[House Report 117-455]
[From the U.S. Government Publishing Office]


117th Congress    }                                   {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                   {       117-455

======================================================================

 
               PREVENTING A PATRONAGE SYSTEM ACT OF 2021

                                _______
                                

 September 2, 2022.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mrs. Carolyn B. Maloney of New York, from the Committee on Oversight 
                  and Reform, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 302]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Reform, to whom was referred 
the bill (H.R. 302) to impose limits on excepting competitive 
service positions from the competitive service, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
Summary and Purpose of Legislation...............................     2
Background and Need for Legislation..............................     2
Section-by-Section Analysis......................................     3
Legislative History..............................................     4
Committee Consideration..........................................     4
Roll Call Votes..................................................     4
List of Related Committee Hearings...............................     7
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     7
Statement of General Performance Goals and Objectives............     7
Application of Law to the Legislative Branch.....................     7
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     7
Federal Advisory Committee Act Statement.........................     8
Unfunded Mandates Reform Act Statement...........................     8
Earmark Identification...........................................     8
Committee Cost Estimate..........................................     8
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     8
Minority Views...................................................    10

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Preventing a Patronage System Act of 
2021'' or the ``PPSA Act of 2021''.

SEC. 2. LIMITATIONS ON EXCEPTION OF COMPETITIVE SERVICE POSITIONS.

  (a) In General.--No position in the competitive service (as defined 
under section 2102 of title 5, United States Code) may be excepted from 
the competitive service unless such position is placed--
          (1) in any of the schedules A through E as described in 
        section 6.2 of title 5, Code of Federal Regulations, as in 
        effect on September 30, 2020; and
          (2) under the terms and conditions under part 6 of such title 
        as in effect on such date.
  (b) Subsequent Transfers.--No position in the excepted service (as 
defined under section 2103 of title 5, United States Code) may be 
placed in any schedule other than a schedule described in subsection 
(a)(1).

                   SUMMARY AND PURPOSE OF LEGISLATION

    The Preventing a Patronage System Act would protect civil 
service rights and prevent federal employees from losing 
statutory and job protections. The bill would prevent any 
position in the competitive service from being reclassified to 
an excepted service schedule created after September 30, 2020. 
The bill would also limit federal employee reclassifications to 
the five excepted service schedules in use prior to fiscal year 
2021.
    The bill would protect the civil service system from 
political manipulation by codifying which federal employees can 
be hired or removed from their positions without due process.

