If it’s not enough that Elon Musk’s DOGE has been taking a chainsaw to the federal labor force, about three weeks ago, the Trump administration announced that it is going to begin implementing “Schedule F,” the creepy huxleyan name for the Executive Order they produced at the end of the first term to make it easier to fire civil service employees deemed disloyal. President Biden threw it in the trash, but, as expected, it’s back. After all, it’s part of Project 2025 architect Russell Vought’s tools of the trade, and now that he’s back at the Office of Management and Budget he’s been itching to use it.
Vought believes that we are in a “post-constitutional” time which explains a lot about how the administration is going about its work through the courts.
It’s estimated that 50,000 people will be subject to the law once they are re-classified from civil service protections to “at will” policy employees. It’s pretty obvious that a witch hunt for personnel that any rando MAGA appointee suspects of being a turncoat (or just a Democrat) will soon be fired. The whole idea was to fill the jobs with the kind of people Russell Vought thinks have America’s best interests at heart. That means white, Christian nationalists.
The Washington Post reported on this back in 2024, in anticipation of his expected influence in a Donald Trump second term:
Vought also embraces Christian nationalism, a hard-right movement that seeks to infuse Christianity into all aspects of society, including government. He penned a 2021 Newsweek essay that disputed allegations of bias and asked, “Is There Anything Actually Wrong With ‘Christian Nationalism?’”
…
Looking at immigration through that lens, Vought has called for“mass deportation” of illegal immigrants and a “Christian immigration ethic” that would strictly limit the types of people allowed entry into the United States.
Essentially Vought takes the same position as Trump adviser Stephen Miller but he comes at it from a Christian nationalist perspective. All roads lead to persecution of immigrants in the Trump administration.
Vought believes that we are in a “post-constitutional” time which explains a lot about how the administration is going about its work through the courts. In a piece he wrote back in 2023, Vought laid out his critique of what the MAGA types refer to as the “deep state” insisting that a federal government staffed with experts and bureaucrats had taken over the government and usurped the will of the people. It’s a bit confusing since he seems to also think that “the Left” has been degrading the Constitution for over a hundred years and that the Congress needs to have more power — but maybe not so much. In any case he concludes with this rousing cri de guerre:
But the long, difficult road ahead of returning to our beloved Constitution starts with being honest with ourselves. It starts by recognizing that we are living in a post-Constitutional time. Our need is not just to win congressional majorities that blame the other side or fill seats on court benches to meddle at the margins. It is to cast ourselves as dissidents of the current regime and to put on our shoulders the full weight of envisioning, articulating, and defending what a Radical Constitutionalism requires in the late hour that our country finds itself in, and then to do it. That and only that will be how American statesmanship can be defined in the years ahead.
A big part of Vought’s strategy, as with Miller’s, was to legally challenge the prevailing meaning of precedents, rulings and words themselves.
I was reminded of all this when I read this piece by Josh Marshall at Talking Points Memo about the coming implementation of Schedule F. As he rightly points out, “it’s absurd to think that Congress would create the Civil Service system in such a way that a President could simply reclassify people and suddenly the whole system of protections would disappear.” Why would they even have bothered to do it at all?
Marshall observes that such actions as Schedule F (or DOGE or the use of the Alien Enemies Act) rests on “the assumption (quite possibly right) that the federal judiciary would dispense with the plain meaning of the relevant federal workforce laws and substitute novel definitions of key phrases put forward by Trump administration lawyers.” I don’t think there’s any doubt that this is their intention. But Vought, at least two years ago, understood that it might not be that easy.
In that essay about radical constitutionalism, Vought wrote at length about immigration and how it should be understood as an “invasion,” which he believed should empower border governors to apprehend migrants and deport them according to Article 1, Section 10, Clause 3 of the Constitution. (It does no such thing.) Vought complained:
My point in bringing this up is that you would be surprised at how hard it has been to get conservative lawyers to see this for no other reason than its novelty. That is what has to change. This is where we need to be radical in discarding or rethinking the legal paradigms that have confined our ability to return to the original Constitution.
It doesn’t seem to be taking, at least not in the way Vought hoped. Ian Millhiser of Vox attended a Federalist Society gathering and found the conservative legal community “far more ambivalent about their president’s second term than one might expect after such a fruitful partnership.”
“They are going to have the same level of success they had in the last administration” with getting rid of long-standing rules and regulations, George Washington University law professor Richard Pierce told the conference, “which is virtually none.”
Implicit in this critique is a belief that the web of procedural barriers, bureaucratic trap doors, and paperwork burdens that prevent any presidential administration from changing too much, too fast will survive the second Trump administration more or less unscathed. Pierce predicted that many of Trump’s deregulatory efforts would simply be struck down in court.
Millhiser says that some of this can be attributed to a turf war — the conservative legal community is not happy with the cavalier treatment of the judiciary by the Trump people. Evidently, they are feeling a bit stroppy about all this unitary executive business now that it’s being wielded by an elderly con man and a car manufacturer with a chainsaw.
So far, most judges have been similarly unwilling to go along with Russ Vought and Stephen Miller’s mad schemes. But late Tuesday night a district judge in Western Pennsylvania did give them some succor. She held that the Alien Enemies Act had originally applied to pirates and robbers so it does apply to foreign gang members. (She did say they have to be given a hearing within 21 days so at least there’s no grant to just shoot them as one imagines would have been allowed in one of those 18th century pirate invasions.)
The case is headed to the Supreme Court where we will almost assuredly see at least two, probably three, of the justices uphold this cockamamie definition. And there are many more cases coming based upon Vought’s “radical constitutionalism” which rely on the Supreme Court throwing out the plain meaning of the English language and adopting MAGA extremists’ definition of the constitution. I wish I could say with confidence that they won’t. Perhaps we just have to hope that Millhiser’s observation that the conservative legal fraternity isn’t happy about Trump and company treading on their turf will get us out of this mess. For now anyway.
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