The 1939 Hatch Act prohibits government employees from using their position to engage in partisan activity, and prohibits their membership in any organization that advocates the overthrow of the United States. At the dawn of the Cold War, President Harry Truman used the latter provision to authorize investigations of government employees concerning their loyalty to their country, and also the administration of oaths declaring such loyalty.
The Truman loyalty program, which spread to the states and to private organizations, led to the firing of many people who were either innocent of disloyalty or who had previously belonged to communist or communist-affiliated organizations (as had many intellectuals during the Great Depression) but refused to endanger others by naming them to the authorities. The program was a catastrophe for civil liberties. Still, the stated goal, however ghastly its application, was defensible: Federal employees were expected to be loyal to the United States and not to its Cold War adversary, the Soviet Union.
Now loyalty oaths are back; the Trump White House is imposing them on already-beleaguered civil servants. Only this time Trump is violating the Hatch Act by demanding that they be partisan, and by requiring that employees be loyal not to the United States but to Donald Trump. The 47th president has achieved the impossible. He’s making Truman’s loyalty program look good.
To apply for a civil service job, you click onto this website. The Office of Management and Budget, for example, is looking for an economist. (It could use one!) The job pays in the range of $120,579 to $156,755, and an undergraduate degree in economics or its rough equivalent appears to be a minimal requirement. Your education must be at an accrediting institution recognized by the Education Department, which as of Wednesday looks like a problem for a Columbia PhD, and may soon be a problem for a Harvard PhD.
Our prospective OMB economist has to fill out this questionnaire. The questions are fairly anodyne and have to do with reasonable-sounding job requirements. Are you able to analyze “economic resource allocations, structure, and the behavior of specific sectors”? Do you have experience presenting research and analysis to senior officials? Are you competent to review congressional testimony to be given by your boss?
According to a May 29 memo by the White House Office of Personnel Management, this questionnaire will soon be expanded to include a loyalty test. Our prospective OMB economist will have to answer some variation on the following question: “How would you help advance the President’s Executive Orders and policy priorities in this role? Identify one or two relevant Executive Orders or policy initiatives that are significant to you, and explain how you would help implement them if hired.”
It is conceivable that this might be an appropriate question to pose to a political appointee. Trump already makes applicants to political positions grovel in all sorts of humiliating ways. “What part of President Trump’s campaign message is most appealing to you and why?” When was your “MAGA revelation”? The purpose is to privilege cultish loyalty over basic competence, and on the evidence the screeners have done a splendid job. But civil servants are not supposed to be screened based on political loyalty.
Even under normal presidents, an executive order is a set of directions to an agency chief, not to rank-and-file civil servants. The agency chief directs civil servants to convert these directions into a proposed rule. The proposal is then put out for public comment to find out whether the rule (and perhaps the executive order requiring it) is faulty. The rule is then finalized, acquiring the force of law. Only then is a civil servant required to follow it.
As I say, that’s how it works under a normal president. Under the aberration that is Donald Trump, executive orders often have no role other than to express Trump’s crotchets, partisan or otherwise. When they call for action, they often violate existing law and/or the Constitution (to which federal hires must also pledge loyalty).
One executive order instructed the attorney general not to enforce, for 75 days, a congressionally-enacted ban on TikTok. The delay was later renewed twice, and will likely be renewed again this month, even though the Supreme Court upheld the TikTok ban. Civil servants aren’t supposed to choose between upholding executive-branch policies and upholding Supreme Court decisions. OPM wants to make this choice explicit.
Another executive order commanded government agencies not to issue documents recognizing the citizenship of children born in the United States to noncitizens, even though the Constitution states that such children are “natural born citizens.” Rather surprisingly, the Supreme Court agreed to hear arguments about this. If, as expected, it rules against Trump, civil servants will once again be compelled to choose between Trump and the Supreme Court, which amounts to choosing between Trump and the Constitution.
That’s just executive orders. How would our prospective OMB economist support Trump’s plans to annex Greenland, or make Canada the 51st state, or rename the Gulf of Mexico? How would this person help Trump reorder cryptocurrency regulations to maximize the Trump family’s participation in this exciting if dubious new financial industry? How would our OMB applicant support his president’s conclusion that Taylor Swift is no longer “HOT”?
I’m going to have a real problem getting this OMB job. I went to Harvard, I didn’t major in Economics, I’ve never reviewed anybody’s congressional testimony except to criticize it in print, I oppose the Trump executive orders described above and plenty more, and I hadn’t noticed Taylor Swift ever stopped being HOT. It’s probably better that I don’t work for OMB, not only for me (Russell Vought would be my boss!) but also for America. Also, I like the job I have now. So I can’t say it’s any kind of tragedy that the new requirements screen me out.
But it’s easy to imagine plenty of people who would be ideal for this job but who can’t stomach pledging loyalty to the most corrupt president in United States history. It is correspondingly hard to imagine anybody willing to take the required oath who would be even minimally competent. The Hatch Act was passed to prevent such abuses; so were the Pendleton Civil Service Act and the Civil Service Reform Act of 1978 (both ignored by the Trump’s “Schedule F” initiative). Harry Truman subjected the civil service to considerable stress when he imposed his loyalty program. Lives were ruined. But the fallout from Trump’s loyalty program will probably be worse.
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