One of the pillars of Project 2025 — all the political proposals which some in Trump’s world have now warmly welcomed after spending six months pretending they had nothing to do with it, is this the planned replacement of 50,000 career civil servants with political figures loyal to President-elect Donald Trump. But this isn’t an idea limited to Project 2025: Trump’s “Agenda 47” calls for an “executive order restoring the president’s power to fire rogue bureaucrats,” and Trump himself has said officials say: “They are destroying this country. They are crooked people, dishonest people. They will be held responsible.
This position is at odds with American public opinion. An investigation carried out by the non-partisan association Public Service Partnershippublished last March, reveals that 87% of Americans say “it is important to have a nonpartisan public service to have a strong American democracy.”
But can Trump achieve it? There is good reason to doubt that he can.
Trump said of public servants: “They are destroying this country. They are crooked people, dishonest people. They will be held responsible.
The key to the plan is something called Annex F, which the Trump administration created from scratch. decree published on October 21, 2020. This decree reclassified in a new “Appendix F” all “career positions in the federal service of a confidential, determining, decision-making or policy-defending nature”. These employees would lose their job protections and could therefore be fired at will. (Appendix F had in development for years but it had been delayed first for fear of alienating large swaths of government employees, then by the pandemic.)
That order never went into effect because Trump lost the election and President Joe Biden immediately rescinded it. The Biden administration, however, went even further: have a regulation adopted which was finalized on April 9, 2024 to “strengthen and clarify long-standing civil service protections and merit system principles.”
This step means that, at a minimum, the Trump administration would have to issue and finalize new regulations to replace the 2024 regulations, because presidents cannot undo final regulations by executive order. The rulemaking process typically takes months; The 2024 Biden Rule was first proposed in October 2023 and was not finalized until seven months later.
Now there is a workaround: The administration could expedite adoption of an “interim final rule.” However, this interim rule will be immediately challenged by civil servants’ unions, whose members are understandably unhappy at having been fired. A coalition of 28 unions challenged Trump’s executive order when it was released, saying it could affect up to 500,000 federal employees nationwide. (This has also been challenged by good governance groups.) These plaintiffs would surely get an injunction while the case is heard, because once you’ve been fired and replaced, it’s impossible not to be fired.
Even if the courts rule quickly on the interim rule, it will likely take at least four to six months for a decision to be issued, for reasons I’ll get to in a moment, and then there will likely be appeals until to the Supreme Court. . (The Trump administration might even request an expedited review.) For these reasons, I can’t imagine this part of the 2025 plan being implemented until at least next summer, but more likely before the end of the year next. Credit must be given to the Biden administration.
But what would be the end result of a challenge? That’s harder to gauge because so much depends on the politics of the federal judiciary, including the Supreme Court.
Statutorily, civil service as we know it today was created in 1883 by the Pendleton Act, passed to reform government and end the patronage system in which political allies and donors were rewarded with cushy government jobs . The Pendleton Act provided for a civil service staffed by experts who knew their field, must pass exams to demonstrate their skills and cannot be fired without due process.
The development of Annex F had been in the works for years, but was delayed by fears of alienating large swaths of government employees, and then by the pandemic.
But in 1978, another law, the Civil Service Reform Actcreated a loophole, now contained in section 7511 of title 5 of the United States Code, which exempted from civil service protections any person “whose position has been determined to be confidential, determining, decision-making or advocating policies,” the same language used in the 2020 Trump order.
In other words, to fire someone, the president simply “excludes” them from the civil service (i.e. competitive service) and designates their role as confidential or related to the policy. This is exactly what Annex F directed government agencies and the Office of Personnel Management to do.
This position, however, goes against the principle of statutory interpretation that laws must be interpreted in a logical manner. If an interpretation of a law creates an exception so important that it renders the law meaningless, it is probably a bad interpretation. That would be the case here: reading the 1978 law in this way would effectively nullify the entire Pendleton Act.
There is also no precedent for this interpretation. From 1978 until today, presidential administrations have understood this loophole very narrowly, exempting only non-career political appointees hired for a single presidential administration – which is what the Biden regulations say .
Additionally, laying off 50,000 employees is a massive act that falls under the Supreme Court’s new “major issues” doctrine. It is based on a very obscure and hitherto unnoticed provision of the law, it constitutes a radical departure from current practice and it has a significant impact. This would mean, according to conservative jurisprudence, that it is quasi-legislative in nature and does not deserve deference from the courts. And like the late Justice Antonin Scalia memorable outfit, Congress “doesn’t hide elephants in mouse holes.”
Annex F is exactly such an elephant, contained in the mousehole of a law that no one has ever understood that way.
That said, the case is by no means open and closed. A MAGA judge – someone like Aileen Cannon, maybe — could presumably read the U.S. Code as the Trump administration wants, and there are at least two such justices on the Supreme Court. As with many of Trump’s future actions, ultimately the fate of good governance (or the “deep state,” if you prefer) may rest with three Supreme Court justices, and as we As we have seen, it is impossible to predict how they will rule on anything. .
At the very least, the purge will not happen overnight. Trump’s order will be immediately challenged, and it will take months to draft and revise a subsequent regulation. From there, it’s anyone’s guess what will happen – like so many other things in this strange and unprecedented time.