"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
The failure of Garland to remove an obvious, unqualified political hack — neither Immigration Court nor judicial experience — from his job at an agency clearly failing in its mission to provide anything approaching due process and fundamental fairness to migrants clearly has come to the attention of honest civil servants at EOIR who have struggled to keep the flames of justice alive over the past few years. And, as Chairman Durbin’s letter points out, this is by no means the only example of “hackism” and contempt for basic competence in civil service at Justice.
The problems were well known and well-documented long before Garland was sworn in. Not dealing with them swiftly, competently, and decisively is failed leadership on restoring due process, competence, and independence in the most obviously broken and dysfunctional part of the U.S. Justice System — the Immigration Courts.
Judge Garland’s failure to “step up” for justice @ Justice is literally killing American Justice!
Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.
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Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along to get along with fascism, is wrong. Duh!
It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.”
But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.”But, that doesn’t mean that the rest of us can’t demand some accountability for participation inwhat are essentially “crimes against humanity.”
Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.
It’s also why the the Biden-Harris team that takes over at DOJ must:
immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity;
replace them with qualified individuals from the NDPA; and
be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies.
American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations).
The career Civil Service overall, and particularly complicit and often ethics-free government lawyers,failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.
⚖️🗽🧑🏽⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴☠️👎🏻!
PWS
12-21-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
The Outrageous Decision to Decertify the IJ’s Union
Our attention is understandably focused elsewhere right now. However, it must be mentioned that on the eve of Election Day, a panel decision of the Federal Labor Relations Authority decertified the National Association of Immigration Judges (NAIJ) as a union. While this might seem to be a minor issue at the moment, it is not. At stake is the integrity of the nation’s Immigration Courts and the life-changing decisions its judges make.
The NAIJ was formed in 1971, and was certified as the recognized collective bargaining representative of Immigration Judges in 1979, 41 years ago. It weathered a similar decertification effort in 2000. Then as now, the agency argued that Immigration Judges are managers, and thus ineligible to unionize. Under federal labor law, one is classified as a manager if their position “influences policy.” 20 years ago, both the initial decision of the Regional Director and the appeal to the FLRA resoundingly dismissed that notion. In its September 2000 decision, the FLRA agreed with the finding below that IJs are not involved in creating agency policy. The FLRA then noted that “unlike decisions of the Board of Immigration Appeals, the decisions of Immigration Judges are not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review. The RD accordingly concluded that the decisions of the Judges do not influence and determine the Agency’s immigration policy, in contrast to the decisions of the Board.”
In two decades, the only change to the above is that while the IJ’s findings of law remain subject to de novoreview, their findings of fact are now reviewed for clear error. Of course, facts are entirely case-specific, and thus have no influence whatsoever on policy. So as before, rather than create or influence policy, IJs implement established policy. Yet EOIR once again sought decertification. At the hearing in January, EOIR stipulated that the judges’ duties and responsibilities had not changed since the prior decision. As reported in an article covering the hearing, EOIR’s Director, James McHenry, testified that Immigration Judges are not supervisors, adding that they “are at the bottom of the org chart so they don’t supervise anything,” and further noted that “they cannot hire or fire anyone.” Nevertheless, he argued that because an Immigration Judge’s decision becomes a final ruling binding the agency if not appealed, Immigration Judges influence policy.
The Regional Director dismissed the claim based on the above arguments and testimony. But there was always a sense that the administration had something up its sleeve. That “something” turned out to be two Trump appointees, FLRA Chairperson Colleen Duffy Kiko, and FLRA Member James T. Abbott. They have jointly issued a series of decisions overturning decades of precedent to erode the rights of federal employees’ unions, a result clearly favored by the administration that appointed them. The two stayed true to form in decertifying the NAIJ. The FLRA’s lone Democratic appointee, Ernest DuBester, issued a scathing opinion in the NAIJ’s case, which concluded with the following language:
This is the antithesis of reasoned decision making. Based upon the conclusory nature of the majority’s analysis, along with the facetious manner in which it reconciles its decision with Authority precedent precluding collateral attacks on unit certifications, it is abundantly clear that the majority’s sole objective is to divest the IJs of their statutory rights. Once again, I refuse to join a decision “so fundamentally adverse to the principles and purposes of our Statute.”
