I know there is no deep state. You know there is no deep state. However, as with most objective truths, Trump apparently knows the exact opposite of the truth, and has said that “unelected deep state operatives who defy the voters to push their own secret agendas are truly a threat to democracy itself.” Trump has also said that he believes most Federal workers are Democrats, presumably like those Democrats whom he has also called treasonous, un-American and sadly lacking love for their country.
Add to that the reports that hundreds of federal workers, who are now working without pay, have begun calling in sick, and the Federal shutdown may go on for months or longer, along with reports that Trump wants to view the shutdown as a strike. A powerful word, strike. Striking Federal employees can be lawfully terminated. Can you say PATCO?
Taken together, these facts may suggest that the shutdown, at least in the skimpily endowed minds and nutcases presently occupying the White House (I’m talking to you Stephen Miller), will empower the White House to root out deep state Democrats, who could quit or be fired for striking or simply forced to retire or quit just to personally survive, thus allowing Trump to repopulate the Federal workforce with people loyal to him.
Here is the only good news in this story: If this is some part of their intention, it cannot possibly work because 1) as aforesaid, there is no deep state, and 2) Federal Merit Service institutions will, in the end, after much pain and loss by millions, overcome any such plan and allow most displaced workers to reclaim their jobs, awarding backpay and benefits to Board qualified employees who are harmed. I have very particular ideas on some of this because I am a retired federal employee, a lawyer, and I spent many years of my legal career practicing at the United States Merit System Protection Board, handling cases involving complaints of adverse employment actions filed by employees who possess Federal Merit Service protection.
Right now, those Judges are not at work and their agency is virtually shut down. Not only that, the Administration has failed to appoint anyone for vacancies of Board Members whose principal duty is to consider appeals from the decisions of the Board’s Administrative Judges. Through negligence, incompetence or design, Trump seems to want to systematically disempower the principal guardians of the rights of Federal Merit Service employees. Notably, the Federal Merit appeal right, to review adverse employment actions, by an MSPB Administrative Judge, generally applies only to supervisors, managers and other, relatively senior, nonpolitical appointees. These are the people who actually make decisions and implement the actions of the various Federal agencies where they work and manage. If Trump were actually right about the existence of a deep state, Merit Board covered employees would be where the deep state lived in most parts of the government.
A Regional Administrator of the FAA once told me of his concern that a well paid and honest senior Federal employee can live well but they never really become truly wealthy, instead of becoming slaves to their income. Because it was the 1980s and the gentleman was the highest ranking African-American at that time among Federal civil servants, his choice of words struck me as particularly powerful and I have never forgotten. I have since observed widely that the same is true for similarly situated persons in many niches of the private sector. Trump has now cut off the incomes of huge numbers of such Federal employees, yet still requires many of them to work. Most have little if any, wealth to fall back upon. But all of them who have been furloughed or compelled to work without pay will, when the time comes, have the right to contest the furlough or lack of pay on numerous grounds, interestingly including on the basis of political affiliation.
In past shutdowns, Federal employees have received back pay and benefits when the government reopened, and that may happen again. The reason it seems to always happen is that these employees would otherwise possess the right to appeal to the MSPB for the pay and benefits anyway, and that could even be a class appeal, which could settle everyone’s hash in one fell swoop. Also, I don’t recommend that anyone ever try to tell any MSPB Administrative Judge that he or she lacks the power to make all of that happen. It’s right in their wheelhouse.
Which raises the subject of constructive discharge law at the MSPB and its effect on Trump’s hypothetical plan to make imaginary Democrats in an imaginary deep state abandon their jobs. Merit employees who retire or resign under the cloud of a long (1 month +) and indeterminate furlough or denial of pay stand a good chance of succeeding in an MSPB claim of constructive discharge. The Board has the jurisdiction and power, in my opinion (that no one should take as legal advice), to put any supposed deep state Democrats back in their jobs and to supplant any unlawfully appointed interlopers that Trump or his evil minions might put into their places. Note, no one can be appointed lawfully to a job that is already occupied and reinstatement makes it as though the reinstated employee never left. Hence the unlawful appointment of an interloping successor.
The MSPB is effectively out of business, at the moment. But, when the government does reopen, MSPB appropriations will be restored. If the legislation reopening things doesn’t take the right care of furloughed, unpaid or constructively discharged employees, many, if not most, will file MSPB appeals. The government will lose those appeals and be forced by statute to pay for back pay and benefits for the unlawfully treated employees.
Of course, any such shutdown strategy could not possibly work for other reasons, too. For one thing, it’s apparently based on the advice of a demented white supremacist to a maniacal sociopath. Insofar as replacing Federal managers with Trump loyalists may be concerned, Trump can’t even keep his cabinet staffed up, much less exert an important influence on who might be hired for nonpolitical Federal employment in jobs all over Washington DC and the entire remainder of the country.
Of course, while legal rights are better than no rights at all, pie in the sky, by and by, in the form of damages awarded someday by some judge, will not pay for tonight’s dinner or tomorrow’s rent. The damage to the affected employees, the country and its economy, multiply by the day, not just to the Federal employees but also for all whose livelihood depends on economic activity generated by Federal employment in their community.
All of this suffering has happened, continues to happen and will become even worse as time passes. Trump is a bully and those currently dripping honey into his ear are telling him exactly where and whom to punch. It will be fun, I suppose, when existing institutions slap these stupid acts down and award pay, benefits, and reinstatement to the Federal employees harmed, assuming Congress doesn’t beat them to the punch. But no one will ever pay anyone for this deliberately inflicted pain and suffering, and no victim will ever be made whole. And no one will ever reimburse anything for most non-Merit employees, or government contractors or their employees, or all the small businesses and working people who depend on business generated by the wages and benefits paid to Federal employees.
This is what government by maniacs looks like.
This is a Creative Commons article. The original version of this article appeared here.