                  BACKGROUND AND NEED FOR LEGISLATION

    The civilian federal workforce is comprised of three types 
of service: the Competitive Service, the Excepted Service, and 
the Senior Executive Service.\1\ Most civil service positions 
exist within the Competitive Service, which requires applicants 
to undergo a written test or other evaluation to demonstrate 
that they possess the acumen to perform their duties 
successfully before they can be hired into that position.\2\ 
Civil servants in the Competitive Service cannot be fired 
without due process, and are in this way protected from 
political interference within the executive branch.
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    \1\Office of Personnel Management, Policy, Data, Oversight (online 
at www.opm.gov/policy-data-oversight/hiring-information/competitive-
hiring/) (accessed July 27, 2022).
    \2\Id.
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    Congress abolished the ``spoils system'' and created a 
merit-based civil service with the enactment of the Civil 
Service Act of 1883.\3\ Also known as the Pendleton Act, the 
Civil Service Act of 1883 established the Civil Service 
Commission and created the Competitive Service and two excepted 
service categories, called schedules.
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    \3\National Archives and Records Administration, Pendleton Act 
(1883) (online at www.archives.gov/milestone-documents/pendleton-act) 
(accessed July 27, 2022).
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    Historically, excepted service categories were created for 
positions that required unique hiring or operating rules, for 
example positions of a short-term political nature or positions 
in remote areas or areas with a hiring need so great that 
competitive civil service rules could not apply.\4\ In these 
cases, individuals hired into positions classified in the 
excepted service were not vested with certain civil service 
appeal rights because they had not undergone the required 
competitive hiring process.
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    \4\Office of Personnel Management, Excepted Service Hiring 
Authorities: Their Use and Effectiveness in the Executive Branch (July 
2018) (online at www.opm.gov/policy-data-oversight/hiring-information/
excepted-service/excepted-service-study-report.pdf).
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    In 1956, at the direction of President Eisenhower, the 
lines between the competitive service and excepted service were 
clarified and redrawn, resulting in the creation of Schedules 
A, B, and C of Title 5 of the Code of Federal Regulations, 
Section 6.2.\5\ In the past ten years, two additional 
Schedules, D and E, were created--to open pathways to attract 
young talent and to except Administrative Law Judges from the 
Competitive Service, respectively.\6\
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    \5\Id.
    \6\Exec. Order No. 13562, 75 Fed. Reg. 82583 (Dec. 27, 2010); Exec. 
Order No. 13843, 83 Fed. Reg. 32755 (July 10, 2018).
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    In 2020, President Trump issued a far-reaching executive 
order to create a new excepted service Schedule F, which would 
have removed statutory appeal rights from many federal 
employees whose jobs are of a ``confidential, policy-
determining, policy-making, or policy-advocating 
character.''\7\ Employees in this new Schedule F could have 
been subject to removal for partisan political reasons, instead 
of merit or job performance. The creation of Schedule F would 
have countered decades of congressional actions to support an 
independent, professional civil service.
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    \7\Exec. Order No. 13957, 85 Fed. Reg. 67631 (Oct. 21, 2020).
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    President Trump's creation of a new Schedule F created an 
exception to the competitive civil service that was so large 
that the personnel of nearly entire agencies could have been 
redesignated as excepted employees. In fact, in the waning days 
of the Trump Administration, the Office of Management and 
Budget announced that 88% of their workforce would be eligible 
for reclassification under Schedule F.\8\
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    \8\Letter from Chairman Gerald E. Connolly, House Subcommittee on 
Government Operations, to Chairwoman Nita M. Lowey and Ranking Member 
Kay Granger, House Committee on Appropriations, and Chairman Richard 
Shelby and Vice Chairman Patrick Leahy, Senate Committee on 
Appropriations (Nov. 24, 2020) (online at https://connolly.house.gov/
uploadedfiles/joint_letter_to_senate_and_house_approps_re_sched_f.pdf).
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    President Biden overturned Executive Order 13957.\9\ 
However, should a future president decide to attack the 
independence and integrity of the competitive civil service, he 
or she would only need to rescind President Biden's order and 
reinstate Schedule F.
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    \9\Exec. Order No. 14003, 86 Fed. Reg. 7231 (Jan. 22, 2021).
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    To protect the non-partisan federal civil service, Congress 
should codify protections to prevent federal workers from 
manipulation by executive branch fiat. On January 13, 2021, 
Rep. Gerald E. Connolly, Chairman of the Subcommittee on 
Government Operations, and Rep. Brian Fitzpatrick introduced 
legislation that would prevent future administrations from 
manipulating the civil service, and ensuring all federal 
employees hired in the Competitive Service retain due process 
protections. This bill, the Preventing a Patronage System Act, 
limits the future exceptions to the civil service to existing 
schedules A through E, or new schedules that receive explicit 
statutory authorization.\10\
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    \10\H.R. 302.
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                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    The short title is the ``Preventing a Patronage System Act 
of 2021.''

Sec. 2. Limitations on exception of competitive service positions

    Subsection (a) of this bill limits the positions that can 
be moved from the competitive service into the excepted service 
to those positions that were in effect in the Code of Federal 
Regulations prior to September 30, 2020. The subsection 
prohibits any changes to the conditions and terms that defined 
the excepted service positions that existed prior to that date.
    Subsection (b) of the bill prohibits the transfer of anyone 
in the qualifying excepted service positions into a different 
schedule--other than the excepted service schedules that 
existed prior to September 30, 2020.