By deciding in this matter, the decision violates the FLRA’s own rules regarding when such reversals of past holdings are allowed. Moreover, not that it matters to Chairperson Kiko and Member Abbott, but if allowed to stand, their decision ignoring the NAIJ’s 41 years as a certified union and reversing its own precedent without any reasoned basis will accomplish the following damage.
First, Immigration Judges would lose their voice, collective bargaining rights, ability to be individually defended by their union representative, and their ability to push back against the relentless attack on their independence, neutrality, and ability to fulfill their proper function as a check against executive branch overreach. Second, NAIJ officers have remained the only Immigration Judges able to allow the public to peek behind the scenes at these tribunals, by speaking at law schools and conferences (with the exception of management level judges who may be permitted to state the party line, sometimes by reading it from index cards). As several leading scholars explained in an article in Slate: “Judges and asylum officers are being instructed to decide cases in ways that many contend are contrary to law. A virtual gag rule has been placed on them in the context of law schools and the broader public. This denies information to coming generations of lawyers and eliminates public discourse on some of the most critical civil rights issues of our time.”
But of great importance is a point I raised last year in an article I wrote forLaw360 on the decertification effort: the administration’s citing to a recent decision of the Supreme Court in the case of Lucia v. SEC:
while irrelevant to the management inquiry, the citing of Lucia points to another motive of the DOJ. In a leaked internal memo, the Justice Department indicated its interpretation of the decision as a basis to bypass the Merit System Protection Board, allowing the Administration to more easily terminate ALJs whose decisions don’t align with its political views. Such actions would constitute a troubling attempt by the executive branch to influence case outcomes. Similarly, decertifying the NAIJ would simplify the removal of IJs whose decisions are at odds with the administration’s stated immigration goals by eliminating the present collective bargaining agreement’s right to an independent arbitrator in matters concerning IJ discipline and termination.
Just prior to the FLRA’s decision, an executive order creating a schedule of career federal employees who can be more easily fired for purely political reasons (such as issuing decisions not in line with the administration’s views). By ruling that IJs influence agency policy (contrary to its prior decision), the FLRA has put the Immigration Judges squarely in the crosshairs of the new executive order. To be clear: Immigration Judges whose neutral and independent application of the law would lead them to issue decisions the administration doesn’t like would be subject to easy termination. And of course, having just lost their union, those judges will have lost their best means of challenging such termination. Then, the hiring of their replacements would become even more nakedly partisan.
While it seems as I write this there will be a new administration come January, that doesn’t render this issue irrelevant. First, the earlier decertification effort in 2000 occurred under a Democratic administration. Second, leaving the above ruling in place would allow it be used as a weapon in the ways described by any subsequent administration. Whatever one’s political leanings or views on immigration, we should all be able to agree that decisions of such importance should be rendered by fair, neutral judges by applying law to facts, protected from rank political pressures.
The creation of an Article I Immigration Court is ultimately the most durable way to guarantee the independence of these vital tribunals, but the evisceration or protections caused by allowing this decision to stand is too egregious to ignore even in the short term. It is therefore hoped that readers will amplify the news of the decision and all it means. It is hoped those with the capacity to do so will provide amicus or other legal support for further actions by the NAIJ to legally challenge the FLRA decision. And the decision must be brought to the attention of an incoming Biden administration, which has so much damage to correct
There also needs to be consequences for those who abandoned their obligation of fairness and neutrality under the present administration. FLRA Member DuBester is to be applauded for continuing to strongly voice his defense of justice in the dissent. But perhaps a Biden administration can assess whether Kiko and Abbott might be better suited for other work.
Copyright 2020 Jeffrey S. Chase. All rights reserved. reprinted with permission.
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Thanks for speaking out so forcefully and articulately, my friend,
I am confident that the Biden-Harris Administration will correct this egregious miscarriage of justice. As “Good Government” folks, I’m also confident that they they will constructively address the disgraceful dysfunctional mess at EOIR that threatens to topple the American justice system. We will finally have “problem solvers” leading our Government! That will make a positive difference for all Americans.
DOJ memo offered to buy out immigration board members
The buyouts were only offered to Board of Immigration Appeals members hired before Trump took office
The Justice Department memo came from the director of the Executive Office of Immigration Review, a Justice Department agency. (Bill Clark/CQ Roll Call file photo)
The Justice Department offered buyouts to pre-Trump administration career members on its influential immigration appeals board as part of an ongoing effort to restructure the immigration court system with new hires who may be likely to render decisions restricting asylum.
