If you think firing poorly performing federal employees is too hard, you are not alone. Most federal employees agree. Now President Biden has made this problem worse. New regulations will make dismissals of poor-performing and subversive employees even more difficult. The rule reinforces removal restrictions and prohibits the reclassification of federal bureaucrats. This broad regulatory change was built specifically to block the reinstatement of Trump-era reforms. The deep state will soon become even less accountable.
The federal employee dismissal process is broken. Agencies take six months to a year to remove poor performers, followed by lengthy appeals that often result in reinstatement with back pay. If the employee wins, agencies must typically cover their attorney fees — at rates of $400 to $1,000 per hour. This makes removing employees for even the worst offenses expensive and uncertain.
For example, the Department of Justice suspended two prosecutors who withheld exculpatory evidence from a U.S. senator’s defense team. The federal judge overseeing the case said he had “never seen such mishandling or misconduct.” Nonetheless, the prosecutors appealed and got the suspensions overturned on a technicality. The government restored two months of back wages and paid out $643,000 in attorney fees.
This dysfunction is all too common. Removing problematic employees is difficult in every federal agency. Just one-half of 1 percent of tenured federal employees were fired in 2023 for poor performance or misconduct.
Surveys show that federal employees themselves object to this system. Half report chronic poor performance in their unit, and most don’t believe their agency effectively addresses poor performers. Fewer than half of federal career supervisors feel confident they could dismiss an employee for serious misconduct. Just a quarter believe they could remove a poor performer. Federal employees recognize the system is broken.
Unfortunately, this dysfunction empowers bad actors, and it is not uncommon for career employees to inject partisanship into their official duties.
Such partisanship was particularly evident during the Trump administration. The press widely reported on career employees opposing the president’s policies; some even boasted about their “resistance.” Many career bureaucrats acted as though they — not elected officials or presidential appointees — should set policy. Most Americans recognize unelected bureaucrats have too much control over federal policy. The “deep state” is real, and it is a serious challenge to our democracy.
President Trump addressed these problems with an executive order creating “Schedule F” for career officials in policy-influencing jobs. The order made them at-will employees, just like most private sector workers, without removal restrictions. Schedule F gave agencies the ability to effectively and quickly address poor performance or misconduct. At the same time, the order continued protections against politically motivated or discriminatory removals.
Schedule F was designed with successful state-level reforms in mind. Many states have made most or all state employees at-will employees. These reforms have generally shown positive results without the feared abuses materializing.
Texas and Florida — two of America’s three most populous states — have embraced at-will employment. Their state governments operate quite well. Schedule F would have expanded these successes nationally. The government can operate effectively if it has the will to do so.
Despite Schedule F’s potential, President Biden revoked it shortly after taking office. His administration has now issued a new rule designed to prevent a future administration from bringing back Schedule F. The new regulations reinforce career employee removal restrictions and prohibit reclassifying career employees into an at-will status. Federal bureaucrats who inject partisanship into their duties will remain hard to dismiss. So will chronic poor performers.
The Biden administration’s rule cements major flaws in the federal workforce. The rule protects poor performers and bureaucratic resistance. It seems designed to ensure the deep state will remain unaccountable to the president — and the American people.
Even government employees recognize the federal dismissal process is broken. President Biden’s new rule will make it even harder to fix. That is not good for America or democracy.
Jacob Sagert is a policy analyst in the America First Policy Institute’s Center for American Freedom. James Sherk is the director of the Center for American Freedom at the America First Policy Institute. He previously served as a Special Assistant to the President in the Domestic Policy Council at the White House during the Donald J. Trump administration.
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