So What Just Happened, Exactly?
Very late Monday night, the Trump Office of Management and Budget released a two page memo ordering a 90 day “pause” to ensure all federal aid aligned with Trump’s priorities. The only exceptions listed within the memo were Social Security and Medicare. All other benefits or aid: Pell grants, Medicaid, nonprofits, food stamps, low-income heat assistance, state transportation departments, local police/fire assistance - just to name a few - were to be stopped by 5 PM EST on Tuesday. A massive public backlash started Tuesday mid-morning, culminating in an emergency judicial order putting it on hold until Monday the 3rd. On Wednesday afternoon, Trump rescinded the memo. To quote Chuck Schumer, “Americans fought back and Donald Trump backed off.”
Part of the original OMB memo
Outside of the strictly human cost and fear over the “pause,” there was a deeper, more sinister goal by the wanna-be king: erosion of the separation of powers and creating an imperial presidency. The Constitution is very clear: only the House of Representatives can start revenue bills. Only Congress can appropriate money.
The president used to be able to impound money that Congress had previously appropriated, up until 1974, when frustration’s with Nixon’s abuses of that specific power boiled over. The Line Item Veto Act of 1996 gave President Clinton the power to strike specific portions of bills before signing them into law before the Supreme Court struck it down two years later. Trump’s gambit is to once again set the Executive Branch as the most powerful. It does not appear that Congress or the Supreme Court are interested in opposing him.
Underneath the surface of this staggeringly huge story, Trump also offered every single federal employee a buyout of up to 8 months salary. This “offer,” spearheaded by Elon Musk, has gone so far as to have a prewritten resignation email drafted and sent to almost every single federal employee. While the plan faces a wide array of legal and logistical hurdles, if even 5% of employees take this poisoned parachute, Trump will be able to reduce the effectiveness of any internal resistance. With Congress and the Courts in his pocket, only the federal bureaucracy and the People able to resist his draconian desires.
The biggest reason why federal employees can act this way is that they have a constitutionally-protected private property interest in their job. Remember the Fifth Amendment and its guarantee of due process? Because a federal employee works for the government, their wages (property) must have some sort of due process (discipline, documentation, gross violation of work rules, administrative hearings, etc) before being fired. The Supreme Court beefed up government employee’s rights in the Loudermill (1985) decision, which built upon the Civil Service Reform Act of 1978 and the Pickering (1968) decision.
Does this make sense? Good, because here’s the fly in the ointment and Trump’s secret weapon: Schedule F government employees.
The broad brush definition of Schedule F employees are senior federal government employees that the President may appoint or fire with or without cause. This makes sense: you want the ability to implement an agenda and having key subordinates answerable to the President is a good way to implement lawful policies. Most Secretaries at the state level work this way, too: your State Secretary of Transportation, State Secretary of Revenue, and others may have this same arrangement.
The federal government used to operate on the spoils system: the President would appoint people loyal to him to every single government position and the old employees would leave. The Pendleton Civil Service Act of 1883 changed all this, starting with the Post Office and port officials. Ironically, the Pendleton Act would be passed after the assassination of President Garfield. The assassin, Charles Guiteau, believed that Garfield did not give him a position due to political differences.
Senator George Pendleton
By “offering” this buyout, Trump could potentially reclassify those positions from civil-service protected jobs to Schedule F jobs and staff it with loyalists. This would essentially be a decapitation strike of senior leadership within the bureaucracy. The federal bureaucracy would be able to be used against political rivals, blue states, and holdouts to the MAGA ideology. Given the way Trump has used his powers thus far, this is not a possibility to be dismissed lightly.
Elon has already run the head of the FAA out of the agency. Trump fired the General Counsel of the National Labor Relations Board, along with two NLRB Commissioners in violation of the National Labor Relations Act of 1935. He is already working on kneecaping resistance.
So what can we do?
If you are a federal employee, I urge you to remember your oath to the Constitution. I beg you to hold the line and hold on. For those of you with federal employees as family members, support them and help them find the strength to carry on.
As I wrote previously, there are a lot of ways to get involved and to raise the alarm. The bare minimum that you should be doing is contacting your legislators and organizing locally. Work with your labor unions and community groups to find ways to show solidarity. Do you have a few friends that can take turns sitting in local government meetings? Start a letter writing campaign? Form a call tree?
Without the public stepping up, it is hard for institutions to effectively resist someone hellbent on tearing them down. In truth, our institutions are weaker now than they were in 2016 and Trump is not only stronger, but he has a more organized movement behind him with a gameplan. They will try to execute it.
When our Founding Generation declared their independence from the most powerful empire in the world, they took some heavy losses early, but kept the faith and won.
When our forebears took up arms to crush the peculiar institution of the South and reconstruct the Union, they did so without fear and sang “John Brown’s Body” as one of their battle songs.
When our grandparents and great-grandparents demanded labor rights, they faced down Pinkerton detectives, armed with machine guns. Only a few years later, they would be in Africa, Europe, and Asia, fighting not just against tyranny, but for liberty and democracy.
Do not let fear cripple you. Our forebears have done much greater against much worse. We shall overcome. If we fight delaying battles again and again, then he won’t be able to carry out his plan in these next four years.
Let’s get to it.