‘Schedule F’ Would Be Bad—Even for Trump

Here’s one of the best kept secrets of the federal government:  nothing gets done without effective civil servants.  I learned this secret firsthand in the three years I just spent at the National Highway Traffic Safety Administration (NHTSA), first as Chief Counsel, then as Acting Administrator. Political appointees, as I was, help set an agency’s agenda, but we can’t carry it out without the expertise, talent, professionalism, and dedication of career employees.  That is true regardless of which party is in power.  It’s true across agencies.

This secret of the federal government is why I’m so baffled by Project 2025’s proposal to give the President the power (through something called “Schedule F”) to convert as many as 50,000 jobs in the federal government from career positions to political ones.  The goal is to replace the most senior and influential senior federal staff with short term political loyalists. In fact, Trump has said he wants to “mak[e] every executive branch employee fireable by the president of the United States.”  (See my UCLA Law colleague Evan George’s account of Schedule F’s potential effect on EPA here.)

Firing the most senior and experienced federal employees from the government will undermine, not strengthen, the effectiveness of a presidential administration. This is true even for an administration as anti-regulatory as the Trump Administration was: remember the Executive Order requiring that for every new regulation adopted two had to be withdrawn?  He’s now pledging he’d require the repeal of ten for every new one adopted.

But regulations don’t just disappear and can’t just be withdrawn with the stroke of a pen. Rulemaking includes repealing a regulation.  And repealing regulations is often accompanied by a weaker, replacement regulation. To do so, agencies have to follow extensive processes and procedures, including notice and comment, under the Administrative Procedure Act. They also have to comply with the substantive law they’re subject to and with Executive Orders like EO 12866, which requires an extensive cost benefit analysis for regulatory actions that have a significant economic impact.  Compliance with laws and executive orders, even when repealing a regulation, requires significant and complex staff work.

And who do you think does the significant and complex work required either to adopt or repeal regulations?  Talented career staff with the expertise and experience necessary to do so, led by the senior employees Project 2025 envisions firing.

Take the Corporate Average Fuel Economy (CAFE) rules that NHTSA issues and that Project 2025 – and Trump – want to withdraw and replace.  Doing so would be a repeat of what the Trump Administration did with CAFE and greenhouse gas standards the Obama Administration issued.  The Obama rules were issued jointly by NHTSA and EPA under two separate statutes.

I led the teams that developed two sets of CAFE standards for cars and light trucks, for Model Years 2024-2026 and Model Years 2027-2031.   We issued the 2024-2026 rule to replace a rule the Trump Administration issued known as SAFE II.  In close coordination with NHTSA, EPA issued separate rules to cover Model Years 2023-2026 and 2027-32 (the agencies operate under different statutes, the Energy Policy and Conservation Act and the Clean Air Act and for the most recent rulemaking, we issued separate rules rather than joint rules in part because of the different statutory requirements each agency must comply with). The CAFE rules and the EPA rules are both on the chopping block of Project 2025 – and Trump.

Here’s what I can tell you about my experience working on the CAFE rules: the career team does the vast majority of the very complex work required to issue those rules.  The team includes engineers with expertise in automotive technology that can improve fuel economy and who understand the intricacies of every carmaker who must comply with fuel economy standards. Take a look at the 700-page Technical Support Document that supports the 2024-2026 rulemaking just to get a sense for the sophistication required.  The team includes economists who put together the very sophisticated cost-benefit analysis that runs close to 2000 pages with appendices.  And NHTSA has deeply experienced and smart lawyers who not only understand the statute that directs the agency in adopting CAFE standards and the process that has to accompany that adoption. The lawyers—career lawyers—also understand the interaction of the law, the standards being proposed and the extensive modeling that projects how automakers can comply with the standards, what effects the standards will have on the industry and on safety, jobs, and the environment.   The lawyers use all that expertise, knowledge and skill to draft the rule itself and the underlying regulations that will implement the rule.

I cannot imagine how any political appointees could successfully repeal and replace the CAFE rules without the leadership and expertise of the senior career employees who lead the fuel economy team.  In fact, when the Trump Administration proposed repealing the Obama-era joint CAFE and greenhouse gas rules, they shut out the career employees at EPA with expertise in the greenhouse gas part of the rule and with extensive expertise over many years in setting pollution standards for cars.   The NHTSA team was left to do all the work on their own, with far fewer resources and expertise than they’d had in drafting the Obama rules.  The result was disastrous, as Robinson Mayer so ably reported in the Atlantic. The proposed rule was so riddled with errors that it took until March of 2020, more than three years into the presidential term,  for the Trump Administration to get a final rule out.

Here’s another reality of the civil service: deeply ingrained in the ethos of high-level civil servants is that they serve the party in power and work to help political appointees carry out their mission (as long as doing so is legal).  They are not partisan hacks. To the contrary. In my time at NHTSA, I knew the political leanings of very few career staff.  I heard almost no war stories about the previous administration’s political appointees. Instead, I worked with senior career staff who viewed their jobs as helping leadership carry out their agenda, no matter who was in the White House and whether or not they privately agreed or disagreed with that agenda.

I should also make clear that, even though career employees are committed to helping political leaders carry out their goals and policies, and even though they do not readily share their own political beliefs, they do not behave like sheep in the process.  On more than one occasion, career employees let me know if they thought a policy idea was unworkable or unwise or inconsistent with the law.  I wanted them to communicate with candor and to share their opinions and expertise.  I took their advice into account in making important policy decisions and followed it frequently.  But they shared their opinions not for political or ideological reasons but because they wanted me to be as effective as possible and because they were doing their jobs.

Project 2025’s promise to get rid of the deep state could backfire spectacularly if it were actually implemented.  As someone deeply committed to environmental policies that give us a fighting chance against climate change, and help clean our air, water, and land, I take some comfort in thinking that if actually implemented, Schedule F could wreak havoc for an administration hellbent on undermining environmental protection (and so many other policies I support).  But senior career leaders in the federal government shouldn’t face the possibility of losing their jobs over a misguided and misinformed understanding of how government actually works.  Many of them are among the most dedicated, professional, and talented people I worked with.  They don’t deserve Schedule F.