How to Hack a Hiring Freeze

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As federal managers navigate the ins and outs of President Donald Trump’s federal hiring freeze, a pair of exemptions may unshackle agency leaders looking to add employees.

Trump’s Jan. 23 executive order prohibits agencies from hiring any new employees for 90 days until the Office of Management and Budget develops a plan to reduce the workforce through attrition, exempting the Department of Defense.

But it also exempts “any positions that it deems necessary to meet national security or public safety responsibilities” within federal agencies.

That broad brush could leave room for agencies to add new employees based on the importance of their roles to operations. Cybersecurity staffing may be easily argued as integral to national security functions in the wake of breaches like the 2015 Office of Personnel Management hack.

But the executive order doesn’t provide specific guidance on what jobs meet the national security/public safety criteria, leaving a potential gaping hole in the freeze.

“Since the executive order gives a lot of discretion to the agencies to begin with, there really are opportunities for carving out fairly broad exemptions to the freeze right off the bat,” said Don Kettl, a professor at the University of Maryland’s School of Public Policy and a nonresident senior fellow at the Brookings Institution.

“What about hiring air traffic controllers? What about hiring people who work for the TSA? There’s a question of hiring temporary workers at the IRS for processing tax returns. The VA has fairly directly challenged the freeze, saying that, ‘Our mission requires us to hire large numbers of new workers to be able to keep up with the care we promised to the vets.’”

Another issue is whether Trump would even be able to police such a freeze or assess which hires meet the exemptions’ criteria.

“The White House — but especially OMB — is at this point so thinly staffed with new appointments that it’s not clear who’s in place to oversee, supervise and police this,” Kettl said.

And while the White House has not laid out specifics on which roles that meet the exemption, there is another protocol that might: A government shutdown.

The Antideficency Act — the law cited when determining which essential personnel remain at an agency during a shutdown — forbids agency activity unless “failure to perform those functions would result in an imminent threat to the safety of human life or the protection of property.”

But even that designation gets pretty broad, as federal personnel continue to play a larger role in essential services.

Chris Cummiskey, a former acting undersecretary for management at the Department of Homeland Security under President Barack Obama, said that the definition of essential personnel even during the 2013 shutdown remained expansive.

“At first, we were worried about the impacts of a potential shutdown,” he said. “But when push came to shove in terms of the actual numbers, of the 240,000 employees of the department, 191,000 were deemed to be exempt under the waiver process that was put in place at that time.”

Apply a similar principle of national security and public safety exemption to a department like DHS and the Trump freeze has significantly less bite.

“At least with Homeland Security, I wouldn’t hit the panic alarm quite yet in terms of the hiring,” Cummiskey said, but he noted that the longer a hiring freeze goes, the tougher it will be to fill critical technical positions.

Kettl said that the executive order — like its predecessors under presidents like Reagan and Carter — is largely a symbolic instrument. The real fight to watch, he said, will come in three months with OMB’s plan to reduce the size of government.

“If there are going to be real teeth, that’s where the teeth will be shown,” he said.