An internal memo viewed by CQ Roll Call shows that James McHenry, the director of the Executive Office of Immigration Review, offered financial incentives to longtime members of the Board of Immigration Appeals to encourage them to retire or resign. The buyouts and “voluntary separation incentive payments” were offered to “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets,” according to the April 17 memo.
EOIR is the Justice Department agency that oversees the Board of Immigration Appeals, a 23-member body that reviews appealed decisions by immigration judges and sets precedent.
According to two knowledgeable sources at EOIR who declined to be identified for fear of retaliation, the memo was sent to the nine board members appointed under previous Republican and Democratic administrations, before Trump took office. No one accepted the buyout offers, according to both sources.
CQ Roll Call reached out for comment on the memo to McHenry, EOIR and the Justice Department and received a statement Wednesday saying that “the Department does not comment on personnel matters.”
“Any insinuation that politicized hiring has become ramped up is inconsistent with the facts,” the statement said.
The memo sheds light on an ongoing debate over BIA hiring. Immigration judges, lawyers and former EOIR employees say the Trump administration has used the board to help meet its goal of reducing immigration, while government officials say they have simply streamlined a lengthy hiring process that was always subject to political judgments.
In October, CQ Roll Call reported on documents showing the Justice Department had tweaked the hiring process to fill six new vacancies on the board with immigration judges with high asylum denial rates and a track record of complaints. Additional memos that CQ Roll Call wrote about earlier this month shed further light on these rule changes that enabled fast-tracking of those and more recent hires.
The three most recent hires to the board include an immigration judge who denied 96 percent of the asylum requests before him and had a history of formal complaints about “bias and prejudice.” The vacancies were created after a flurry of career board members left the BIA.
“EOIR does not select board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” the Justice Department said in its statement. “All board members are selected through an open, competitive, merit-based process that begins with a public advertisement on the Office of Personnel Management’s (OPM) federal employment website.”
Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said.
While buyouts are typically offered to soften the blow of workforce reductions, the two sources at EOIR said the agency’s offers were made so that the BIA could be reconfigured entirely, with the positions of “board members” replaced by those of “appellate immigration judges.” The differences go beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests.
“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” according to the Justice Department statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”
The American Immigration Lawyers Association and other critics said the buyout offer is the latest example in a series of moves that have undermined the neutrality of the immigration court system. They point out that BIA is already housed under a law enforcement agency, the Justice Department, whose leadership may have a stake in the outcome of the court process.
“The administration is trying to further politicize the immigration court system by packing the appellate bench and is seeking to make room for more handpicked judges with this buyout,” Benjamin Johnson, AILA’s executive director, told CQ Roll Call.
“These latest actions reveal the severe impact of our nation’s immigration system being housed under the Attorney General and only underscore the real need to create an independent immigration court,” he said.
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The refusal of the “holdovers” to take the “buyout” just forced the DOJ politicos to use a different “strategy:” creating additional “appellate judgeships” and “packing” them with appointees with established records of hostility to asylum seekers and the due process rights of respondents.
This presents an interesting historical comparison with an earlier GOP Administration’s program for promoting an anti-immigrant agenda at the BIA. Under Bush II, Ashcroft arbitrarily “cut” the size of the BIA to get rid of the vocal minority of judges who dared to speak up (usually in dissent) for the rights of asylum seekers and other migrants to due process, fundamental fairness, and humane treatment. I was one of those judges “exiled” from the BIA during the “Ashcroft Purge of ‘03.”
Fortunately, I got a “soft landing” just down the hill from the “EOIR Tower” at the Arlington Immigration Court where I remained on the bench and (mostly) “below the radar screen” for the following 13 years. And, yes, I was offered a “buyout” in the form of “early retirement,” which would have been a rather bad financial deal for me at the time.So, I rejected it, and eventually got a much better “deal.”
The DOJ’s claim that the current farce is a “merit selection system” is beyond preposterous. But, as long as Congress and the Article IIIs won’t stand up to Trump’s blatant abuses of due process, the “de-professionalization” of the career Civil Service, and the dehumanization of the “other” before the law (“Dred Scottificfation”), the charade will continue.
Of course the problem isn’t, as EOIR would lead you to believe, that some “trial judges” are elevated to the appellate bench. It’s which “trial judges” are being “rewarded” for their records of hostility to asylum seekers, respondents, and their attorneys.
