JD Vance may have had a rocky start as a vice-presidential nominee, but he still holds some sway in the book publishing industry. That influence recently took the form of a book that will not be immediately published — a conservative manifesto by Kevin Roberts, the president of the Heritage Foundation and the face of Project 2025, which was supposed to come out next month but has now beenpushed until after the election. The hardline agenda of Project 2025, of course, became a drag on Donald Trump’s reelection bid and the book was likely to make things even worse since Vance had written an admiring foreword.
One key policy pushed repeatedly by Vance and outlined in Project 2025 is Trump’s controversial “Schedule F” proposal, which would strip civil service protections from potentially tens of thousands of federal employees so that they can be replaced by Republican political appointees.
Most provocatively, Vance has suggested in a series of interviews this year that Trump should defy the Supreme Court if the justices invalidated the effort.
The episode is worth scrutinizing not just because the proposal is a key piece of Trump’s likely governing agenda if he wins in November. It also suggests Vance, whom Trump touts as a Yale-educated lawyer, is oblivious to the underlying legal and practical mechanics of this sweeping overhaul as well as the realities of today’s Supreme Court.
The fact is this proposal is almost certainly unlawful and unworkable — but that doesn’t mean the court would block it. The conservative supermajority on the Supreme Court has proved more than willing to contort itself to achieve Republican goals, so there’s no reason to assume any legal challenge to such a policy would result in a clash between Trump and the court.
If Vance isn’t ignorant of the law, then he is instead merely eager to play the role of demagogue and further inflame an already bitter political debate. Ultimately, neither scenario is ideal for a potential vice president.
On the merits, Schedule F is a controversial idea — one that would undermine the civil service system as it has existed for more than a century and severely impair the integrity and effectiveness of the federal government, with grave consequences.
Currently, the vast majority of federal employees who keep the government running are career civil servants with employment protections and who serve from one administration to the next regardless of party. This is a key part of the “deep state” that Trump and Vance want to eradicate; Schedule F would convert these workers into political appointees who could then be summarily fired by the president and replaced with partisans loyal only to Trump.
“What Trump is trying to do is create a sort of authoritarian type of government where he can manipulate the civil service system to do what he wants,” said Kenneth Warren, a professor at St. Louis University whose areas of expertise include administrative law and the administrative state. “That’s very, very dangerous.”
Daniel Farber, a professor at Berkeley Law School who has also studied the proposal, echoed that view while also emphasizing the legal and administrative mess that would result. “This could turn into an enormous quagmire if they tried to implement it,” he said.
Trump first tried to implement Schedule F during his final months in office through an executive order, but he lost the election and the policy never took hold. Joe Biden rescinded the order shortly after taking office. And earlier this year, the Office of Personnel Management issued a lengthy rule that both reiterates and legally strengthens the traditional job protections afforded to those career officials.
Vance, however, has for years been a vocal proponent of purging the civil service, and of Schedule F.
“I think that what Trump should, like, if I was giving him one piece of advice, [is] fire every single mid-level bureaucrat, every civil servant in the administrative state,” he said in 2021 on a podcast. “Replace them with our people. And when the courts — because you will get taken to court — and when the courts stop you, stand before the country like Andrew Jackson did and say, ‘The chief justice has made his ruling. Now let him enforce it.’” (The quote attributed to Jackson is, as one scholar has noted, “probably apocryphal.”)
In an interview with George Stephanopoulos on ABC News in February, Vance reiterated his stance while also seeming to recognize its extreme and unpopular nature — falsely claiming, for instance, that his earlier comments had been limited to the president’s ability to run “the military.”
And in an interview with POLITICO Magazine, Vance went further: “If the elected president says, ‘I get to control the staff of my own government,’ and the Supreme Court steps in and says, ‘You’re not allowed to do that’ — like, that is the constitutional crisis. It’s not whatever Trump or whoever else does in response.”
Vance’s loose collection of legal claims and concepts concerning Schedule F faces several problems, on both a theoretical and practical level.
At the moment, Schedule F “is illegal,” as Warren noted. OPM’s rule bolstering job protections for career employees, which was initiated last September, would take priority over any effort by Trump to reinstate the policy by executive order. It is “very, very tough” for a federal agency to rescind and replace a rule issued through the typical notice-and-comment process, Warren observed, though it would at least theoretically be doable over time if Trump were to retake office and direct his OPM to do so.
The bigger problem, Warren explained, is that OPM’s rule is legally rooted in a long history of statutes passed by Congress — going all the way back to the Pendleton Act of 1883 — and many court decisions since. OPM, he told me, had “done a great job with the rule” by synthesizing and consolidating the preexisting legal authority that makes clear that Trump and Vance cannot simply fire tens of thousands of career employees and politicize the entire federal government by fiat.
In this view, only Congress — not the president — can implement a policy like Schedule F.
Indeed, the legal argument made in Trump’s original executive order for Schedule F had once acknowledged this reality and had focused on a narrow provision of federal law that allows certain positions to be exempted from the career civil service. Based on his public remarks, Vance appears not to know this even though it is — by definition — better for a legal argument to contain some actual law.
