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James Sherk, Schedule F Executive Order Author, on How Unelected Bureaucrats Sabotage Policy, and What to Do About It

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“It is just a nightmare trying to fire a federal employee,” says James Sherk, director of the Center for American Freedom at the America First Policy Institute.

During the Trump administration, unelected federal bureaucrats delayed, blocked, or subverted much of Trump’s agenda, he says. But firing a federal bureaucrat often requires costly litigation. “More often than not, they get reinstated. … And you’re going to have to cover their attorney’s fees and give them back pay,” Sherk says.

Sherk was deeply involved in efforts during the Trump administration to give presidents the ability to fire powerful bureaucrats that engage in insubordination or intransigence, most notably in the drafting of the Schedule F executive order.

“They have no accountability to the American people … It’s a huge problem in a country founded on the principle of government by the consent of the governed,” Sherk says.

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Jan Jekielek:

James Sherk, such a pleasure to have you on American Thought Leaders.

James Sherk:

Oh, thank you for having me on.

Mr. Jekielek:

So James, you recently wrote an op-ed in the “Wall Street Journal” which really caught my attention, “The President Needs the Power to Fire Bureaucrats.” Now that’s kind of an interesting moment to be publishing such an op-ed. So tell me about this.

Mr. Sherk:

Well, in theory, the president runs the executive branch. We have an election, the people pick who they want to be the president. And all executive power per the Constitution is put in the president, and the federal bureaucracy is supposed to do what the president says. That’s not how it works in practice. The way it works in practice is that these federal employees have very extensive removal protections. It’s not impossible to fire a federal employee, it’s just almost impossible and a ton of work and a very high likelihood that it’s going to get overturned. And so in practice, these career federal bureaucrats think they’re invulnerable, because they’ve got these extensive protections.

They have a lot of ways to try and stymie the president’s agenda, and in many cases successfully block him from taking policies. Even if you campaign on them—even if it was a presidential priority. The bureaucracy, because of these civil service protections, is empowered to basically say, “Yeah, but we know better, and we’re not going to do this.” No one votes for these career bureaucrats. They have no accountability to the American people. And if the government is wielding its vast power in a manner divorced from what the elected representatives in Congress and the president in the White House is saying, then you have an unaccountable government. And it’s a huge problem in a country founded on the principle of government by the consent of the governed.

Mr. Jekielek:

But why now at this moment are you publishing this?

Mr. Sherk:

Well, it’s gotten a lot of attention recently. I served in the White House under President Trump for all four years. Part of my responsibilities there was working on civil service issues, as well as some regulatory issues. And in the White House, I would just get constant reports from my counterparts and the different federal agencies about all the things that federal employees were doing to make it harder for them to implement the president’s agenda. We put out a report in February of this year documenting this. But I think honestly what’s happened is there’s been more attention to an executive order that I worked pretty heavily on called Creating Schedule F in the Excepted Service. Which sounds about as exciting and energizing as watching paint dry. But it would’ve been very profoundly impactful in terms of holding the federal bureaucracy to account.

And that executive order was in the news recently, there was some “Axios” reporting that prompted some members of Congress to basically introduce legislation to say that no future president could ever bring back this executive order. Biden rescinded it. And then I published this op-ed in response to say, “No, actually we need this. If we want to protect our democracy, if you in Congress want the executive branch to implement the laws you passed, the bureaucracy has to be accountable to the people’s elected representatives.” And it’s not right now.

Mr. Jekielek:

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You know, you did put out this report in February. And so maybe give us some examples of the sort of problems that you encountered.

Mr. Sherk:

Yes. There’s a lot of problems with the federal workforce. A lot of people are familiar with the stereotype of the incompetent, lazy, poor performing government employee. There’s a good number of those folks. Surveys of federal employees themselves say that there’s a lot of those folks. And it frustrates the federal workforce, but they’re not actually the biggest problem. The biggest problem are the very smart and capable and highly motivated people who don’t like the president’s policies and are very capable of using their positions to block it. So the way the government is staffed is you have about 2.2 million people in the executive branch. It’s a huge bureaucracy. And there’s 4,000 political appointees. So the political appointees are there to provide high level, direction and supervision and policy directions. With the expectation that the career staff are going to faithfully implement those orders.

If they decide they don’t want to carry up those orders and they’re protected with these removal protections, they’re simply not orders of magnitudes near enough political appointees to do that work instead. So one example, the Department of Justice Civil Rights Division is notorious for having very ideologically motivated career staff. And many times during the Trump administration, these career staff were told, “Well, there’s your projects we want you to work on.” And the answer that came back was, “No. Go pan sand.”

