 677 district court judgeships. The actual number of serving judges fluctuates due to retirements, vacancies, and new appointments.
This means that when a lawsuit is filed, the organization filing the appeal may pick among a number of jurisdictions where there is a greater possibility of getting a decision from a judge in a district where political sentiment is more inclined to be favorable to the issue that is litigated.
This is often referred to as “forum shopping.” It is a colloquial term referring to litigants filing a case where they believe a favorable judgment is more likely. Jurisdictions are sometimes considered “plaintiff-friendly” and attract new cases, even if there is no obvious connection between the legal issues and the jurisdiction.
President Trump has faced significantly more nationwide injunctions compared to other presidents. During his first term, for example, Trump’s administration was subject to 64 nationwide injunctions compared to 12 under President Bush, 19 under President Obama, and 14 under President Biden (through his third year).
In President Trump’s second term, over 15 injunctions have already been filed—more than the total against the Biden administration in his four years in office. In February 2025 alone, 15 nationwide injunctions were issued against the Trump administration.
Leading to the suspicion that decisions are influenced by political philosophy, Democratic-appointed judges have ordered 92.2% of the injunctions against the Trump administration in his first term. Five of the 64 injunctions were ordered by Republican-appointed judges. Republican-appointed judges ordered all 14 of the nationwide injunctions against the federal government during the Biden administration.
During Trump’s first term, predominantly liberal judicial districts were where the decisions were issued. 15 injunctions (23.4%) were issued by the Northern District of California, 10 (15.6%) by the District of Columbia, and 8 (12.5%) by the District of Maryland.
The result is that the Trump administration has asked the Supreme Court to intervene.
Summary
The Trump administration is taking action to enhance its ability to take action in restructuring of the federal workforce—one of the prime objectives outlined during his campaign. The administration believes this is necessary as the number of district courts issuing nationwide injunctions in these jurisdictions has reached “epidemic proportions.” Acting Solicitor General Sarah Harris filed an emergency appeal to the Supreme Court on this issue on March 13, 2025.
She argues federal district judges do not have the authority to issue sweeping judicial orders that block policies throughout the entire United States. Instead, such an injunction should only apply to the geographic district where the judge is located or to the specific individuals that filed the lawsuit as “Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere.”
The Supreme Court has not directly addressed the issue. If it does intervene, it would potentially have a major impact on the outcome of the attempts to restructure (“optimize”) the federal government and how it runs.
In the meantime, federal district courts have slowed down the administration’s attempts to restructure the federal bureaucracy. This latest Executive Order is a different approach addressing one aspect of the restructuring. If applicable to the issue, it is likely similar Orders will be issued on other aspects to restructure the federal government.
