Executive Order 14210: Implementing the President's "Department of Government Efficiency" Workforce Optimization Initiative
President Trump may soon learn that not all federal employees serve at his pleasure.
By Jordan Waldmann
Background
The Trump Administration has made it their core mission to decrease the size of the federal workforce. President Trump began this mission on his first day in office by implementing a hiring freeze and requiring the Office of Management and Budget (OBM) to “submit a plan to reduce the size of the Federal Government’s workforce through efficiency improvements and attrition.”
On February 11, President Trump issued Executive Order 14210 (“Order”), which aims to implement an overhaul of the federal workforce. The Order states that its purpose is to “eliminate waste, bloat, and insularity” thereby creating “a critical transformation of the Federal Bureaucracy.” Agencies have since fired thousands of probationary employees.
On February 26, the Office of Personnel Management (OPM) responded to the Order by issuing guidance directing agencies to initiate preparation for reductions in force (RIFs) in accordance with applicable regulations. This guidance follows OPM’s January 20 memorandum in which it informed agencies to compile lists of probationary employees. This memorandum, while not a direct result of this Order, is intertwined with the firing of federal workers.
Executive Order 14210
There are several directives in the Order. First, the Order instructs the Director of the OBM to design a “Plan” aimed at reducing the federal workforce. Specifically, the plan must include a provision that an agency may employ at most one individual for every four employees who leave the agency. The Order also instructs Agency Heads to work with DOGE Team Leads in the agencies to develop hiring plans that concentrate hirings “in highest-need areas.” It also empowers each agency’s DOGE Team Lead to decide which agency vacancies should be left unfilled (although the Agency Head can choose at his discretion to fill the position) and requires monthly hiring reports to DOGE.
The Order also instructs the Director of OPM to initiate rulemaking—or an agency’s process for creating new laws—with the purpose of amending existing suitability regulations. Suitability regulations are used by OPM and other authorized agencies for fitness determinations. The Order requires that OPM add new suitability criteria, including criteria that relate to compliance with legal obligations, citizenship requirements, nondisclosure obligations, and theft or misuse of Government property.
Notably, the Order also demands that Agency Heads “separate from Federal service temporary employees and reemployed annuitants working in areas that will likely be subject to the RIFs” and prepare for mass reductions in force (RIFs), which are essentially layoffs in the federal government. The Order specifies which offices will be first on the chopping block (i.e., those offices which do not align with President Trump’s policy initiatives, like DEI offices, and which perform functions not mandated by law). These broad mandates are qualified by the exclusion of employees who perform public safety, immigration enforcement, or law enforcement functions.
Legal Basis
Federal employees fall into three broad categories—career appointments, career-conditional (probationary) appointments, and temporary appointments. For our purposes, it is necessary to understand the distinction between career appointments and probationary appointments. Career appointments are permanent federal employees. A probationary appointment is essentially a stepping stone to a career appointment. After hiring, the employee is under a 1-year probationary period during which the agency determines if the employee is fit for service, and if he is not, the agency can terminate his employment.
The federal government is fairly limited in its options to remove civil servants from office. Generally, federal law provides that civil servants may be removed for cause or as part of a RIF, which involves eliminating the position entirely. In conducting RIFs, the government must comply with existing OPM regulations.
Once removed for cause, career appointments can appeal the adverse employment decision to the Merit Systems Protection Board (MSPB). However, probationary employees largely do not have this appeal option.
Unlike for cause removal, RIFs allow the federal government to remove employees from their positions for reasons unassociated with their individual performances. With great power, though, comes great responsibility—in the form of OPM regulations. OPM provides that agencies can initiate RIFs for certain reasons: “lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee’s position die [sic] to erosion of duties.” OPM also requires agencies to conform with procedural requirements, like determining employees’ retention standings, establishing competitive areas, establishing competitive levels, and issuing notices to released employees. Each of these (and other) requirements have intricacies that agencies must comply with in conducting RIFs. Notably, when the RIF impacts a significant number of employees, the agency must provide notice to applicable states. Moreover, all employees are entitled to appeal to the MSPB for RIF-related furloughs, separations, and demotions. Suffice it to say, it is not a simple “You’re Fired” situation.
