“I am a Stalwart, and I want my reward.”

Little did Charles Guiteau know when he uttered those words in 1881 in defense of his assassination of President James Garfield that he would become the catalyst for the creation of the modern civil service system.

Guiteau had supported Garfield for president and, as was the case at that time, felt entitled to a federal job as patronage for his support. Garfield’s failure to accede to this request cost him his life. Guiteau shot Garfield point blank in July 1881; Garfield ultimately died in September of that year. Guiteau paid the ultimate price for his crime, being hanged in June 1882.

President Garfield’s tragic death gave birth to the creation of the Civil Service Commission (the precursor of today’s Office of Personnel Management) via the passage of the 1883 Pendleton Act.

In simple terms, the Pendleton Act sought to eliminate the incompetence and corruption that stemmed from the prior practice of presidents filling federal government roles with political supporters, not to mention the challenges associated with nearly the entire workforce turning over every four years. Patronage hiring often featured the chaos of members of Congress and party machines battling to get their most loyal adherents placed in government jobs.

Pendleton’s passage was a good thing – at the time; change was needed. The Pendleton Act was solving a real problem: nearly all federal jobs were appointed based on political affiliation, often at the expense of merit and competence. Notably, the Pendleton Act did not restrict removals of rogue employees; federal employees remained at-will for many decades thereafter. It was only in the 1970s that full third-party review was afforded for most federal civil service removals.

Nearly 150 years after the Pendleton Act, and after many further legislative changes (the most significant being the 1978 Civil Service Reform Act), the federal workforce is very different than it was in 1883. As recently as the New Deal year of 1936, over 50 years after Pendleton, nearly 40% of the federal workforce was composed of patronage positions (some 350,000 workers). Today, with the exception of the roughly 4,000 employees that are expressly appointed by the White House based on their political support, the rest of the ~2.1 million federal employees are considered “career” employees.

Among other things, these career employees have robust procedural protections that make it very difficult to remove them from the workforce. Unlike most private sector employees, career federal employees are not “at-will” (meaning they can be removed for any reason or no reason, provided that the removal is not a pretext for unlawful discrimination); rather, they can be removed only “for cause” and through a set of complex appeal processes that are costly, time-intensive, and frequently futile. In some cases, arbitrators and administrative judges overrule managers and order fired employees reinstated despite egregious instances of poor performance and misconduct.

As a result, almost no federal employees are terminated; in FY2023, for example, only about 3,000 non-probationary federal employees were terminated for performance or misconduct reasons, about 0.3% of the workforce. Workforce surveys show that federal managers have little confidence that they can remove poor performing government employees.

No doubt, the elaborate protections against removing civil servants were well-intended. But, in practice, today’s civil service system undermines democracy, merit, and responsive government service.

Recall from your eighth-grade American history class that the role of the president (as the leader of the Executive Branch of government) is to “faithfully execute the laws.” As the size and scope of government has grown significantly since 1883, the president executes this authority through the various Cabinet-level and other independent agencies that comprise the Executive Branch – e.g., Departments of Treasury, Health and Human Services, State.

The most senior leaders of these agencies are of course appointed by the president (“patronage” appointments) and generally confirmed by the Senate. But, as noted above, those appointments represent less than 0.2% of the total federal workforce. Thus, whether the president can in fact faithfully execute the laws depends on the career employees that ultimately manage the daily activities of the agencies.

Outside of the federal government, all other organizations – whether for-profit or non-profit – are led by a CEO, who sets the priorities for the organization and ultimately effects those priorities through the hiring of employees who are accountable to the CEO’s mission. Employees are expected to accomplish the organization’s objectives; they are rewarded for doing so and may be removed for failing to do so.

Organizations set-up this way function efficiently – everyone knows what is expected of them and is accountable to the goals of the organization. Performance management of employees is the mechanism by which organization’s maintain alignment. In the absence of alignment, confusion reigns, service declines, and ultimately the organization’s sustainability may be in jeopardy.

The federal government lacks this accountability mechanism; it’s a key reason why so often the government fails to deliver results for the American people.

Although the president is elected by the American people based on a proposed agenda (and is accountable to the people through the election cycle), unelected federal employees who are in senior leadership positions and running large swathes of the Executive Branch are not accountable to the president – and derivatively to the electorate.

If they choose to focus on policies of their own making, even those that may be in direct contravention to the president’s policies, they can be removed from their roles only through an onerous for-cause process. We know – from the above data – that these removals simply do not happen.

The result is an inefficient federal government (generating $2 trillion annual deficits) that does not march to the tune of a single drummer – the duly elected President of the United States.

Democracy is replaced by bureaucracy – unelected civil servants who may subvert the will of the people by pursuing policies of their own making and resisting policies put in place by the elected president. While most civil servants execute the law faithfully, there are many clear examples where government employees resist or slow-walk the policy initiatives of the president, secure in the knowledge that there will be no repercussions for this behavior.

That is, until today.

Under the leadership of President Trump, OPM today released Schedule Policy/Career, a formal regulation that restores democracy by reinforcing the president’s ability to faithfully execute the laws.

Schedule Policy/Career does this by creating a process for designating a limited number of policy making roles among the executive agencies that will be at will. This means that no longer will individuals in these policy making roles be able to execute their own priorities, but rather will be accountable to the will of the American people, as enforced by the policies promulgated by the duly-elected president.

But, wait, isn’t this just a return to the patronage system that Pendleton, et al, forbids?

No. All of the same protections in favor of merit-based hiring and to guard against patronage that the Pendleton Act sought to provide career civil servants are present in Schedule Policy/Career. Pretty much all that has changed is that policy-making civil servants can be removed at-will —just like under the Pendleton Act, and just like private sector workers and many state government employees.

· Schedule Policy/Career expressly prohibits disenfranchising or terminating any policy making executives based upon their personal or political support (or lack thereof) of the president or his policies. Rather, they are required to faithfully implement Administration policies to the best of their ability, consistent with their constitutional oath and the vesting of executive authority in the president.

· Schedule Policy/Career requires that the hiring (and review) of these executives must follow the merit-based hiring principles that OPM has already developed, and which have been further strengthened under President Trump’s leadership by the Merit Hiring Plan. This means they must be assessed based on their actual fitness for the role, rather than on patronage. The White House is not involved in any manner in the hiring or review of these roles.

· Schedule Policy/Career complies with all due process requirements for placing roles into Schedule Policy/Career. In placing roles into Schedule Policy/Career, the president is acting according to specific power that he has been designated by Congress to determine that certain positions are of a “ confidential, policy-determining, policy-making or policy-advocating character” and thus exempt them from onerous removal procedures that often shield poor performers and employees who commit misconduct. Schedule Policy/Career employees will receive appropriate notice that they are being placed into this new category.

· Schedule Policy/Career preserves all existing whistleblower protection for designated individuals. It requires agencies to create rules to protect Schedule Policy/Career employees against retaliation for raising allegations of waste, fraud, abuse, or violation of laws through appropriate channels.

· The Schedule Policy/Career final rule makes clear that Schedule Policy/Career should not be used to effectuate mass firings or the utilization of Policy/Career designations to accomplish organizational restructurings. Rather, Policy/Career provides a scalpel through which specific individuals that are interfering with the democratic process of policy making can be reprimanded or removed.

The result of Schedule Policy/Career will be a restoration of our democracy and a return to the founding principles of our separation of powers. The Executive Branch will once again be accountable to the electorate – not to career bureaucrats who may choose to pursue their own objectives. For, as James Madison noted during the First Congress, “[I]f any power is in its nature Executive, it is the power of appointing, overseeing and controlling those who execute the laws.”