Establishing an Exception to Competitive Examining Rules for Appointment to Certain Positions in the United States Marshals Service, Department of Justice

Overview

Purpose and Intent: Executive Order 13842, issued by President Donald Trump on July 10, 2018, modifies the hiring process for certain positions within the United States Marshals Service (USMS), a component of the Department of Justice. This order establishes an exception to the competitive examining rules by placing Deputy U.S. Marshals and Criminal Investigators into Schedule B of the excepted service. This aims to expedite hiring procedures and enhance the USMS's ability to recruit and retain qualified personnel, reflecting a broader agenda to streamline law enforcement operations.

Improvements in Recruitment: By bypassing traditional competition-based hiring processes, Executive Order 13842 seeks to resolve recruitment challenges faced by the USMS. The decision to include these positions under Schedule B is meant to align hiring practices with other federal law enforcement agencies that enjoy similar flexibilities. This exception allows the USMS to aggressively pursue candidates from diverse backgrounds and skills, improving the quality and diversity of law enforcement personnel.

Administrative Flexibility: The order reflects a strategic alignment with federal law enforcement hiring practices. It recognizes the unique demands placed on the USMS, such as varying duty locations and specialized law enforcement roles, which necessitate a more flexible approach in personnel selection. By reducing bureaucratic hurdles, the order seeks to enhance operational readiness and efficiency within the USMS, thereby improving law enforcement capabilities across jurisdictions.

Non-Competitive Conversions: Under Section 2, the order provides for non-competitive conversion to career appointments for Deputy U.S. Marshals and Criminal Investigators after three years of continuous, fully satisfactory service. This provision incentivizes long-term commitments and helps retain experienced personnel, essential for maintaining institutional knowledge and operational consistency within the USMS.

Scope and Limitations: While expanding hiring flexibility, the order clearly demarcates its boundaries, excluding positions of a confidential or policy-determining character and those within the Senior Executive Service. Furthermore, the appointments are subject to applicable laws and regulations governing Schedule B positions, ensuring that the order operates within existing legislative frameworks while providing the necessary latitude to the USMS leadership.

Legal and Policy Implications

Statutory Authority: The executive order leverages the presidential authority vested by the U.S. Constitution and statutory provisions, notably sections 3301 and 3302 of Title 5 of the United States Code. These sections grant the President the power to regulate aspects of federal employment and provide exceptions as needed for specific roles within the federal government, especially when dealing with national security or law enforcement functions.

Regulatory Changes: By moving specific positions into Schedule B of the excepted service, the order effectively alters the regulatory landscape governing federal employment for these roles. It removes the competitive examination requirement, a move which could be seen as setting a precedent for similar adjustments in other federal agencies with comparable needs. The regulation also places these appointments outside the competitive service, necessitating careful coordination with the Office of Personnel Management to ensure all procedural requirements are met.

Policy Framework: The order interacts with the broader policy initiatives of the administration, particularly those prioritizing law enforcement efficiency and strategic personnel management. It underscores a preference for specialized hiring mechanisms tailored to the unique demands of security agencies, diverging from the traditional one-size-fits-all competitive service model and embracing a more bespoke approach to federal employment.

Impact on Federal Hiring Practices: The transition to an excepted service framework for these roles underscores a significant policy shift. By including Deputy U.S. Marshals and Criminal Investigators under Schedule B, the administration expands the scope of excepted service roles, reflecting a growing trend towards promoting administrative agility over strict adherence to competitive examination protocols.

Long-term Policy Consequences: While the immediate effects concern the structure and speed of hiring processes, the long-term implications may involve broader debates about the balance between flexibility and merit-based hiring. This executive order's alignment with similar orders for other agencies could gradually transform federal hiring practices, influencing policy discussions around adaptability and efficacy in government human resource management.

Who Benefits

USMS and Law Enforcement Agencies: The primary beneficiary of this executive order is the United States Marshals Service. By granting USMS the ability to hire Deputy U.S. Marshals and Criminal Investigators more expediently, the order bolsters staffing capabilities, ensuring that law enforcement vacancies are filled with greater efficiency and potentially higher quality candidates. This enhanced recruitment capability assists in addressing regional staffing shortages and fulfilling strategic operational goals.

Potential Recruits: Individuals pursuing careers in law enforcement with the USMS stand to benefit significantly from this order. Under Schedule B provisions, potential recruits experience a streamlined hiring process that emphasizes qualifications and job fit over standardized testing, potentially lowering barriers for talented individuals who may have faced challenges in a traditional competitive examination setting.

