The Lawfare Podcast · The Lawfare Institute

Lawfare Archive: Nick Bednar on Trump's Civil Service Executive Orders

February 22, 2026·1 hr 6 min·5 clips

Schedule F could turn over 100,000 federal workers into at-will employees, stripping their job protections.

This Lawfare Archive episode, introduced by intern Marissa Wong, features a January 28, 2025 conversation between Alan Rosenstein and law professor Nick Bednar about President Trump's civil service executive orders. Bednar begins with historical context: the president has broad authority over federal personnel policy under the Civil Service Reform Act of 1978 and earlier legislation. Typical transition actions include forcing high-level political appointees to resign, hiring freezes, and workforce reduction orders. What makes this administration's actions different is the scope and depth of politicization reaching into the career civil service. The central topic is Schedule F, reintroduced from the end of the first Trump administration under the new name Schedule Policy Career. Schedule F exempts positions deemed to be of a 'confidential, policy-determining, policy-making, or policy-advocating character' from competitive hiring requirements. More significantly, this same phrase appears in statutes governing due process protections for firing and prohibited personnel actions, meaning Schedule F employees lose both hiring protections and termination safeguards. The definition of who qualifies is extremely broad. The executive order includes anyone who views or circulates policy documents. When the Office of Management and Budget classified its own employees during the first Trump administration, the list included executive assistants, IT professionals, economists, and toxicologists. Bednar estimates the true reach could exceed 100,000 employees, far beyond the administration's stated figure of 50,000. Bednar identifies three legal vulnerabilities. First, the interpretation of 'policymaking employee' extends far beyond its traditional legislative meaning of non-career political appointees. Second, the Biden administration issued OPM regulations adopting the narrow traditional definition and guaranteeing that involuntarily reclassified employees retain their due process protections. Trump's executive order declares these regulations 'inoperative and without effect,' but repealing them requires notice-and-comment rulemaking under the Administrative Procedure Act. Third, the post-Loper Bright landscape means agencies no longer receive Chevron deference for novel interpretations, making broad readings more vulnerable to judicial challenge. The conversation then turns to DOGE (Department of Government Efficiency), which Bednar explains was created by renaming Obama's U.S. Digital Service rather than establishing a new federal advisory committee, thereby avoiding FACA's transparency and viewpoint-balancing requirements. While the renamed agency's stated mission includes technology modernization, the broader executive orders reveal DOGE's actual focus is personnel policy, requiring every agency to create hiring plans and appoint four-person DOGE working groups. Bednar also covers the return-to-office mandate, noting that only about half of federal employees are even telework-eligible, and the White House's claim that only 6% work in office is not supported by data. He flags potential violations of collective bargaining agreements negotiated during the Biden administration. On DEI, agencies were instructed to immediately dismiss employees in diversity offices, with many placed on leave pending termination. The episode addresses the irony that the conservative Supreme Court's Loper Bright decision, which eliminated Chevron deference, now makes it harder for the executive branch to defend expansive interpretations like Schedule F. Bednar notes this creates tension with the unitary executive theory the administration is simultaneously advancing.

As heard by us

A procedural look at Trump’s effort to reshape the federal workforce.

Lawfare treats Trump’s second-term civil-service order as a useful lens on how executive power runs into federal personnel rules and the Administrative Procedure Act.

Read the full review in PlayNext →

Why you'd press play

Trump's second-term federal workforce order gets the procedural treatment, focused on the APA and the Biden-era rules.

Read the full recommendation in PlayNext →

Listen to the show on

Apple Podcasts Spotify

Play clips from this episode More from The Lawfare Podcast