                          LEGISLATIVE HISTORY

    Chairman Gerald E. Connolly, along with Rep. Brian K. 
Fitzpatrick, introduced H.R. 302, the Preventing a Patronage 
System Act, on January 13, 2021. The Committee considered the 
bill at a business meeting on May 25, 2021, and ordered the 
bill favorably reported. Substantially identical measures have 
passed the House on two occasions--as Title XXII of H.R. 5314, 
the Protecting our Democracy Act, and as an amendment to H.R. 
7900, the National Defense Authorization Act for Fiscal Year 
2023.
    The Subcommittee on Government Operations has held three 
hearings that informed this bill. On, February 23, 2021, the 
Subcommittee held a hearing titled ``Revitalizing the Federal 
Workforce'' with expert witnesses--including Everett Kelley, 
President of the American Federation of Government Employees; 
Janice Lachance, former Director of the Office of Personnel 
Management; and Anne Joseph O'Connell, Professor of Law, 
Stanford School of Law--who warned of the harms Schedule F 
could cause.
    On December 1, 2021, the Subcommittee held a hearing on 
``the Future of Federal Work'' at which the minority witness, 
Andrew Biggs, Senior Fellow, American Enterprise Institute; 
stated:

          In general, private sector employment is at-will, 
        meaning you don't have to give a reason to dismiss 
        somebody. The Federal Government is the opposite of 
        that. And partly that arose for reasons you don't want 
        a politicized work force, and that goes back 100 years. 
        You don't want patronage appointments, things like 
        that.

    On July 21, 2022, the Subcommittee held an additional 
hearing on the Future of Federal Work.

                        COMMITTEE CONSIDERATION

    On May 25, 2021, the Committee considered H.R. 302 at a 
business meeting.

                            ROLL CALL VOTES

    There were two roll call votes during consideration of H.R. 
302 on the following measures:
    The amendment to the ANS offered by Rep. Hice was not 
adopted.
    H.R. 302, as amended, was favorably reported to the House.
    
    
    	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                       EXPLANATION OF AMENDMENTS

    During Committee consideration of the bill, Chairwoman 
Carolyn B. Maloney (D-NY), Chairwoman of the Committee, offered 
an amendment in the nature of a substitute (ANS) that modified 
the bill to make technical changes.
    Rep. Jody Hice offered an amendment to the ANS that struck 
the provisions of the bill and codified E.O. 13957.

                   LIST OF RELATED COMMITTEE HEARINGS

    In accordance with section 103(i) of H. Res. 6, the 
Committee held a hearing on February 23, 2021, to consider the 
proposals set forth in the Preventing a Patronage System Act 
along, with other legislative proposals to improve the 
operations and engagement of the federal workforce.
    In accordance with section 103(i) of H. Res. 6, the 
Committee held a hearing on December 1, 2021, on ``the Future 
of Federal Work.''
    In accordance with section 103(i) of H. Res. 6, the 
Committee held a hearing on July 21, 2022, to consider the 
proposals set forth in the Preventing a Patronage System Act, 
along with other legislative proposals to improve how federal 
employees serve the nation.

        STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF 
                             THE COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee finds that preservation of a 
professional, non-partisan, civil service is essential to the 
functioning of the federal government.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives of this bill are to ensure that the 
federal workforce is comprised of nonpartisan experts who are 
loyal to the Constitution.

              APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    The bill does not relate to terms and conditions of 
employment or access to public services or accommodations.

                    DUPLICATION OF FEDERAL PROGRAMS

    In accordance with clause 3(c)(5) of rule XIII, no 
provision of this bill establishes or reauthorizes a program of 
the federal government known to be duplicative of another 
federal program, a program that was included in any report from 
the Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                  DISCLOSURE OF DIRECTED RULE MAKINGS

    This bill does not direct the completion of any specific 
rule makings within the meaning of section 551 of title 5, 
United States Code.

                FEDERAL ADVISORY COMMITTEE ACT STATEMENT

    The legislation does not establish or authorize the 
establishment of an advisory committee within the definition of 
section 5(b) of the appendix to title 5, United States Code.

                 UNFUNDED MANDATES REFORM ACT STATEMENT

    Pursuant to section 423 of the Congressional Budget Act of 
1974, the Committee has included a letter received from the 
Congressional Budget Office below.

                         EARMARK IDENTIFICATION

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the House of Representatives.

                        COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of 
the House of Representatives, the Committee includes below a 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.