So for example, at Yale university. There’s a investigation into Yale university and massive racial discrimination in admissions at Yale university, if you’re a Caucasian and especially if you’re an Asian American. And so the leadership in the civil rights division said, “Look, the law says, there’s no racial discrimination allowed. This is unjust, we want to file a suit.” And the career staff would not draft the complaint. So it had to be drafted by political appointees. Then after the political appointee drafted it, they turned around to the career staff, the division responsible for policing racial discrimination and educational institution and said, “All right, now we need a team of lawyers to pursue this case.” And the answer that came back was, “No, none of us are willing to work on this.”

Now they were able to bring the case at the end of the day, because they were able to poach staff from other components of the Department of Justice that were less political. So they took some employees from the Civil Division, from the U.S. Attorney’s office in Connecticut, where Yale is located. A political appointee, and they’re able to bring the case. But you can do that with one case; you can’t do that with 50.

Mr. Jekielek:

Okay. So let me get this straight. You’re telling me that they just simply flat out refused the order?

Mr. Sherk:

They were asked to assemble a team. And the answer that came back was, “No, we’re not going to do that.” Now my understanding is they were not ordered to work on it. But look, if you order them to work on the case, then you’ve got attorneys working on a case who deliberately want to attack the case. And so it doesn’t  get you what you need. And in fact, what the political appointees learned subsequently is that the more senior career staff were, in so many words, threatening the junior career staff. And saying, “Hey, anyone who helps the Trump politicals with this case, there’ll be career repercussions against them when Trump leaves office.” Another example, obviously the abortion debates been in the news a lot recently. There’s a lot of mixed opinion, split public opinion on abortion. But one area where there’s overwhelming consensus is that doctors and nurses should not be forced to participate in abortions.

This is something. If you take a look at polling for decades now, 80-90 percent of Americans believe that you should have these conscience protections. Congress also agreed and passed something in the 1970s called the Church amendments, named after the Democratic senator from Idaho who introduced them. That says, “Look, if you’re a hospital that takes federal funding, you cannot force your staff to participate in an abortion. But there’s no private right to sue, it has to be up to the Department of Justice to sue to enforce these things. Well, the career staff in the Civil Rights Division, they were not willing to work on cases that enforced them. And so again, during the Trump administration, political appointees were able to bring one case that they had to handle themselves against a hospital in Vermont that did that. And you can do that for one or two cases, but you don’t have nearly enough political appointees to litigate 15, 20, 30, 50 cases.

And it’s a public record. You can look at the lawsuit that was filed. You look at the names of the attorneys who are on there. And none of them were career employees in the Department of Justice. They decided for themselves who cares what Congress thinks, who cares what the voting public thinks, who cares what the White House thinks. We don’t support these conscience protections, and therefore we will not do anything to enforce them. If you’re an attorney, you represent your client. And in the Justice Department, your client is the United States, and you’re there to enforce the laws. You don’t get to say, you shouldn’t get to say, these are the laws I like, these are laws I don’t like, I’m only going to work on these laws.

Mr. Jekielek:

It’s one thing also to slow walk things, you hear about these sorts of situations all the time in the private sector. You get something you’re not too keen on. Well, we’ll just take that one quite easy. Maybe it’ll take five times as long, who knows. This is a whole different beast you’re describing here.

Mr. Sherk:

Yes. And look to be clear, the slow walking happens too. This was a chronic problem across agencies, that you’d have rules that would be issued under the Obama administration that would take 12 months to go from, start to finish. And the career staff were very motivated, working very hard, all rolling in the same direction to get these rules out. And then when the Trump administration wanted to roll them back, or in many cases, just roll back a part of the rule. It would take two, three times as long to rescind the rule as it took the issue in the first place. And they’re throwing down delays, and obstruction, and it’d just be constant, right? I mean, you get these complaints in the press, why isn’t the Trump administration working faster? And the answer was for a lot of these rules, it had to be political appointees doing most of the work of drafting them.

You would assign the rule to be drafted to the career employees. And what they would come back with would be either something that was not the policies they were told to do, or on paper did what they were told. But everyone reading it knew that the courts were going to toss this out on procedural grounds, that it  was not going to extend legal review. So again, it’s tough. On paper, they’ve complied with their directive, but everyone’s in on the joke that this rule is legally insufficient.

But yeah, trying to show that in a court of law in the subsequent appeals is very tough. The career staff have a lot of ways to make your life miserable. And look, to be clear, there are many good career staff in the federal government. There are many who work nights, work weekends during the COVID pandemic.  There’s a lot of good people out there—this is not every single one. But if you have a body that’s 20 percent healthy normal cells or sorry, 80 percent healthy and normal cells and 20 percent cancer cells, you’ve got an extremely large problem. And that’s what you’ve got in the bureaucracy. Anywhere between 10 to 99 percent of the career staff and these agencies are cancerous and simply not concerned with carrying out the people’s business, but advancing their own agenda.

