Never Underestimate the Power of Unfinished Business

Take Schedule F, for example

The fathomless bottom of the deep state.

The Senior Executive Service (SES) class of federal employees was created under President Carter through the passage of the Civil Service Reform Act of 1978. The SES was established to “...ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality.” Another Carter-created component of the State, as is the Department of Education. The SES employees were supposed to ensure top performances in all the various agencies. That was the theory, but the reality is something entirely different, as is so often the case with these initiatives such as the “Department of Homeland Security”.

Members of the SES serve in the key positions just below the top Presidential appointees. SES employees are the major link between these appointees and the rest of the Federal workforce. They operate and oversee nearly every government activity in approximately 75 Federal agencies. They are referred to as members by the Office of Personnel Management and are considered above “employee” designation. They are members of the SES, and don’t you forget that! Today’s SES runs the country.

The SES even has its own flag (which has been largely removed from the government webpages since I last wrote about the SES in June of 2022). and their own non-profit agency called the Senior Executive Association (SEA), whose stated goal is to protect the rights of SES members - which lists both lobbying Congress and instituting legal action to protect SES member status. This non-profit acts like a union.

SES members operate and oversee nearly every government activity in approximately 75 Federal agencies and serve in key positions just below the top Presidential appointees. Thus positioned, the SES bosses enforce political orthodoxy and fidelity to the deep state. They can act in this manner because their employment is virtually guaranteed. An SES employee’s job is so secure that an Agency Head cannot terminate an SES employee unless the Commissioner issues a certificate stating that the termination is in the public interest. Even then, the termination is subject to litigation.

Barack Obama believed that the SES program should be expanded and, through a 2015 executive order, “Strengthening the Senior Executive Service,” sought to expand and “facilitate career executive continuity between administrations.” But more than that, his executive order implemented:

“a comprehensive, integrated, and strategic focus on diversity and inclusion as a key component of the recruitment, hiring, retention, and development of their SES cadre.”

Yep - the federal government has been using DEI-based hiring and promotions for the SES instead of merit, well… ever since Obama’s presidency.

By May 31, 2016, agencies with 20 or more SES positions were tasked with developing a plan “to increase the number of SES members who are rotating to improve talent development, mission delivery, and collaboration.”

Obama’s other objective, other than securing more DEI employees, was to secure more loyal troops for the administration of his chosen successor, Hillary Clinton. Luckily, she then lost to Donald Trump. However, the increased number of SES employees, strengthening their stranglehold on government power and over the presidency, remained.

As it turns out, the Justice Department includes those elite, highly paid bosses from the Senior Executive Service. So does the Department of Homeland Security, from which the SES also deploys personnel into the Secret Service. As does just about every agency in the US government. As of 2018, there were almost 8,000 SES employees.

The other important point about the SES is that the president has no role in choosing them; he can’t re-assign them or fire them. The SES comprises the non-transparent group of managers and elites who run the country from within. They are the employees who quietly block, slow-walk, and defer presidential orders. What President Trump and Kash Patel might call the “deep state.” In effect, our democracy has been turned upside down while being captured by bureaucratic and corporate interests that endorse authoritarian policies - hence, we are now living under a system of “inverted totalitarianism.” The United States has been co-opted into a managed democracy, thanks to Carter and Obama. 

President Trump was stymied in his efforts to reform the government due to the SES cadre, and then he finally hit upon a solution. That is an executive order known as “Schedule F,” which he signed in October 2020, just prior to leaving office. Biden canceled the Schedule F executive order on the first day of his presidency.

This new employee classification system would have included federal workers in "confidential, policy-determining, policy-making, or policy-advocating character," which are "not normally subject to change as the result of a presidential transition."

The “Schedule F” executive order would have allowed agencies to reclassify policy jobs under a new employment schedule and had proposed to give senior managers greater flexibility in hiring candidates and firing employees. Hence, the SES employees would have functionally become “at will” employees. At-will employment means that an employer can dismiss an employee for any reason, without having to establish "just cause" for termination, as long as the reason is not illegal. At-will employment is the law of the land in all states except Montana.

President Trump stated that this executive order would be reinstated on day one.

But not so fast!

On January 22, 2021, shortly after taking office, President Biden repealed the Schedule F executive order. This action prevented Schedule F from being implemented, as it had not yet taken effect when Trump left office.

In September 2023, the Biden administration, through the Office of Personnel Management (OPM), began working on new regulations to make it difficult to reintroduce Schedule F policies.

On April 4, 2024, OPM issued a final rule aimed at stopping potential future attempts to implement Schedule F or something similar. This rule ensured that the new civil service job protections couldn't be removed by reimplementing schedule F.

However, all of these political machinations may come to naught.

Remember the Chevron deference?

The Chevron deference was a key principle in U.S. administrative law for nearly 40 years, established by the Supreme Court in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. It directed courts to defer to a federal agency's reasonable interpretation of an ambiguous statute that the agency administers.

This doctrine significantly empowered federal agencies by giving them considerable leeway in interpreting and implementing ambiguous statutory provisions. It essentially allowed the administrative state to create laws without congressional oversight.

However, in June 2024, the U.S. Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo. The Court ruled that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency's interpretation of the law simply because a statute is ambiguous.

The end of Chevron Deference represents a major shift in administrative law, reducing the power of federal agencies and increasing judicial scrutiny of agency actions. One of the the implications of the Chevron deference is the reduced power for federal agencies in interpreting laws.

How does this affect schedule F?

The Office of Personnel Management (OPM) may need to provide more robust justifications for its new policies regarding Schedule F, as they can no longer rely on the Chevron deference to support their interpretations of federal employment laws.

The truth is that as soon as President Trump implements Schedule F, the Senior Executives Association may challenge it in court, and the OPM will use their new rules to fight it tooth and nail.

Due to the Chevron deference, this legal fight may be aborted or short-circuited. Time will tell.

On the Legislative side

In 2023, the House adopted an amendment to the annual defense authorization bill for 2023 that would prevent future administrations from reviving Schedule F or similar measures. However, during the reconciliation process between the House and Senate versions of the bill, the Schedule F ban was omitted from the final compromise version. The final version of the 2023 NDAA that was signed into law did not include the language banning future attempts at creating Schedule F, but congress may pull those clauses out of the Democrat party bag of tricks at any time.

The easiest way out of this quandary in the long term is for Congress to amend the Civil Service Reform Act of 1978 to clarify the role of the SES employee and other employees within the federal government. This would be a permanent solution instead of a temporary bandaid.

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