Also, in what has become essentially a “closed system” of Immigration Judges, staffed almost exclusively by government attorneys overwhelmingly with prosecutorial backgrounds, the “elevation” of existing trial judges, basically tilts the system heavily in favor of DHS and against respondents. Indeed, some fine Immigration Judges with broader experience including private practice, who would have made superior Appellate Immigration Judges in a true merit-based system, were instead forced off the bench by the demeaning, biased, restrictionist policies implemented at EOIR.
Also, having served as both a trial and appellate judge, I know that the “skill sets” are related, but by no means identical. Not all good trial judges make good appellate judges and vice versa. While it’s certainly to be expected that some trial judges will be elevated to the appellate bench, that should not be the sole source of appellate judges.
Appellate judging requires scholarship, collegiality, creativity, writing, and a broad perspective that many talented private advocates, academics, and NGO lawyers possess in abundance. The same holds true of the Article III Appellate Bench. From the Supremes on down, it’s basically in various degrees of failure to uphold the rule of law and the Constitution against the attacks by the Trump regime.
It’s a case of far too many former District Court Judges, former prosecutors, and right-wing “think tankers,” and far too few individuals who have litigation, legal, and life experience gained from representing those who actually come before the courts. The Supremes in particular are badly in need of folks with a broader, more practical, more humane perspective on the law.
The institutional failure of today’s Supremes in the face of concerted Executive tyranny threatens to collapse our entire justice system and take our democratic republic down with it. The whole Article III judicial selection system needs careful reexamination and reforms lest it fall into the same type of institutional dysfunction and disrepute as today’s Immigration “Courts” (which aren’t “courts” at all in any normal sense of the word).
Of course, Trump, Barr, and the rest of their anti-democracy gang would love to make the captive, biased, Executive-controlled Immigration “Courts” the “model” for the Article III Judiciary. And, John Roberts and the rest of the “JR Five” seem all too eager to accommodate them. The perception already is out here that Roberts & Co. “work for” Trump Solicitor General Noel Francisco in somewhat the same way as Immigration “Judges” work for Billy Barr. Until Roberts and his gang show the courage to stand up to Trump and enforce the legal, constitutional, and human rights of “the other” in our society, that perception will only deepen.
As generations of African-Americans discovered following the end of Reconstruction, Constitutional and legal rights are meaningless in the face of biased and cowardly legislators, judges, and other public officials who simply look the other way, join the abuses, or “go along to get along” with treating “the other” unfairly under the law.
Due Process Forever, Captive & Complicit Courts, Never!
Washington, DC – According to the Roll Call story published May 27, 2020, Executive Office for Immigration Review (EOIR) Director McHenry sent the remaining members of the Board of Immigration Appeals (BIA) a buy-out memo offering them financial compensation in exchange for early retirement or resignation. This memo was sent on April 17, 2020, during the global public health crisis, and highlights the continuing push by this administration to manipulate the functions of the BIA, the appeals court located within EOIR.
AILA Executive Director Benjamin Johnson stated, “This administration has taken numerous steps to alter the composition and role of the BIA, all in an effort to gain more control over the immigration courts and influence court decisions. In recent months, it came to light that the EOIR Director was attempting to pack the immigration bench with more appointees who have among the lowest asylum grant rates in the country. Now, he is attempting to winnow existing members from the BIA and replace them with a roster of Appellate Immigration Judges, despite congressional and stakeholder concerns about politicization of the BIA. Last year, these new appellate judge positions were created out of thin air. They appear to have nearly identical job functions as the BIA members but the Appellate Immigration Judges can adjudicate both trial and appellate level cases at the same time and can be reassigned away from the BIA at the whim of the EOIR Director.”
“This effort shows a complete disregard, or at the very least a failure to appreciate how our judicial system is supposed to work to provide a fair day in court. In 2003, Attorney General Ashcroft purged several members of the BIA, a political move that was severely criticized and ultimately undermined the credibility of our court system. These recent efforts by this administration make it even clearer that our nation urgently needs an immigration court system that is independent, fair and impartial.”
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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
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The BIA is a travesty, to be sure. But, an even bigger travesty is the continued “deference” given to a biased, unqualified, non-expert tribunal and its political handlers by the Article III Courts! Under Marbury v. Madison, it’s the job of the Article III Courts to say what the law is. To “defer” to the BIA, a body that currently functions not like a independent, expert tribunal, but has become a “shill” for DHS Enforcement and an adjunct of White Nationalist White House Policy Advisor Stephen Miller, is a disgraceful case of judicial task avoidance and dereliction of duty.