Mr. Jekielek:

So what was the overall effect? You were there throughout the administration, what was the overall effect of this kind of behavior in, for lack of a better term, the administrative state?

Mr. Sherk:

It’s a huge problem. And I think Democrats, part of why this doesn’t get them up in arms is because for the most part, they and the career staff are on the same side. If you take a look at campaign finance donations, or voter registration, or surveys of the federal workforce, it leans pretty heavily to the left. And especially among the more senior sort of managerial supervisors, the policy making ranks. It’s not that every federal employee’s a Democrat or a liberal, but it leans pretty heavily in that direction. And so in general, a left-wing administration is in sync with the bureaucracy. They want to go in the same direction and there’s, yes, some hiccups and they’re not always a 100 percent on the same page, but generally they are. You could say it’s sort of a nuisance factor to them. But if you disagree with the political leanings of the bureaucracy, and if you’re elected on that platform, there’s major resistance.

You’re still going to be able to get your top priorities done. If you’ve got high priority rules in the different departments, those still get done, but they’re going to take longer. But basically all your secondary and tertiary priorities that you would also like to do, but just aren’t your top of the line priorities. You don’t have enough political appointees in the agencies to write all the rules and the policy documents. And so you pick your top priorities and that’s all that gets done. And it shouldn’t work that way. There’s great wisdom in having a career civil service, where you’ve got institutional knowledge and experience that continues across administrations. That’s why the Schedule F executive order did not make the entire federal workforce into political appointees, or anything close to it. But if you’re going to be in one of these policy making roles, then you have to be accountable to the political leadership. So that if you are engaging in this sort of intransigence, that they can just say goodbye.

If you’re not willing to act as a nonpartisan neutral civil servant, then you don’t get to stay in the agency. And also delay, the fact that the career staff can delay rules they don’t like by an extra year, year and a half in many cases, that can kill the policy. Because then opponents of the rule will then sue over it. Oftentimes it’s a form shop to judge liberal appointee if they’re filing suit somewhere in a California district court where it’s all liberal judges. And by the time it gets appealed up to a more neutral forum. Those injunctions typically got lifted, but if the rule gets issued so late that the administration has changed and there’s no one there to ask for the appeal. And then you just, you’re stuck with the district court order saying this policy is gone. Goodbye.

That would happen over and over again. The public charge rule that the Department of Homeland Security issued, that was a rule that basically said, “You don’t get to come here and be an immigrant if you’re going to go on welfare. And we’re going to take these statutory limits much more seriously and crack down on people being let in and then going on the door.” That was not a rapidly issued rule. It was ultimately issued and then opponents filed suit in district court and some liberal jurisdictions. They got some liberal judges saying, “No.” The Trump administration was appealing, but then the administration changed. And the Biden administration just said, “Oh, we’ll drop all the appeals. Supreme court, you don’t need to pay any attention to this.” And what was left was just the lower court orders striking down the rule on what I would consider a fairly weak legal grounds, given the sort of express statutory authorization and discretion given to the government here. But the point is the delays just, they ran out the clock and were able to kill the policy.

Mr. Jekielek:

So this makes me think of hashtag resistance.

Mr. Sherk:

And in some cases, the employees themselves would be saying this, right? They’re Freedom of Information Act requests that were sent into the National Labor Relations Board after Biden fired the Trump political appointee general council on his first day in office. This is a term position. Traditionally, most Republican and Democratic administrations have said, we will respect the independents of the National Labor Relations Board, general counsels get to serve out their term. Biden said, “No, you’re gone on day one.” And he picked a regional director to serve as the acting general counsel. And some groups sent in Freedom of Information Act requests to see what was being sent to and from this guy after he got tapped. And low and behold, he’s getting emails from career staff basically praising him for his “brave resistance” and saying how much all of his efforts had been effective at stymieing the Trump administration policies, and that the Trump would’ve done so much more damage if it wasn’t for people like him engaging in brave resistance.

You want to tear out your hair. And these are the same types of people who in the Trump administration were systematically engaged in resistance. You’d have one of the jobs of a career attorney is to brief political appointees on the legal precedence. You have parties make their arguments, and then you also do an independent review of the law. And the career attorneys would only provide precedent supporting their preferred outcome to a case. They would not brief up precedents that supported coming to a contrary conclusion. So the political point would have to do their own legal research to understand both sides before making a decision. They could not rely, and very capable, very smart attorneys, incredibly competent people. Then you have them basically engaged in widespread subterfuge to prevent the political appointees from implementing their policies. That is a huge problem.

