Sorting fact from fiction on mass firings, relocations, and return-to-office policies
Don Moynihan at Can We Still Govern?:
Elon Musk’s and Vivek Ramaswamy’s proposal for changing government has, thus far, been disheartening. They want to change things, but it is hard to take the whole enterprise seriously when you have to spend a lot of time sorting through their mixture of vagueness, misstatements, and hyperbole. Doing so made made me realize: I don’t think Muskawamy themselves actually know what they are doing.
Like Trump, they don’t know much about government, except as businessmen. Like Trump, they are serial bullshitters, who do not seem to value basic public service tasks and, for Musk in particular, given to conspiracy theories. And there is the rub. They will make big promises without knowing if they can fulfill them, and wild claims without knowing if they are true. But the point is to hold our attention, to convey the message that the government is broken, and to justify radical actions, even if the consequences of those actions are unknown, or, clearly damaging to state capacity. One thing is clear: for all the “government should work like a business” rhetoric, private organizations are typically not led by people who oppose the mission of the organization, make sweeping reorganizations that are not informed by basic operational facts, or make a habit of denigrating their employees. This is because that sort of toxic leadership would get you fired. But this is the sort of vibe that Musk and Ramaswamy are bringing to the table. Previously, I broke down some of their claims about federal spending. Now, lets look at what they have been saying about the federal personnel system, and sort out fact and fiction.
They Can’t Fire Lots of Employees, But Can Encourage the Best Ones to Leave
One problem with Muskawamy is that they can’t give a straight answer about what they will do and how they plan to do it. It will be amazing, and historic, but lets not get into the details. “It’s going to be very easy,” said Elon Musk’s Mom, who is apparently sitting in on her big boy’s meetings. Their claims will work for a MAGA audience, or for people who do not understand how government works, but start to vaporize when forced to engage with reality. And soon they will actually be in power, so reality will start to matter.
Lets take the example of firing employees. As a presidential candidate, and until relatively recently, Ramaswamy claimed that the president could fire 75% of federal civilian employees. Ramaswamy uses the trick of citing an old and obscure law, claiming that it enables radical actions, and hope that no-one checks up on the details. In this case, he refers to the Reorganization Act of 1977. But, the Reorganization Act was about reorganizations of federal agency structure, not layoffs. The Act also requires the President to go to Congress to get permission to pursue his actions. Also, the Act has expired. And in 1983 the Supreme Court found its mechanisms of operating to be unconstitutional!
In short then, Ramaswamy claims that an expired and unconstitutional piece of legislation from the Carter era gives Trump a power unmentioned in the legislation. This also applies to the claim that the President can unilaterally eliminate agencies. Again, reorganization authority has expired, so the President does not have this power. Only Congress can create or eliminate an agency or Department.
Notably, in his Wall Street Journal op-ed with Musk (which was presumably written by someone from a Trump-aligned think tank like Heritage or America First Policy Institute), Ramaswamy is no longer talking about the Reorganization Act. At this point, it is no longer feasible to pretend this gimmick is real. That does not mean that his other promises are realistic, just that they reflect more sophistication. Instead, Muskawamy rely on Section 3301 of Title V, Code of Federal Regulations, to promise “large-scale firings.” That section gives the President power to “prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service.” I am emphasizing the “into” because the section is clearly about hiring, not firing. (See more from Nicholas Bednar on this point).
Jennifer Nou, an administrative law professor at the University of Chicago told me it is “likely illegal” that the President can pursue mass firings based on this Section 3301, with the uncertainty of the “likely” reflecting less the plain text of the law than how far certain Judges will allow Trump to go. She also points out that adverse action policymaking is limited to the Office of Personnel Management, and would require a new rule that has to follow the timing and evidence of the Administrative Procedure Act, a constraint that Muskawamy explicitly reject. Even if such mass firings were feasible, they are bad personnel policy. Jennifer Pahlka points out that Part 351 of Title V means that reductions in force must first eliminate specific term and temporary positions, those under various special authorities, plus those in the first three years of service, before reaching career employees, and then prioritizing non-veterans first.1 This means younger employees, and employees with specific skills like digital expertise, will be the first to go.
[...] Muskawamy promise to make cuts that “use existing laws to give [employees] incentives for early retirement and to make voluntary severance payments to facilitate a graceful exit.” This, they can do. The Clinton administration did so in the 1990s to reduce the number of employees. The criticism of this approach is a) it will never generate the numbers that Muskawamy are claiming need to go, b) the people most likely to leave are those who are at retirement age, or feel confident that they can land a job in the labor market. In other words, this is not a good tool for sorting good from bad employees, and is most likely to be used by people with the most marketable skills, while keeping in place employees who doubt that they can land a job in the private sector.
[...]
Return-to-Office Policies
Muskawamy also have promised to compel federal employees to return to the office five days a week. If you think this is about performance, it doesn’t make a lot of sense that Muskawamy both want a) to move more jobs out of DC, and b) want all DC employees in the office five days a week. In fact, they are pretty up front that the purpose of return to work policies is not to improve government efficiency, but that it “would result in a wave of voluntary terminations that we welcome.” Here are some basic things about return-to-office that Muskawamy would benefit from understanding.
People differ on the value of remote work and telework. But it is certainly not clear that in-person work is better. Private companies that have adopted return-to-office policies have seen slower growth.
Telework can be a useful tool to attract a broader pool of employees. This is especially likely to be true if your headquarters is in an expensive region like DC. Federal managers I have spoken with consistently say that telework and remote work (where an employee is hired with no expectation of an in-office work) allows them to access a much broader pool of talent then they could otherwise find.
The idea that telework is some public sector perk while the real America is toiling at their offices is false. Private sector companies use remote work at about the same rate as public organizations.
Most federal work is in-person. About 54% of federal employees work fully on-site, and the remainder can use telework. If you exclude remote workers, which is about 10% of federal employees, almost 80% of regular hours work occur in-person, and 61% of work for those who are telework eligible.
The suitability of telework depends on the task. For TSA staff or Veterans Health doctors, telework does not make sense. And guess what? Those sort of jobs are mostly not offered telework options! About 94% of work occurs in person in Veterans Affairs, and about 85% of work at Homeland Security. By contrast, the rate for the National Science Foundation is about 42%, which mirrors university-style work environments that they are similar to. (Anyone who actually cares about this sort of detail, and agency justifications for their use work of telework can find more information here).
Forcing employees back to the office will have to contend with labor agreements that provide telework options. Social Security is one of a number of agencies that have rushed telework options in collective bargaining agreements. If you are genuinely interested in improving public services, there are other more productive fights to pick with public sector unions.
Since the federal government is a vast employer with lots of different jobs and needs, it is entirely possible to build policies around remote work that are nuanced and will improve services. A one-size-fit-all approach is dumb, and the use of punitive return-to-office policies to drive people out is going to hurt state capacity. And guess what? The federal government largely has the former type of policy, delegating authority to agencies, requiring them to justify the use of telework vs. in-person with an emphasis on pushing them toward at least half of work to be in-person. Muskawamy want the dumb one-size-fits-all policy.
Don Moynihan wrote a solid Substack piece on how the federal government under Trump/Musk/Ramaswamy’s axis of evil would become a toxic employer by encouraging a brain drain exodus of qualified employees out of the federal government.