         NEW BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE 
                             COST ESTIMATE

    Pursuant to clause 3(c)(3) of rule XIII of the House of 
Representatives, the cost estimate prepared by the 
Congressional Budget Office and submitted pursuant to section 
402 of the Congressional Budget Act of 1974 is as follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 23, 2021.
Hon. Carolyn B. Maloney,
Chairwoman, Committee on Oversight and Reform,
House of Representatives, Washington, DC.
    Dear Madam Chairwoman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 302, the PPSA Act 
of 2021.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    		[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    H.R. 302 would limit the conditions under which a position 
may be reclassified from the federal competitive service to 
federal excepted service. Federal government civilian positions 
are generally part of the competitive civil service and 
applicants for those positions are evaluated through a 
competitive hiring process.\1\ Under current law, people may 
instead be appointed to excepted service positions within the 
federal government under limited circumstances, such as to fill 
specialized jobs.
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    \1\See Office of Personnel Management, ``Policy, Data, Oversight: 
Hiring Information'' (accessed June 21, 2021), https://go.usa.gov/
x6mHR.
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    CBO is unaware of any current federal civilian position 
reclassification activities that would be prohibited under the 
bill. On that basis, CBO estimates that implementing the bill 
would have no significant effect on the federal budget.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Director of Budget Analysis.

                             MINORITY VIEWS

    Committee Republicans oppose H.R. 302. This legislation 
rashly eliminates the ability of future presidents to improve 
the efficiency and effectiveness of the civil service by 
establishing new categories of excepted service positions. This 
bill is not justified by either recent experience or by the 
original purposes of the merit-based civil service. On the 
contrary, experience during the Trump Administration shows that 
the creation of new excepted service schedules can be critical 
to ensure civil servants impartially and dutifully serve all 
presidential administrations. That is the very purpose of the 
merit-based civil service.

I. THE TRUMP ADMINISTRATION'S EXPERIENCE DEMONSTRATES THE NECESSITY OF 
  PRESERVING PRESIDENTIAL FLEXIBILITY TO ENSURE THE MERIT-BASED CIVIL 
 SERVICE IMPARTIALLY SUPPORTS ANY AND ALL PRESIDENTIAL ADMINISTRATIONS

    The U.S. Constitution was written to ensure a government 
``of the people, by the people, for the people.''\1\ Central to 
that design is the President's authority to implement the 
policy mandate he or she receives from the voters in each 
presidential election.
---------------------------------------------------------------------------
    \1\President Abraham Lincoln, Gettysburg Address (Nov. 19, 1863).
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    In our modern American government, the President relies on 
both his or her political appointees and vast amounts of career 
civil servants in policy-related roles to bring the voters' 
policy mandate to life across large numbers of federal 
agencies. The President, along with his or her appointees, are 
to be the decisionmakers, accountable to the voters and 
Congress. Career civil servants are to provide the President--
and his or her administration--with impartial expertise to best 
inform and construct their ultimate executive policy decisions.
    Many, if not most, career civil servants in policy-related 
roles appear to be faithful employees who deliver that 
impartial expertise to the benefit of successive presidents of 
differing parties and, above all, to the American people. Yet, 
in recent years--and particularly during the Trump 
Administration--increasing numbers of civil servants in policy-
related roles have resisted the policy and political direction 
of the duly elected President.\2\ As Professor Jennifer Nou of 
the University of Chicago Law School recounts, civil servants 
during the Trump Administration ``reportedly created support 
groups to oppose the Trump Administration and signed up for 
workshops on how to resist.''\3\ While acknowledging such 
``resistance'' is not necessarily new, she explains that:
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    \2\See, e.g., Jennifer Nou, Civil Servant Disobedience, Chicago-
Kent Law Rev., vol 94, issue 2, 349 (May 1, 2019) (``Civil Servant 
Disobedience''); James Sherk, Tales from the Swamp: How Federal 
Bureaucrats Resisted President Trump, America First Pol. Inst. (Feb. 1, 
2022) (Tales from the Swamp).
    \3\Civil Service Disobedience at 350.

          What seems potentially novel in the Trump 
        Administration is the extent to which that resistance 
        is openly defiant. Instead of being covert or channeled 
        through official mechanisms, a greater degree of 
        dissent seems to have spilled out into the open by 
        civil servants identified as such. Bureaucrats 
        increasingly seem to be opposing the President in their 
        official capacity. And they are doing so despite strong 
        agency norms to the contrary.\4\
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    \4\Id. at 351.