Mr. Jekielek:

Well, so then let’s jump to Schedule F. The Hill described it as, “The biggest change to federal workforce protections in a century converting many federal workers to “At-will employment.”” So tell me about this.

Mr. Sherk:

So when Congress passed the Civil Service Reform Act of 1978, there’s a language in there actually a section 75.11 of Title Five U.S. Code that says that you are exempted from all these civil service protections and appeals if you are in a position that the president or the Office of Personnel Management have determined to be of a “confidential, policy determining, policy making, or policy advocating character.” Now that language has always been interpreted as basically applying to political appointees and Schedule C. That’s the term for most of these political positions is a Schedule C position, and it’s never been applied to career staff. And we were taking a look at this, I was getting these reports. Trump who was seeing even more of these reports across the entire government, not just the agencies in his or my portfolio. And there was a very high degree of frustration with this undemocratic resistance.

And so we knew that the president wanted to have more authority to hold people accountable. And if you’re not performing, he could say you’re fired. And we’re taking a look at this and saying, Hey, there’s a lot of career positions that are of a confidential, policy making, policy determining, and policy advocating character. Like everyone who drafts agency regulations and guidance falls into that bucket. There’s a lot of positions where, or the supervising attorneys in some of these divisions like the Department of Justice, where they’re basically engaged in legal resistance and won’t enforce the laws and policies they don’t like. And so we’re saying, “Hey look, what stops us from putting career employees into this bucket?” And that’s basically what the Schedule F executive order did. It said, “We’re not going to turn you into political appointees. We don’t want there to be any expectation that you’re going to be hired based on political connections or that you’re going to lose your job at the end of administration.”

There is great value in having a career civil service and this sort of institutional expertise, but there’s got to be accountability. If you’re like a line IRS inspector, or wage and hour division inspector, and you mess up on an audit that affects the person you’re auditing or the business you’re investigating, but it doesn’t affect the entire country, it’s sort of localized and limited. 

But if you’re the guy who writes the guidance and directives to those line agents and you do a bad job, or you try and stymie the policies to the president, that affects the entire country. And so for you guys, who’ve got this tremendous policy influencing power and in many cases are using that policy influencing power to influence policies, and to move the bureaucracy or move federal policy in their preferred direction. Well, then you’re going to get the same civil service protections as a political appointee, which to say, you’re not going to have any.

And so Schedule F basically said, this is like schedule C. You have no removal appeals rights, like a schedule C employee, but only your career staff. So all the rules that say you’re not going to be hired or fired based on politics or political donations, all that sort of stuff, that’s still going to apply. Agencies are still going to enforce that. But they’re not going to let you litigate your removal for years on end and enormous consequences cost to the government if you get fired. You’re acting like political appointees, you’ll be treated like political employees in terms of the accountability you have to policy makers. And official Washington lit their hair on fire, which I think was a pretty good sign we were right over the target zone.

Mr. Jekielek:

So this is actually quite fascinating because you’re saying this doesn’t target everybody by a long shot. This basically targets the people who are actively in the position to block implementation of policy the most.

Mr. Sherk:

That’s right. I think all federal employees should serve at-will. It’s appropriate that there’s protections in there to say you’re not going to be fired based on political campaign contributions, or your race, or what have you. But excepting discriminatory, bad reasons for firing, otherwise you serve at the pleasure of the agency. Save all executive power is vested in the president, and if you’re going to wield power in the president’s name, then I think you ought to be accountable to the president. 

I think that’s what the Constitution requires, but this executive order did not come close to that far. Our estimates were that Schedule F would’ve covered about 50,000 federal employees. So a large number of people [are] in isolation, but out of a 2.2 million man bureaucracy, not that big of a percentage. And it would target, basically, those folks involved in setting agency policy. So it would have a heavier effect here in the Washington D.C. region. And it would sweep up a lot of the headquarters employees, but most of the line employees in the field would’ve been unaffected.

Mr. Jekielek:

But at the same time, let’s call it a precedent setting activity, wouldn’t you say?

Mr. Sherk:

Oh yes, absolutely. No, I think it was… Had president Trump been inaugurated for a second term, I think that it would’ve done an enormous amount of good. I mean that’s how he sounded about a week and a half before the 2020 election. And that was such that the way it worked is the agencies would come up with their list of employees to go into Schedule F. And that basically those lists were going to be due the day before the 2021 inauguration. And you had the President being sworn in for that second inauguration then. Yea fairly early on the second term, they were all going to be moved into Schedule F.

And the unions of course were going to sue over it. But the legal authorities are like right there in black letter, Congress expressly says, you can do this. And the case law all says, courts aren’t going to second guess these decisions. So the unions would’ve sued, but I think it would’ve been so much sound and fury signifying nothing—just them showing the flag. But I think they knew, and we knew they were all going to lose.

