Centralizing Personnel Authority
A new Trump move seeks to evade court orders and empower DOGE
Trump issued a new memo that gives the Office of Personnel Management more power to remove federal employees. More specifically, it allows OPM to determine if probationary employees will be allowed to stay with their agencies at the end of their probationary hiring period.
As a reminder, probationary employees are typically those who have joined the federal workforce in the last year (though sometimes longer), or sometimes when they are switching positions within government. Trump has made the removal of probationary employees a centerpiece of his effort to downsize government.
Here is my quick read on why the memo was issued, and what it means. Caveat: I am not a lawyer, so there may be stuff I have missed, and I will revise this post as I see more relevant information emerge.
A workaround to defy a judicial order
OPM claimed they had not fired probationary federal employees, which would be illegal. DOJ lawyers submitted a sworn statement from the acting head of OPM, Charles Ezell, to that effect, saying their were only advising agencies. But when Judge William Alsup pointed out that the evidence had initiated and directed the purge of probationary employees and asked Ezell to appear in court for cross-examination, the government refused to make Ezell available, and withdrew his sworn statement.
The new memo removes the need for a legal fiction that OPM, and by extension DOGE, is not centrally involved in reaching into agencies and making firing decisions. It shows an administration willing to lie to judges in court about breaking the law, and when called on the lie, simply change the law so the lie becomes the truth.
Another way to interpret this is that the White House is creating legal authority for their actions after the fact. This creates massive uncertainty rather than relying on clearly established legal basis for their actions. Tens of thousands of employees were laid off based on a legal fiction, and now agencies are trying to find their personal emails to contact them to bring them back. When they come back, they are then placed on administrative leave (in violation of Judge Alsup’s order to reinstate them), presumably until the Trump administration can find another way to fire them. This is utterly chaotic mismanagement of federal employees by an administration that is trying to do more than the law allows, and is indifferent about the damage it is imposing on public services.
This is a significant centralization of personnel authority
In the past Presidents have centralized policymaking authority in the White House, especially OMB, but largely left personnel authority with agencies.
The organizational logic for giving agency authority is pretty straightforward: agency heads, rather than the personnel agency knows better about their own employees, their performance, and how they match with agency needs. The new memo upends this tradition.
Nick Bednar, who has been offering excellent in-depth legal analysis of Trump’s personnel actions at Lawfare, says:
Overall, it greatly centralizes powers OPM has traditionally left to the agencies and makes OPM a clearinghouse for all final appointments to the civil service.
It gives OPM, which will have no direct insight or knowledge about organizational goals or needs, the final arbiter over who works at the agency. Specifically, if the agency and OPM disagrees about keeping a probationary employee, OPM gets the final say.
This runs contrary to the basic precept that agency leaders and staff should be empowered to manage their organizations. As it is, such leaders are already incredibly constrained by rules. Now there is one more: they do not even get the final say on whether the employees they hired (and OPM is already involved in approving hires) will be allowed to stay at the agency. It is as if the HR department in an organization makes the operational decisions. But in this administration, the President is obsessed with controlling personnel, and so he is not operating under a managerial logic but from the prism of political ideology and control.
DOGE as an increasingly powerful dark network
In Trump’s first term, there was an effort to eliminate OPM. Now it is being handed unprecedented personnel powers. A previous Executive Order also expanded OPM powers in reclassifying career officials to be political appointee status. The broader picture is that an agency that Trump felt was useless in his first term has now become his enforcer-in-chief when it comes to gutting and politicizing federal agencies.
Why the new confidence in OPM? OPM is, effectively, a subsidiary of DOGE now. DOGE employees, when they meet resistance, have not been shy about threatening federal employees or contractors. Some who have resisted were placed on administrative leave or fired. The new EO means that DOGE employees have even more leverage in their interactions with agencies.
We are watching DOGE become both the most important unit in government, but also one that claims to have limited legal power. It is amassing these powers through a series of techniques and legal fictions.