Still, the Trump administration’s earlier legal theory is also questionable on its face according to both Warren and Farber, the latter of whom told me that it is “too hasty,” especially after the Supreme Court’s decisions overruling Chevron and creating the “major questions” doctrine, which supposedly disfavors executive actions with vast economic and political significance that don’t have clear authorization from Congress. On this view, the court is far less likely to give deference to Trump or his OPM’s interpretation of the statute.
Just last year, the Republican appointees on the Supreme Court used the major questions doctrine to throw out a big chunk of Biden’s student loan relief program on the theory that the administration had tried to justify a dramatic change in federal policy using aggressive and expansive readings of what were, according to them, much narrower statutory authorities.
Former Supreme Court Justice Antonin Scalia once wrote that Congress does not “hide elephants in mouseholes.” “Schedule F is an elephant,” Farber said.
Vance’s final line of argument — in fact his only real line of argument — is that the president is constitutionally entitled to run the executive branch however he sees fit. It’s a variation on the unitary executive theory, though not a particularly compelling one.
With the exception of the small number of executive branch officials specifically named in the constitution, the apparatus of the federal government only exists because Congress passes laws and funds the agencies and other executive branch functions necessary to implement them — including the money used to pay all of those people. The idea that the president could simply preempt Congress’ authority in this area is a huge stretch, and it would likely trigger a major constitutional dispute that could take years to resolve.
“That argument might have played fine at a seminar at Yale when Vance was a student,” Farber said, “but is this the hill you really want to die on? Is this where you want to provoke a massive constitutional crisis? Over federal personnel policy?”
A second version of Schedule F in another Trump administration would, in the short term, spur broad challenges to the policy in the courts, but as Farber noted, “even if Schedule F were upheld, there would be a second potential for challenging whether any individual position or civil service employee was properly classified” and removable under the policy.
In other words, there could be hundreds — potentially thousands — of fact-specific legal cases brought by federal employees to contest their reclassification and removal by Trump and Vance given their particular job functions. The result, at a bare minimum, could be years of time-consuming and costly litigation, all at taxpayer expense.
Even as a practical matter, it would not be nearly as easy as Vance has so casually suggested to remove and replace tens of thousands of federal employees without throwing the government into chaos in the interim. It would make a government shutdown look like a walk in the park. (Of course, that may be a feature not a bug for some conservatives, who would be delighted to see EPA or the Labor Department ground to a halt.)
Vance’s proposal for Trump to simply defy the Supreme Court if it threw out Schedule F is also deeply concerning. It runs contrary to our collective, basic and firmly embedded civic understanding that the Supreme Court has the last word on what the law is in this country, for better or worse. Americans may not like it — they frequently and at times vocally do not — but it is a broadly accepted fact of American governance, and Vance’s evident willingness to reject it is worrisome.
“It certainly feeds into concerns that people have expressed about authoritarianism as an element of his thought,” Farber told me. “That’s not the sort of thing leaders in a democracy say — and definitely not about relatively routine legal issues.”
Based on the law and sheer practicality, Vance’s vision of gutting the civil service would seem difficult to execute. But today’s Supreme Court may not be the greatest obstacle in the way. In fact, Vance’s ostensibly confrontational pose toward the court is genuinely curious — if not outright bizarre — under the circumstances.
The Supreme Court — which is controlled by a supermajority of justices installed by Republican presidents, including three Trump appointees — is friendlier to Republican political interests and conservative causes than at any point in decades. That is a major reason why the court’s public approval remains at a historic low and why there is a political movement gaining momentum to fundamentally change the structure of the court. If Trump is reelected and Justices Clarence Thomas and Samuel Alito resign during his term, Trump could end up appointing an outright majority of the court.
Despite the objectively dubious legal merits of Schedule F, this Supreme Court might very well sign off on it if Trump is elected and pushes some version of it again in a second administration.
“We know that courts can rationalize anything,” Warren told me, “as they just did in [overruling Chevron] or in Trump v. United States,” which granted Trump partial immunity from criminal prosecution over his alleged effort to steal the 2020 election.
The odds of a major standoff between Trump and the Supreme Court in a second term — something that never really happened in the first term even before Trump made all three of his appointments — seem low, to put it mildly. (No, the court didn’t entertain Trump’s election subversion efforts, but it ultimately approved his travel ban from mainly Muslim countries and signed off on his decision to transfer billions of dollars from a congressional military appropriation to fund the construction of his “wall” along the southern border.)
Vance, of course, is not the first lawyer to offer simplistic and misleading views on the law once they enter the political arena. He isn’t even the first prominent Republican Yale Law School alumnus to do it this year.
But all of this makes Vance’s commentary on the court even stranger, except in the narrow — and perhaps most telling — sense that he seems drawn to needlessly incendiary comments designed to rile up the Republican base, even if they turn off moderates and independents.
In that sense, his position on Schedule F and the Supreme Court is not that different from his now-infamous position on “childless cat ladies” — a crude, aggressive and gratuitous swipe at millions of Americans that managed to polarize an issue (support for American families) on which there is actually broad bipartisan support.
These sorts of antics may ingratiate him to Trump and the Republican hard-liners. Whether they actually help Trump win back the presidency, however, is a decidedly open question.