Mr. Jekielek:

So, you obviously did a quite extensive legal analysis around this, but some people might ask why wait so long to try to implement something like this, if indeed you’re having these problems?

Mr. Sherk:

Well, it took a while to develop the policy. So we first had the idea for doing this in January of 2019, and started taking a look at it, looking at the history, looking at the court precedents, work shopping different ways of implementing it, having very confidential discussions with senior agency leaders about this. The feedback from all of them by the way was, “Oh good grief, this is amazing. We need this, we need this. I wish we’d had this from day one. What a great policy.” The non career staff who were written on this were all very enthusiastic about it. There a few reasons it got delayed. One was just that sort of process of review and it would’ve been a big impact. So you’re going to make sure that you’ve got your legal docs squared away. What happened was, and this is being reported elsewhere, is that basically it was May of 2019, we had another meeting of agency political leaders, very close hold.

And their response was, “We wish we had had this from day one. If we’d had this in 2017, our lives, would’ve been so much easier for the past two and a half years. However, we now have all our regulators basically on pace to finish up these major regulations by the end of 2019 or early 2020. And we don’t want to do something that will cause them to set their hair on fire. So why don’t we issue this once these major regulations are done early in 2020, as we’re gearing up and clearing the decks for reg agenda for a second term.”

So that was the plan. And then you might remember in March of 2020, something else was going on. So the COVID pandemics struck, and that was the number one, two, and three priority for basically everyone at the executive branch. And rightfully so. And this reform was still considered important, but was not nearly as important as vetting executive orders or agency regulations and policies responding to the COVID pandemic. So yeah, had COVID not hit, I think Schedule F would’ve probably been signed in April or May of 2020, but because COVID had pushed it back to October.

Mr. Jekielek:

It’s interesting that you mentioned coronavirus policy because in your op-ed you mentioned Dr. Burkes, who in her book, she reveals herself as being the major architect of the policy. And frankly, not actually following and actively resisting some of the president’s requirements.

Mr. Sherk:

No, that’s right. It’s somewhat stunning, you get all these reports sort of privately of here’s all the things that her staff are doing to political appointees and ignore directives. And then Dr. Burkes, who was a career employee, publishes a book boasting about it. She writes in her book that she was getting directives from the White House and from senior staff to moderate the lockdown recommendations, don’t make them so strict that this is going too far. 

What she did is she describes herself as engaging in subterfuge and workarounds to push her policies past the political appointee she nominally reported to. So they would say, “Here, this guidance going out to governors and state officials and locked down recommendations.” They said, “Look, this is too strict. You’ve got to take this stuff out.” And she took it out. And then in a non track changes form just reinserted it elsewhere in the document and in less prominent locations.

And then the politicals who were taking a look at it saw where she’d have the language. So I should take it out and thought it was good, and didn’t realize that lower down on the document where they hadn’t had any issues with the stuff she put in there, she just reinserted that language. And she just describes herself as systematically engaging in subterfuge to push for stronger lockdown recommendations.

Now, look, it’s clear in hindsight that the lockdowns went too far, that the more aggressive lockdowns didn’t have a lot of public health benefit, but had enormous negative consequences in terms of economically, socially, people’s mental health, children’s educational attainment. In hindsight, we see that lockdowns went too far. And part of that was being driven by a career employee who simply felt herself unconstrained by following the president’s directives. Now, it is perfectly legitimate, more than that, it’s a duty of a career employee to give their best advice to a political appointee. Even if they think that’s going to be something the political appointee doesn’t want to do,.

You should hear from all sides, you don’t want to get locked in a groupthink situation. Having career staff who think you’re crazy telling you that and explaining their reasons is something that a lot of political appointees I talked to thought was very valuable and very helpful. That’s being a good patriot. What’s not patriotic is when the democratically accountable officials say, “All right, well, here’s what the policy is.” Basically saying, well, up yours, that’s not what we’re going to do. We’re going to do this other thing. And I’m going to try and go behind your back to do what I think is the best policy, notwithstanding you who have the actual authority to make that call. And this was not the vision for the civil service.

If you go back to the reformers who created the civil service, they were very clear that we don’t want hiring to be based on your political campaign, work and political connections and campaign donations and such and such. You want merit service, not a sort of show me the money service, and all of which is wise, and true, and good by the way. But at the same time, regulate hiring. But you don’t put removal protections in place because that’s just going to lock up insubordination and intransigence in the civil service. George William Curtis, who is one of the principle if not the leading advocates for civil service reform in the 1880s, was very public saying you absolutely do not give the employees a right to any sort of trial or appeal of the removal. That’s just going to lock up all sorts of mess in there.