If nothing else, the ongoing disaster at the BIA points to an “inconvenient truth” in America’s justice system: We need better, more informed (particularly in the areas of immigrants’ rights and human rights), more courageous judges at all levels of the Federal Judiciary if we are to survive as a democratic republic where the rule of law and equal justice under law have meaning!
Federal employees will soon be called back to work, government buildings will reopen and services will resume—at least for the next three weeks—after President Trump and lawmakers struck a deal Friday to end the partial government shutdown.
But the logistics of getting the government and approximately 380,000 furloughed federal workers fully up and running again won’t be so simple.
The Office of Management and Budget director is expected to issue an official memo to all agencies telling them to take the appropriate steps to reopen the government. It’s unclear how long that process will take, after more than a month of disruptions to services across nine different federal agencies.
The Office of Personnel Management has asked workers to watch the news and report to work on the next scheduled working day as soon as they see that new funding legislation is enacted.
Many of those workers have been away from office computers and work phones for more than a month, and will return to expired passwords and a backlog of work.
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Read Kate’s complete article at the link.
When you work for a large corporation with a malicious moron for a CEO and a “Board of Directors” (a/k/a GOP) composed mainly of sycophants and grifters, “bad things will happen.”
For destroying American Government for no reason at all, Trump, his GOP “fellow travelers,” along with his “tone-deaf” grifter cronies like Commerce Sec. Wilbur Ross get the “Courtside Five Clown Award.” 🤡🤡🤡🤡🤡
A federal judge late Friday dealt a victory to federal employees and the unions that represent them, invalidating overnight key provisions of a series of Trump administration executive orders aimed at making it easier to fire employees and weaken the unions.
The overnight ruling by U.S. District Judge Ketanji Brown Jackson in Washington was a setback to the White House’s efforts to rein in the power of federal unions. Though federal employees’ pay is set by Congress, their unions have retained significant power even as private-sector unions have been in decline.
The three executive orders, issued just before Memorial Day, had sought to severely restrict the use of “official time” — on-duty time that union officials can spend representing their members in grievances and on other issues. The rules also limited issues that could be bargained over in union negotiations. And it rolled back the rights of workers deemed to be poor performers to appeal disciplinary action against them.
Jackson took issue with key elements of each order and enjoined the administration from enacting them.
The White House did not immediately respond to a request for comment Saturday.
The American Federation of Government Employees, the largest of the dozen unions to sue the administration over the executive orders, applauded the ruling. It called it a victory for public-sector unions and the protections Congress gave federal employees in 1978 when it guaranteed civil servants the right to bargain collectively over working conditions in the government.
“President Trump’s illegal action was a direct assault on the legal rights and protections that Congress specifically guaranteed to the public-sector employees across this country who keep our federal government running every single day,” AFGE’s national president, J. David Cox Sr., said in a statement.
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Lawless actions directed at its perceived “enemies” under the guise of some bogus legal theory are a staple of the Trump/Sessions regime. As the ever disingenuous Sessions has proved recently, every time a Federal Judge quite properly calls him out for his lawless acts, he whines about interference with Executive authority and his authority as the chief legal official of the US. Here’s a guy that apparently got through law school and admitted to the bar without knowing or understanding what Chief Justice Marshall said and meant in probably the single most famous case in US history: Marbury v. Madison. No, Gonzo, you don’t get the final say on what the law is — that only appears to happen in the never-never land of the Immigration Courts!
The NAIJ, representing our nation’s Immigration Judges (I am a retired member), continues to fight not only for the civil service rights of the judges but for the fair and impartial judicial independence that benefits everyone in America. All of these have been under constant attack by Jeff Sessions and the Trump Administration.
President Trump issued three executive orders Friday aimed at overhauling the federal bureaucracy by making it easier to fire poor performers, sharply curtailing the amount of time federal employees can be paid for union work and directing agencies to negotiate tougher union contracts.
The orders could result in the biggest changes in a generation to civil service protections long enjoyed by federal workers.
White House officials said the goal of the executive orders is to make the workforce of two million federal employees more efficient and responsive to the public and to improve morale.
In a briefing with reporters, Andrew Bremberg, the White House’s director of the domestic policy, said that a survey of federal employees has found that many do not believe their agencies adequately address poor performers.
“These executive orders make it easier for agencies to remove poor performing employees and ensure that taxpayer dollars are more efficiently used,” he said.