Diverse Applicants: The order's flexibility could facilitate a more inclusive hiring process, opening doors for women and minorities who historically have been underrepresented in federal law enforcement roles. By easing recruitment procedures, the order may contribute to a more diverse workforce, reflective of the communities served by the USMS.

Experienced Law Enforcement Professionals: Law enforcement professionals from other agencies or jurisdictions with substantial experience but without federal service history could find the eased procedural requirements advantageous as they seek to transition into the USMS, thereby enriching the pool of applicants with seasoned and practice-ready candidates.

Overall Justice System: The broader justice system benefits indirectly through enhanced USMS functionality, as efficient operations contribute to quicker apprehensions, better execution of judicial mandates, and more robust federal support to local law enforcement, ultimately promoting national security and public safety.

Who Suffers

Advocates of Competitive Hiring: This order may concern advocates who emphasize merit-based, competitive hiring as a bulwark against patronage and cronyism. By placing these positions into Schedule B, the order reduces the transparency traditionally associated with competitive examination processes, potentially opening the door to subjective hiring practices.

Current Employees: For existing USMS personnel who were hired under competitive processes, the change could be perceived as diminishing the value of standardized examinations, which have historically served as a standard measure of competency and qualification. Such a shift might influence morale, especially among those who view competitive hiring as a definitive career progression threshold.

Oversight Entities: Agencies tasked with overseeing federal hiring practices, such as the Office of Personnel Management, may find the expansion of excepted service roles problematic, complicating regulatory oversight and enforcement of uniform hiring standards across agencies. This shift could strain resources and necessitate additional regulations to manage increased Schedule B appointments.

Applicants Adhering to Traditional Routes: Individuals who have prepared for traditional competitive examinations may find the move to Schedule B disadvantages them, as their preparation specifically for those processes may no longer provide an edge in securing USMS positions, altering career trajectories based on traditional federal hiring pathways.

Civil Service Equity Proponents: Those supporting equitable access to federal employment through standardized measures might view the order as regressive, fostering an environment where non-transparent hiring increases the risk of favoritism or subjective decision-making, thus potentially undermining public trust in federal hiring integrity.

Historical Context

Trend Toward Flexibility: Executive Order 13842 fits within a continuing trend in federal government administration towards flexibility and adaptability in hiring practices. During Trump's presidency, several executive orders aimed to streamline federal workforce operations, consistent with his administration’s broader deregulatory agenda seeking to reduce bureaucratic hurdles across various sectors.

Law Enforcement Priorities: The order aligns with a core priority of the Trump administration: bolstering law enforcement capability. By facilitating more efficient personnel acquisition, the administration seeks to enhance the operational readiness of federal agencies, resonating with Trump's campaign promises to strengthen law enforcement and improve public safety.

Historical Precedents: While similar in effect to previous exceptions granted to federal agencies needing expedient hiring processes due to unique operational demands, this order extends those flexibilities specifically to law enforcement functions, highlighting a shift from standardized testing towards pragmatism in fulfilling agency-specific needs.

Comparison to Past Policies: Comparative assessments can be drawn to prior administrations that used executive orders to bypass competitive service requirements under exceptional circumstances, suggesting a systemic recalibration of government personnel policies where strategic needs outweigh traditional hiring frameworks.

Impact on Future Policymaking: Historically, such orders serve as bellwethers for systemic changes, prompting policymakers to reconsider the balance between competitive and non-competitive hiring practices within the federal landscape, potentially leading to comprehensive legislative updates to address evolving service demands.

Potential Controversies or Challenges

Constitutional Scrutiny: The executive order, while not overturning statutory mandates, modifies hiring processes that some critics argue could overextend executive authority by circumventing congressional intent behind federal employment laws aimed at ensuring merit-based competition.

Legal Disputes: Though no significant litigation has emerged directly challenging this order, similar deviations from competitive hiring have faced legal scrutiny. Should disputes arise, potential plaintiffs could argue unlawful circumvention of established competitive hiring protections designed to ensure fairness and equity.

Congressional Pushback: As with other deregulatory actions taken by the administration, there is the potential for legislative backlash. Some members of Congress may view the executive order as an erosion of civil service principles, prompting scrutiny over impacts on employment fairness and agency accountability.

Enforcement Concerns: Implementing this order requires careful regulation and guidance from the Office of Personnel Management. Ensuring adherence to executive and legislative intent demands rigorous monitoring. Any oversight failures could prompt demands for additional checks to counterbalance increased executive latitude in hiring.

Public Perception and Trust: Public concern over the erosion of competitive standards in federal hiring could fuel broader skepticism regarding the intentions behind such orders. Simplifying processes for law enforcement agencies, while potentially beneficial, must be carefully managed to maintain public trust in fair government hiring practices.