    This is unacceptable in a government that is intended to be 
responsible to the voters--not the whims or ideological 
leanings of career civil servants. In opposing a substantially 
similar version of H.R. 302 which passed the House as an 
amendment proposed by Rep. Gerry Connolly (D-VA) to H.R. 7900, 
the Fiscal Year 2023 National Defense Authorization Act, Rep. 
Jody Hice (R-GA) highlighted this point on behalf of House 
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Republicans in his remarks on the House floor:

          The bottom line is that the voters elect the 
        President, and then the President nominates 
        administration officials to implement the policy that 
        the voters have elected the President to implement. 
        When career officials resist implementing those 
        mandates, then they are, in effect, resisting the 
        voters.\5\
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    \5\168 Cong. Rec. H6469 (daily ed. July 13, 2022) (statement of 
Rep. Hice).

    Each presidential election gives a president four years to 
implement the voters' policy mandate. Policymaking can be 
notoriously slow, particularly when pursued through agency 
rulemaking.\6\ If the President is unable to reign in civil-
servant defiance through prompt discipline or removal, the 
President's term in office could easily be wasted away by the 
refusal of civil servants in policy-related roles to help 
implement the voters' mandate. That would be utterly contrary 
to America's system of elective governance.
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    \6\See, e.g., Maeve P. Carey, The Federal Rulemaking Process: An 
Overview, CONGRESSIONAL RESEARCH SERVICE (June 17, 2013).
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    It is in the excepted service, not the competitive service, 
that the President and his or her political appointees have 
access to swifter disciplinary and removal procedures. 
President Trump thus rightly responded to the problem of 
insubordinate career employees in policy-making roles when he 
issued Executive Order 13957, ``Creating Schedule F in the 
Civil Service.''\7\ Contrary to Congressional Democrat's 
mischaracterization of it, this order did not reestablish a 
patronage system--far from it. The order did not touch the vast 
majority of the civil service, nor did it affect the Senior 
Executive Service. It simply ensured that, through the 
availability of better disciplinary and removal procedures 
against insubordinate policy-related officials, the President 
could guarantee that civil servants made available to him the 
professional and technical policy-related expertise they were 
placed in their positions to give.
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    \7\85 Fed. Reg. 67631 (Oct. 26, 2020).
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    The Schedule F executive order made it easier to take 
action against Schedule F employees, up to and including 
termination, for performance issues and denied Schedule F 
employees the ability to appeal disciplinary procedures and 
firings. That was consistent with the merit-system's goal of 
ensuring that any and all presidents have available to them a 
corps of impartial expert assistants in the career service who 
will help them to implement their policy mandate.
    The Schedule F order's opponents claim it constituted a 
return to a 19th-century-style patronage system. However, the 
order's terms did not represent that. Rather, the order 
maintained the merit system while instituting an appropriate 
defense against the entrenchment of a biased corps of civil-
service policy bureaucrats who could easily resist the 
President's--and the voters'--will. We must emphasize--the 
merit-based system was not intended to create a civil service 
independent of, and unresponsive to, presidential authority. It 
was intended to create an impartial civil service.

II. H.R. 302 IS UNNECESSARY AND WOULD NEEDLESSLY THWART THE ABILITY OF 
FUTURE PRESIDENTS TO CREATE NEW SCHEDULES OF EXCEPTED SERVICE POSITIONS 
                            WHEN APPROPRIATE

    Putting aside the merits of President Trump's Schedule F 
order, this bill is no longer needed, represents unnecessary 
legislating, and it would therefore be irresponsible for the 
U.S. House to pass it. President Biden rescinded E.O. 13957 
immediately upon taking office.\8\ Yet the bill not only would 
ban the reinstitution of President Trump's Schedule F, it would 
preclude any future president from instituting any new excepted 
service schedule. In other words, regardless of what 
circumstances future duly elected presidents may encounter, and 
what additions to the excepted service might be needed to meet 
them, this bill, out of spite for President Trump's entirely 
appropriate executive action, would preclude future presidents 
from exercising their executive prerogatives. We cannot support 
this reckless legislative overreach and attempt to bind the 
flexibility of future presidents' actions to meet our country's 
needs.
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    \8\See Executive Order 14003, Protecting the Federal Workforce, 86 
Fed. Reg. 7231 (January 27, 2020).
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                            III. CONCLUSION

    Committee Republicans oppose H.R. 302.

                                   James Comer,
                                           Ranking Member, Committee on 
                                               Oversight and Reform.

                                  [all]