One of the executive orders, which allows employees accused of misconduct to be fired more easily, expands on legislation that Congress passed last year to bring more accountability at the Department of Veterans Affairs.
“President Trump is attempting to silence the voice of veterans, law enforcement officers, and other frontline federal workers through a series of executive orders intended to strip federal employees of their decades-old right to representation at the worksite,” the American Federation of Government Employees, the largest federal employee union, said in a statement.
Joe Davidson contributed to this report.
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An honest, apolitical, expert career Civil Service has been the main difference between America and many of the dictatorships, one-party states, and failed states from which we once distinguished ourselves. Once destroyed, it won’t easily be rebuilt. That could well spell the end of America as an economic superpower and world leader.
Can the “Trump Kakistocracy” and his co-opted “Party of GOP Grifters” be stopped before it’s too late? Only time will tell. But, the clock is ticking!
“President Trump continued his efforts to drive the United States back to the 19th century during his State of the Union address last week.
Standing in front of a divided Congress, with possible obstruction charges looming over him and facing governance struggles produced by his ineffective leadership, the president sought to undermine a 135-year-old law protecting federal civil servants from the whims of tyrants and hacks. “I call on the Congress to empower every Cabinet secretary with the authority to reward good workers — and to remove federal employees who undermine the public trust or fail the American people,” he said.
While this plea sounds sensible, it actually represents a historic threat to the U.S. government and to some of its most vulnerable citizens. Recognizing that threat requires understanding two crucial and related pieces of context — first, how the law Trump seeks to dissolve came into being, and second, how the effort to undermine it fits into a larger pattern of racist ideas driving the Trump administration’s actions.
Why can’t a Cabinet secretary simply fire federal employees? Before 1883, they did just that on a regular basis. Federal employees came and went on the orders of political appointees with each electoral cycle. Every four years, federal workers sat waiting with bags packed to find out if their party would hold on to power and they onto their livelihoods.
Claiming these spoils of victory enabled a president and his Cabinet secretaries to hand out high-paying, desirable jobs to political supporters. Abraham Lincoln famously — or infamously — cleaned house in 1861 to reward his new political party whose members had not tasted federal salaries since the collapse of the Whig party a decade earlier.
But in the 1870s, consistency and competence in the federal bureaucracy became more important as the nation’s political and commercial life grew more complex. Americans became increasingly aware of political corruption (see: the Grant administration) and its drag on government and commercial efficiency. When, in July 1881, President James A. Garfield was assassinated by disgruntled office seeker Charles Guiteau, the push for reform gained enough momentum to force Congress to rein in the patronage system.
The Pendleton Civil Service Reform Act of 1883 cost its namesake, Sen. George H. Pendleton (Ohio), his job in a political backlash against the new anti-spoils system. Nevertheless, the Pendleton Act was a major step forward for good government, and over the next quarter-century the majority of ordinary and largely essential civil service positions became disconnected from political machinations, filled instead through a standard set of hiring practices and exams, and protected from arbitrary firing.
The system was never perfect, and political affiliation has continued to matter for employment prospects in Washington right up through the present. Still, today the U.S. government does have something resembling what political scientists call an “autonomous” civil service — that is, a federal bureaucracy sheltered from political winds.
The result is a more stable and experienced government workforce, a Congress that gets accurate reports from its research bureaus and federal departments that provide a certain level of regulatory consistency for citizens and businesses at home and around the world.
Trump’s upending of decades of civil service protections is not about accountability. Such changes would clearly risk a return to more corrupt and less competent government. Even worse, Trump’s proposal and the rhetoric surrounding it also threaten to undermine a second set of crucial reforms that occurred thanks to the civil rights movement.
During the 1960s, the civil rights movement pushed the government to guarantee racial equality in federal employment. This effort was more successful than attempts to transform the private workforce, largely because of federal training programs, standardized hiring procedures and fixed pay scales that weeded out bias, aggressive anti-discrimination measures and historic mentorship and seniority lines dating to the Johnson administration. Today, African Americans are 30 percent more likely to work in civil service than white Americans. Black men and women, just 13 percent of the U.S. population and with an unemployment rate double that of white Americans, make up about 18 percent of the federal workforce.
Over the past 30 years, conservative valorization of “market solutions” has been accompanied by deeply racialized notions of government inefficiency that aims to undermine these civil rights achievements by invoking the image of a wasteful, corrupt public workforce — one viewed by many Americans as dominated by African Americans. Commentator Pat Buchanan, for example, claimed that federal offices under the Obama administration operated according to a “racial spoils system.” For Buchanan and many others, the drive for a leaner government merges with a racist suspicion of black workers — what they see as the most rotten part of the bureaucracy.