And that’s what the Pendleton Act of 1883 did. It basically said, “We got these hiring restrictions, but you don’t get to appeal removal.” That was the vision for the civil service. The general federal workforce didn’t get the authority to appeal removals into the 1960s. So the unions and the defenders of the status quo and the Washington bureaucracy, who trot out this boogeyman of, “Oh, if you get rid of these removal protections, we’re going to go back to the spoil system. 

Well, we don’t want people buying their federal jobs.” Which is true, you don’t want people buying their federal jobs. But that has nothing to do with giving people removal protection. So that just has to do with these merit hiring requirements on the front end. Says nothing about the back end. And that was the vision for the civil service for the first eight decades that you had a merit service. It’s a completely modern 1960s innovation that you have the right to basically a trial at law before an agency can fire you.

Mr. Jekielek:

So a lot of the criticism to the Schedule F that I came across has to do with arguing that it would put something like patronage or loyalty above competence and the public interest.

Mr. Sherk:

First of all, those people haven’t read the executive order. The executive order says right in it, all those merit system requirements, and merit principles, and encrypted personnel practices, they’re going to continue to apply to the Schedule F employees. So by law, the president could exempt Schedule F employees from them. You’re just like a political appointee. You’re obviously hired based on political considerations. That’s allowed, the president can take you out from under those limitations. And the executive board said, “We’re not going to do that. Agencies, you’re going to not engage in political based hiring. You’re not going to engage in political based firing. These are considerations you’re not going to take into account. If the president wanted to politicize the civil service, he would not have given a binding legal directive to his subordinates, not to do it. So in part, it’s just sort of ignorant people who haven’t read the executive order.

But I think it also is partly a deliberate strategy on the part of some, that this is the justification for these removal protections. Who in the right mind thinks that it should be a multi-year process to fire a federal employee for engaging in policy resistance, or you just sucking at their job? About half of federal employees all say that they’ve got poor performers in their work unit who just stay on their job and continue to be a bad worker year after year. It’s a major problem on top of all this intransigence.

No one tries to defend that on the merit of, “Well private sector employees can be fired on the basis of their performance or insubordination, but government employees are special and they get to keep the job forever, no matter what.” No one tries to defend that. It’s always, “Well, we can’t have this spoil system.” And they just try out this boogeyman, in some cases, I think it’s in good faith, right? I think they just haven’t read the historical record. And don’t realize that the Pendleton Act of 1883 left federal employees at-will, right?

Everyone was saying, “Oh, they’re trying to undo the Pendleton Act.” You had much stronger removal protections under Schedule F than you did under the Pendleton Act. The vision for the merit service was merit based hiring, but basically at-will removals, at-will firing. And that we’re not going to let you appeal these removals because that would just lock up: the direct quote from George William Curtis is, “Insubordination, and intransigence, and incompetence within the federal service.” Schedule F doesn’t bring back the spoil system. Schedule F says we’re not going to hire or fire people based on politics, but if you’re engaged in policy resistance, you’re out of here.

Mr. Jekielek:

And just for the benefit of our viewers in two sentences, what’s the spoil system?

Mr. Sherk:

Spoil system is basically where a new president takes office, fires all the old federal employees, and basically replaces them with his own campaign supporters and campaign contributors. So he basically uses federal jobs to reward for supporting the party and power. And the reason they got rid of it was, again, this has negative consequences on the quality of services the federal government delivers. If you’re changing over the entire federal workforce, or a large portion of it every 4-8 years, and the people are being hired or you based on door knocking and campaign contributions not being good at the job. I think pretty much everyone agrees we shouldn’t go back to that, but that doesn’t mean you get these iron glad removal protections.

Mr. Jekielek:

Another criticism I’ve come across was just that it would create a whole new bureaucracy. You would need to create a whole new bureaucracy to be able to deal with these Schedule F people.

Mr. Sherk:

Not really. I mean, it’s a little bit of paper changes. Basically you’re changing someone’s designation, that instead of being in Schedule A, or Schedule B, or in the competitive service, now you’re in Schedule F of the Excepted Service. There’d be a little bit of bureaucracy in the agencies internally policing themselves, instead of having the office of special counsel doing it. But no, that was never an objection to those raised internally.

Mr. Jekielek:

Are you familiar with Congressman Chip Roy’s Public Service Reform Act?

Mr. Sherk:

Yes, I think it’s a fantastic bill. I think that’s pretty close to the first best standard. It basically says all federal employees are now at-will. Nobody has removal protections, no one has appeals with a few exceptions. If you’re a whistleblower, then you can appeal to federal court. And if you can prove that you’re a bonafide  whistleblower, you can get your job back. And similarly EOC complaints will operate the same way it does in the private sector. So if they don’t like your race, or your sex, your religion, and you’re being fired on that basis, then you have the same rights as a private sector employee to file to the EOC. But other than that, you’re at-will. Agencies are not to be hiring or firing based on political factors, but that’s going to be internally enforced. It doesn’t create an appeal right to the employee. And then says, “We’re going to have a process here where if an agency wants to fire an employee, basically you have to show your homework.”

