About a month after Election Day 2024, it became clear that Donald Trump’s team had embraced a problematic approach to new employee screenings. The New York Times, for example, reportedly spoke to several people involved in the hiring process for high-ranking positions who were asked whether they believed the 2020 election was stolen.
The Wall Street Journal reported soon after that the Republican operation was imposing “loyalty tests” on job applicants, even asking candidates about their views on NATO and tariffs for jobs unrelated to international affairs or economic policymaking. Two weeks after Inauguration Day, The Washington Post reported on similar tests being applied to candidates for top national security positions, including questions about whether the Jan. 6 attack on the U.S. Capitol was “an inside job.”
By last summer, it reached the point at which Politico reported that the White House had unveiled what it described as the “Merit Hiring Plan,” which would limit new federal employees to “patriotic Americans.”
How would the Republican administration go about testing applicants’ patriotism? The screening process required — among other things — that applicants write essay responses to questions such as, “How would you help advance the President’s Executive Orders and policy priorities in this role? Identify one or two relevant Executive Orders or policy initiatives that are significant to you, and explain how you would help implement them if hired.”
It seemed inevitable that such a policy would face a legal challenge, and so it did. So far, it’s not faring especially well. Government Executive reported:
A federal judge in Massachusetts issued a decision Friday halting federal agencies from asking job applicants about their favorite Trump administration initiative, concluding the essay question likely violated jobseekers’ First Amendment rights.
In U.S. District Judge George O’Toole’s long-awaited ruling, he focused on a sworn declaration of a federal employee and member of the American Federation of Government Employees, one of three unions suing to block the question’s deployment, who said she felt compelled to provide an answer contrary to her personal views for fear that not answering — or answering honestly — would “hurt her application.”
“The plain language of [the relevant question] calls for the applicant’s personal views on a political topic, and directly links that personal view to the duties of the desired civil service job,” O’Toole wrote.
The policy was intended to apply to everyone seeking a job at the GS-5 pay grade or above, a group that would include everyone from firefighters to food inspectors to air traffic controllers.
Thanks to O’Toole’s court order, issued late Friday, this part of the hiring process at federal agencies is on hold while the underlying legal questions continue to be adjudicated.
It’s a tough outcome to disagree with. In an opinion piece for the Times last year, Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, and Catherine Fisk, a professor of labor law at the same school, explained, “The government can and should ensure that federal employees, from administrative assistants to air traffic controllers, have the skills and aptitude to do their jobs. But their views on the administration’s policy priorities are irrelevant, as is their patriotism — however that is defined. Allowing someone in the government to screen applicants for patriotism is reminiscent of the loyalty oaths of the McCarthy era, which were arbitrarily applied to unfairly deny employment to many.”
Chemerinsky and Fisk added, “No modern presidential administration has undertaken such an effort to staff the entire government with political loyalists. It is plainly inconsistent with good government, with federal law and with the Constitution.”
For now, the judge overseeing the case is thinking along the same lines. Watch this space.
This post updates our related earlier coverage.
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