Moreover, the president’s attack on the stability of government jobs comes at a rough time for public servants, who have been battered by austerity measures that have made jobs scarcer.
These measures have also deepened the racial disparity in the public workforce, which, along with the growing racial wealth gap that deprives nonwhite Americans of stability and mobility, transforms Trump’s assault on the Pendleton Act from merely historically ignorant and potentially corrupt into something more. It becomes a nod to the same racist worldview that produces the profound suspicion of people of color that has defined much of Trump’s political life.
Continuous conflation of blackness and wastefulness in American governance, a conflation pushed by writers and politicians like Buchanan and Trump, marks African Americans as incapable of earning “the public’s trust” through good governance, a stain that persists into today’s politics, from assumptions of black voting malfeasance to questions about President Barack Obama’s birth certificate.
And that returns us to Trump’s rise to the presidency. Calls for government accountability have long merged racism and anti-government rhetoric but have traditionally stopped short of resurrecting the spoils system. Then again, politicians have traditionally veiled their positions in generous and moderately realistic visions of humanity to maintain moral ground and the capacity to govern. In his latest call for the gutting of civil service reforms, Trump seems hellbent on surrendering both.
As I have mentioned several times before, my more than four decades of working in the field of immigration, and my 21 years of judging individual asylum cases have given me an outstanding chance to study virtually all of the current political and government systems in the world.
The difference between the U.S. and the corrupt states that send us refugees is not necessarily the words of our Constitution. Almost all countries have snazzy sounding constitutions that aren’t worth the paper on which they are written.
The main difference is that the U.S. has a basically honest, dedicated, professional, largely apolitical Career Civil Service that works hard to make sure that the words of our Constitution are translated into actions. Most refugee sending countries have a Trump-like “spoils system” where notwithstanding the words of the constitution and laws, the government is corrupt and run primarily for the benefit of the dictator and his relatives and friends or for the ruling class and their cronies.
When the government changes (usually, although not always, violently) the “new” group, even if it once had a “reform platform,” merely views it as “their turn” to loot and pillage the country and the common people for their own benefit and that of their supporters, be it tribe, ethnic group, or party.
The Trump Administration and the “modern GOP” already have all of the earmarks of a kleptocracy. Letting them destroy our Career Civil Service, the “Jewel in the Crown” of American democracy, would lead to the end of our nation as we have known it.
“President Trump leaned heavily on the stories of American heroes in his State of the Union address Tuesday night because he didn’t have much else to say. From the Coast Guard, the fire departments, the shop floor and many other quarters they came, providing structural support for a flabby speech that was one of the least adventurous and forward-looking efforts of its kind. Without the heroes, there would hardly have been any speech at all.
And while Trump opened his speech by calling on Americans “to set aside our differences, to seek out common ground,” he kept coming back to the most divisive themes of his presidency — from “chain migration” and highlighting the role of immigrants in criminality to his calls for all to stand for the flag. Trump did not so much ask his domestic adversaries to set aside their differences as to abandon their own views. Nothing in this speech will inspire his critics with new hope that Trump is serious about negotiating anything.
Trump bragged, of course, about his tax cuts, the economy, the stock market and slashing regulations. At moments, he even sounded as though he believed in activist government, calling on the country to “invest in job training,” “open great vocational schools” and to support “paid family leave.” But there were no specifics, no sense of how budgets, strained by the very tax cuts he extolled, would actually support these objectives. Words without concrete programs are words without deeds.
Similarly, he asked Congress “to produce a bill that generates at least $1.5 trillion for the new infrastructure investment our country so desperately needs.” Notice the squirrely wording — “that generates.” He didn’t say that the plan his administration has been working on would put up only $200 billion of that big number and rely either on state and local governments or private investors to provide the rest.
And as Paul Waldman noted on The Post’s Plum Line blog, the focus on private investment would “naturally privilege projects that can generate a profit for private companies, which probably won’t be the most sorely needed upgrades.” The Trump plan would do little for the hurting parts of the country that supported Trump in 2016. Again, words without deeds.
There was one passage that did suggest a real change that Trump would seek, and it was an alarming idea.