This is the way the Lloyd-La Follette Act worked, and I think worked very well. It basically says, you’re proposing to fire someone and whoever wants to fire them has to put down his reasons in writing saying, here’s why we’re getting rid of you. And the employee gets to see [and] then gets to make a response. And then some other individual, other than the person proposing the removal, gets to take a look at the reasons and the response and make the final decision. And then after that, the person makes their decision. That’s it, that’s the end of it. There’s no appeal to federal court, there’s no appeal to another agency. So you have a process where… Not all managers are angels, you’re going to have what in some sense could be considered unwarranted proposals to hire someone. And so this gives that second layer of check. Forces people to show their homework and prove that you’re not firing someone for a prohibited reason, political reasons, or what have you.

But at the same time, if you’re doing any of the stuff that was happening to us in the bureaucracy, if you’re being assigned to write a rule and you’re taking three times as long as you did under the prior administration, because you don’t like what’s going on there. Or you were told to work on this case and you said, “I’d rather not.” Any of that stuff is going to be completely all right, you’re gone. That’s the end of the story.

And so you’ve got accountability in the federal workforce. You also have accountability for the firing decisions. That again, if you’ve got to some extent, an objectively unwarranted removal decision, then the agency political leadership is taking full ownership of that. And it is going to have to defend it in the press, and in the court of public opinion. And I think that serves as plenty enough deterrents for what you might consider a questionable removal. 

That we don’t need to then layer on well, we’re going to have two years of litigation after this, and you’re going to have to pay the employees attorneys’ fees and provide them with two years of back bay. And we’re going to have an arbitrator you picked by the union to handle this. And these arbitrators usually reinstate the employees, not going to deal with bureaucracy, just provide a simple expeditious process within the agency. Well also providing a check against just your purely arbitrary action on the part of a supervisor.

Mr. Jekielek:

So Schedule F is the executive branch component of something that would lead to this kind of legislation essentially. That’s how you would describe it?

Mr. Sherk:

Yes, no, basically. That’s how we saw things operating. In general, being put in Schedule F doesn’t mean that one supervisor is just going to say, you’re gone and that’s the end of the story. The agencies do have procedures. Generally, the person who proposes the removal is not going to be the person who makes the final decision. And so you’d have some sort of internal checks. The key is that they’re purely internal. And if the folks in the agency recognize that someone’s a problem, they can say you’re out of here and you’re out of here. And you don’t have the right to tie up the agency and in litigation for two years afterwards and make it a year long process with the agency before that. And it is just a nightmare trying to fire a federal employee.

And as a result, it does happen, but it only happens to the worst of the worst. And in many cases more often than not, they get reinstated. We have a report that’s going to be coming out soon, taking a look at how these  grievance arbitrators rule on removal cases. And we find that in three fifths of cases, the arbitrators who are jointly selected by the unions order the employees reinstated. And those decisions are just like, “What are you smoking?”

There was one case where there was an employee, I forget if this guy was in veteran’s affairs or the social security administration; I think it was veteran’s affairs. Where he got arrested for possessing meth, and subsequently was jailed and then pled guilty to possessing meth with intent to deliver meth. And so, as you might expect, the agency went to fire him, and the union grieved his removal and the arbitrator said, “Well, it’s bad that he got caught in a car with meth in the cup holder, and that he pled guilty to intending to deliver this. And he deserves to be punished for that. But firing him was too severe an offense. Let’s just mitigate his removal to a suspension and order him reinstated.” What are you smoking?

There was another case where the marital system’s protection board—I would call air marshal. They’re basically undercover, plain clothes, law enforcement officers who go on flights. And if there’s someone who has to hijack the flight, they basically go out and you shoot the guys who are trying to hijack the plane. And they’re randomly signed to flights, and so there’s some percentage chance any flight you’re on has an air marshal. And it’s the way we stop hijackings, and the reason hijackings don’t happen the way they did back in the ’70s. 

This guy was assigned to a flight to Hawaii and then cover a return flight back to the mainland the next day. Well, while he was in Hawaii, he decided he was going to solicit a prostitute. And to his misfortune, the prostitute he was soliciting was actually an undercover police officer trying to sting people who were soliciting prostitutes. And so he got arrested and he spent the night in jail. And as a result of that was not able to make his flight back the next day. Well, the Transportation Security Administration was not thrilled with this, as you might imagine. And said, “Okay, you’re fired.” And he appealed to the Merit Systems Protection Board. And the Merit Systems Protection Board again said, “Well, this was bad, but it wasn’t so bad as to warrant removal. We think he should have only been suspended.” And so gave him this job back.