State of the Order
So far, two lawsuits have been brought against this Order. The first lawsuit, brought by a labor union that represents federal employees in the District of Columbia District Court, argues that the Trump Administration is violating separation of powers principles and that agency heads are violating the Administrative Procedure Act (APA). However, the court has refused to issue a temporary restraining order (TRO), which would stall implementation of the Order, holding that it does not have jurisdiction to hear the case. That’s because the statute protecting federal employees requires that they exhaust administrative remedies before pursuing court action. Specifically, the court asserts that these claims must be brought before the Federal Labor Relations Authority pursuant to federal law governing employee–government relations and union rights.
State Attorneys General (AGs) have brought the second lawsuit against agencies and agency heads in the District of Maryland. The plaintiffs allege that following the issuance of the Order, “Defendants began mass unlawful terminations of their probationary employees” instead of developing appropriate RIF plans. Plaintiffs also allege that two days after the Order was issued, OPM officials directed agency heads to begin firing probationary employees.
The AGs argue that defendants have violated the APA and claim a “non-statutory right of action to enjoin and declare unlawful official action that is ultra vires.” The latter claim arises from the defendant's alleged violations of statutorily- and regulation-mandated RIF procedures. The district court has granted a temporary restraining order and has stayed the terminations of the probationary employees, resulting in the rehiring of over 24,000 workers.
Will It Stand?
To decide whether these executive actions are legal, we must look at both President Trump’s power in ordering mass terminations of federal employees and the agency conduct in enforcing that power.
The question of presidential power is the more complex question. Article II of the Constitution vests the Executive power in the president. It goes on to say that the president “shall take Care that the Laws be faithfully executed.” This, in part, has led some scholars to support the unitary executive theory, which provides that the president has complete authority over the executive branch. However, the laws that the president must ensure are faithfully executed are laws passed by Congress, pursuant to the Article I grant of legislative power to the bicameral body. These laws include creating agencies and appropriating money to them.
It is likely too early to predict whether courts will accept an approach closer to the unitary executive theory and hold that President Trump has the power to effectively ravage federal agencies. Considering the Order prioritizes the removal of positions not mandated by statute, it is entirely possible that the President will argue he is not bypassing any Congressional directive. Whether this is true in practice, though, is yet to be seen and will likely require a detailed analysis of each statute that establishes and appropriates funds to agencies.
The question of agency conduct, though, seems more straightforward. Agencies claim to have terminated the probationary employees for insufficient performance. At least in some cases, though, this is contrary to prior positive feedback received by employees. Instead, the AGs in the pending case allege that these are actually RIFs in disguise and that the “performance” reasoning is pretextual. This is an especially compelling argument, considering the rapidity with which these terminations occurred.
If a court agrees that the reasoning is indeed pretextual, then it would be incredibly easy to show that the agencies did not comply with the applicable RIF regulations. That would make the probationary employee firings unlawful. It is important to note, though, that this would not stop federal agencies from firing workers. Instead, these agencies would need to go through the proper procedures for terminating federal employees. These procedures, though, would at least provide employees (and states) a chance to prepare for this unemployment. However, if the court fully adopts the unitary executive theory, this could raise new questions about the constitutionality of statutes, like the RIF provisions, limiting the president’s power to restructure the executive branch. This issue, though, would likely take time to be resolved (and the statute would stay in place), as there would need to be a legal challenge to the statute itself, assuming the merits do not address that issue directly.
Links for further reading:
For a discussion of the executive power debate: https://www.aei.org/op-eds/a-rule-of-thumb-for-the-executive-power-debates/
For a discussion of the unitary executive theory and its relevance here: https://www.americanactionforum.org/insight/does-president-trump-have-authority-to-fire-federal-workers/
For a discussion of RIF procedures: https://www.lawfaremedia.org/article/a-primer-on-reductions-in-force