“All Americans deserve accountability and respect. And that’s what we are giving to our wonderful heroes our veterans,” Trump said. “So tonight, I call on Congress to empower every Cabinet secretary with the authority to reward good workers and to remove federal employees who undermine the public trust or fail the American people.”
This sounded like an attack on the entire civil service system. It sounded like a demand by Trump that he and those who work for him have the right to fire federal employees whenever he or they feel like it. Perhaps this idea will come with safeguards, perhaps not. Trump didn’t say.
And the alarm this idea inspired among all who are not sold on Trump reflected the fundamental failure of the address. Trump rose before Congress in the shadow of an investigation into Russian collusion in our elections that he and his allies in Congress are doing all in their power to attack, discredit and obstruct.
This call to broaden Trump’s right to fire brought to mind what the president did to then-FBI Director James B. Comey and might do to special counsel Robert S. Mueller III. Nothing in this speech transformed the public conversation in a way that lessened the burden of scandal. Nothing suggested any change in Trump’s behavior that might lead him to govern less divisively.
Yes, we cheered the heroes. They remind us of what is good in our country. Alas, their selflessness stands in stark contrast to our politics in the Trump era.”
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Will America really be able to withstand three more years of this incompetent and immoral man occupying (without truly filling) the highest office in our country? Will our public institutions really be able to withstand continuing attacks by spectacularly unqualified cabinet members and a GOP that feels more kinship to Putin’s Russia than it does to the majority of Americans? Will whatever emerges from this national nightmare and mockery of the “American Dream” be something that only White Nationalists and oligarchs will recognize?
Oh yeah, the Federal Civil Service and some courageous and dedicated Civil Servants are the only things holding our Federal Government together right now! Once that’s transformed into a haven for incompetent political hacks (see Trump’s White House staff & Cabinet appointments) the descent into the abyss will be rapid and, perhaps, irreversible.
Stay tuned!
In addition to the “Trump blather,” there was some “real news” coming from Washington last night. After years of drama, the Washington Redskins will part ways with QB Kirk Cousins. They signed a 4-year, $71 million deal with Alex Smith (lately of the KC Chiefs). Smith, a 13-yr. vet and 3-time Pro Bowler, was the NFL’s top-rated QB last year.
I always liked Kirk at MSU (except when he was beating my Badgers) and Washington. He’ll be a spectacular addition to any team, and I wish him well (except when he plays the Packers or Washington)! I hope he gets a ton of money and some better pass protection, receivers, and defense than he had with Washington.
“The budget proposal President Trump plans to unveil Tuesday would give to federal employees with one hand, while taking away with five others.
It calls for a 1.9 percent pay raise in January for civilian workers and a 2.1 percent hike for the military.
But in real terms, the civilian increase would be less than it looks if proposed hits on retirement benefits are adopted. Trump’s fiscal 2018 budget would:
Increase Federal Employee Retirement System (FERS) contributions from workers by 1 percentage point each year until they equal the government’s contribution. This would take five to six years and would result in increased out-of-pocket payments of about 6 percent over that period. Out-of-pocket payments by federal law enforcement officers would increase by the same amount, but would not equal the greater contributions from law enforcement agencies.
Base future retirement benefits on the average of the high five years of salary instead of the current high three
Eliminate cost of living adjustments (COLA) for current and future FERS employees
Cut the COLA for Civil Service Retirement System (CSRS) employees by 0.5 percent from what the formula would allowed
Eliminate supplement payments for FERS employees who retire beginning in 2018. The supplement approximates the value of Social Security benefits for those who retire before age 62.
FERS, which covers employees first hired after 1986, and CSRS have different requirements. Those covered by CSRS, for example, do not receive Social Security benefits.
Senior Office of Management and Budget officials, who declined to be identified because the budget has not been released, said that the increase in retirement contributions would not apply under CSRS because the employer and employee shares under that system already are equal.
Similarly, they said that eliminating the FERS retirement inflation adjustment while only reducing it for those retired under CSRS takes into account that FERS retirees receive Social Security, which is fully inflation-adjusted, as part of their benefits.
The retirement changes supposedly would take effect with the fiscal year that begins in October. Since the federal budget rarely is finished by that deadline, any measure including them likely would set a different effective date.
Most of these proposals have been in the Republican playbook for years. With that party now in control of the White House and Congress, chances increase that some or all of them will become law, even as the probability is low that Trump’s entire budget will be enacted as proposed.
The thought of Trump’s assault on federal retirement programs becoming law enrages federal employee leaders.”