It’s just some of these cases you want to tear your hair out, and it’s not just like one or two bad employees getting reinstated in those cases. But it sends a message to the entire federal bureaucracy, and all the HR staff that don’t even bother trying to fire these guys. Because you’re going to spend a lot of money on your own attorney’s fees—a lot of work on the part of the supervisors. And at the end of the day, more often than not, they’re going to get their job back and they’re going to have to cover their attorney’s fees and give them back pay.

Another case in the Labor Department, they had an inspector in one of the regions who was sexually harassing one of the people he was in inspecting. On his work phone, sending this person sexually harassing text messages and pictures of his genitalia. On his work phone. And so the lawyer for the person he was  harassing, contacted the Labor Department to see headquarters and said, “Hey, just so you know, this is what’s happening to my client.” So the agency leadership that was informed about this, and as you might imagine, were quite upset, and said he is gone. I don’t care what, yes he is fired, this is not acceptable behavior. This is no. He’s gone. In the HR leadership in this Labor Department Agency said, “You can’t do that. Sorry, we sympathize. We agree. We would love to get rid of him, but we’re telling you that we are not capable of firing him.” That you go to the MSP and it’s a crapshoot there, and he’s covered by union. They could grieve it. The union’s going to make it nearly impossible for us to fire him. And so we agree he’s a problem. But look, we have experience doing these things. We can’t get rid of him.

And so the end result was that this employee got put on indefinite leave. And so he basically got an indefinite paid vacation as, not only a punishment for his behavior, but in an effect a reward, right? It’s not just the TSA agent who gets reinstated after being arrested for soliciting a prostitute and leaving a flight uncovered. It’s all the other towns across the bureaucracy that they say, “We got to let this slide. We can’t fire them.”

Mr. Jekielek:

I guess Schedule F that executive order would also send a message, but perhaps in the other direction.

Mr. Sherk:

No, I think it would basically tell the bureaucracy you’re not protected. If you are going to engage in this sort of misconduct and misbehavior, if you want to act like a political appointee, then you’re going to be treated like a political appointee. And you’re expected to follow the policy directives of the president. There are plenty of routes for people to contest the validity of executive actions, people follow lawsuits all the time, but it’s not your job to internally stop these things. And you will obey the lawful directives given to you, or you will find a new job.

And the vision for Schedule F was not that you’re going to have some Valentine’s Day massacre, and 50,000 federal employees were going to be looking for work in a day. You might have to do that a few times, maybe a few hundred times. But the goal, the hope, was that the bureaucracy pretty soon will get the message and they’d stop playing those games. They act like that because they can get away with it and they know they can get away with it. And if they know they can’t get away with it and that they’re going to be held accountable, I think they would act differently.

Mr. Jekielek:

So you’re the director of the Center for American Freedom at the American First Policy Institute. What is the Center for American Freedom?

Mr. Sherk:

Our role is to protect Americans from new and traditional threats to freedom. So we take on things like the Administrative State and the Civil Service, which traditionally conservatives have viewed as a threat to individual liberty and to freedom. We’re also focused on some of these newer threats like cancel culture has become a major threat to free speech. So has big tech censorship, and so we’ve put out proposals for how states can combat big tech censorship. And you work on a report now on legislative proposals to make it much more difficult for companies to engage in this sort of ideological censorship and view policing and cancel culture. And so broadly speaking to protect the American people’s liberties from traditional and emerging threats to freedom.

Mr. Jekielek:

And final question as we finish up, your advice to any president, frankly. Would it be simply to reinstate that executive order? Is there things that should be, since the time that this actually came out, that you would change?

Mr. Sherk:

The short answer is yes. I think that the Schedule F concept is the way to go. I think that there’s ways that it could be broadened and extended to cover more employees. I’m still working on some of that research now. So I’m not going to sort of preview that, but I think it can be expanded to cover more employees. Ultimately I think every federal employee should serve at the pleasure of the president. The federal bureaucracy needs to be accountable to the president and then the president to the American people. That’s the way the constitution was designed. That’s the way the federal government should operate.

Mr. Jekielek:

Well, James Sherk, it’s such a pleasure to have you on.

Mr. Sherk:

Thank you so much for having me here.

Mr. Jekielek:

Thank you all for joining James Sherk and me on this episode of American Thought Leaders. He’s the director of the Center for American Freedom at the America First Policy Institute. I’m your host, Jan Jekielek.

This interview has been edited for clarity and brevity. 

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