Amy Gleason, the nominal head of DOGE, told judges that it has no organizational chart. This ambiguity makes it harder to track how DOGE operates, though it is plain to anyone that Musk, and not Gleason, is running DOGE.
DOGE employees work for multiple agencies at the same time. They use their agency status to claim that agencies, and not DOGE, are making the changes, but their loyalty is not to the agency, but to Musk.
DOGE-occupied agencies, like OPM or the General Service Administration, are handed new authorities which they use aggressively.
DOGE is engaged in an unprecedented project of data capture across agencies, and now with another federal executive order, seeks to capture state data.
We have struggled to characterize DOGE because there has never been anything that looked quite like it before. It is not just an organization that is operating under the framework of what used to be the US Digital Service, though it is that. As an organizational form, DOGE is better described as a network, with members across government, and inside and outside of government. It operates around a single charismatic figure—Musk, not Trump—through a series of loyalties and other ties. Connections are sometimes formal, sometimes not.
We can do more in understanding DOGE as a network. The research on networks classifies them in terms of brightness and darkness. Jörg Raab and Brint Milward describe bright networks are “a legal and overt governance form that is supposed to create benefits for the participating actors and to advance the common good and does not—at least intentionally—harm people.” Does DOGE fit that definition? I don’t think so, because of its indifference to legality, concepts of the common good, and harms.
There are also dark networks, which are better characterized by illegality, covert behavior, selfish interests that rest upon harms upon others. Certainly DOGE does not fit the worst examples of dark networks, which are criminal or terrorist endeavors. But I think DOGE is at the very least a grey network, given its deliberate ambiguity about legal status, membership, activities and negative impacts. Given Musk’s extraordinary conflicts of interests, which extends to many network members, it is unclear how much DOGE’s goals serve a public or private interest. Treating DOGE as a dark network may make it more legible to understand and study.
Broadened criteria for removal and bans from federal employment
One of the sticking points in the court cases reviewing the removal of probationary employees is that they were told it was due to performance issues. This was nonsense, since the new administration had no opportunity to assess their performance, and in most cases where performance records existed they did not justify removal. Judge Alsup noted: “It is sad, a sad day. Our government would fire some good employee, and say it was based on performance. When they know good and well, that's a lie."
The New memo does not specify performance, but merely “post-appointment conduct”—which could be anything. According to Bednar:
That phrase is vague, but I read it to mean that OPM can consider the actions of the employee during their probationary period. I suspect the administration will take a broad view of this.
In other words, it gives OPM license to remove the employee for almost any reason. This makes it much harder for employees to contest their removal, or for Judges to overturn them. It also make it easier for OPM to put in place unofficial loyalty tests as the real basis for removal. Imagine OPM employees responding to efforts by Trump-aligned organizations to identify the political preferences of employees, or even leading those investigations themselves. Will a social media post supporting DEI be enough to see someone removed for bad conduct? The net effect would be to vastly expand the chilling effect we are seeing course through American society to anyone who wants to work with the federal government.
And it does not end there. Bednar also points out:
Another important aspect here is that OPM can debar individuals determined to be "unsuitable" from seeking federal employment in the future. See 5 C.F.R. 731.204. The initial period of debarment is limited to 3 years under the current regulations. I haven't looked if that 3-year bar is statutory or rule-based. If it's only rule-based, there are significant concerns that OPM could length the period (or even make it permanent).
In other words, OPM could not just remove agency employees. It could also bar them from federal employment for a considerable period of time. My understanding is that the current memo does not extent to career civil servants but one reason to worry is that OPM federal code allows the President to prescribe regulations “for the conduct of employees in the executive branch” more broadly, which would cover non-probationary employees. There is that word “conduct” again. So its hard to know if the memo is just a response to the Trump administration’s current legal problems with probationary employees, or part of a longer strategy to their ultimate goal, which is to remove civil service protections created by Congress by administrative fiat.
As clear as mud, but helpful.