Portside

A May 29 memo from the Office of Personnel Management may seem technical, but the policy that it outlines has grave implications for how the government functions and creates an unconstitutional political test for federal hiring.

At heart, the new policy is about viewpoint discrimination: People applying for federal jobs whose views the Trump administration does not like will not be hired. This is the most recent of the administration’s actions to undermine the nonpartisan Civil Service and consolidate control over almost all federal employees in the White House.

In a densely worded, 12-page memo, Vince Haley, an assistant to the president for domestic policy, and Charles Ezell, the acting O.P.M. director, make fealty to the president’s agenda a criterion for hiring for most federal positions. Imposing such a litmus test for nonpolitical positions runs afoul of the nearly 150-year-old federal Civil Service law, the 1939 Hatch Act and the First Amendment.

Under federal law, about 4,000 federal jobs are filled by political appointees. These positions allow the president to appoint those who share his views and to remove those who do not support his policy priorities. Most remaining federal jobs are hired based on nonpartisan and objective assessments of merit, and the hiring criteria are tied to the job duties.

The recent memo would, in effect, dramatically expand that exception for political appointees to include everyone at what’s known as level GS-5 or above — a group that includes clerical positions, technicians for soil conservation and firefighters. The ideologies and views of these individuals should play no role in their potential hiring.

The policy announced in the memo requires every person applying for a position level GS-5 or above to submit four essays. One requires that the applicant address: “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.” Another prompt: “How has your commitment to the Constitution and the founding principles of the United States inspired you to pursue this role within the federal government? Provide a concrete example from professional, academic or personal experience.”

Imagine that someone applying to be a secretary or a soil technician or a firefighter were to answer with: I believe the founding principles of this country were racist and I do not adhere to them. Or: I will perform my job to the best of my abilities and will follow federal law, but I do not see my position as political in any way.

It’s hard to imagine that those people would be hired. And yet, the Civil Service was created in the 19th century precisely to avoid such politically based hiring. The prohibition on political considerations in hiring was strengthened by the Hatch Act, which was enacted at the behest of conservatives who worried that too many Democrats had been hired to staff New Deal agencies.

Nonpartisan, merit-based hiring allows government to recruit and retain a high-quality work force and prevents one administration from packing federal jobs with political loyalists and the next one from replacing them with its own loyalists. The Trump administration will degrade the quality of government in both the short term and the long term, as it will tempt the next Democrat who moves into the White House to replace all the Trump loyalists with people who pass the Democrats’ preferred ideological litmus test.

The memo says its goal is “recruiting patriotic Americans for federal service.” 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.

Another part of the memo says the government will target “recruitment at state and land-grant universities, religious colleges and universities, community colleges, high schools, trade and technical schools, home-schooling groups, faith-based groups, American Legion, 4-H youth programs and the military, veterans and law enforcement communities.”

The memo purports to be about merit hiring, but there is no reason to believe that people at these targeted institutions are likely to have greater merit than others. The hypocrisy underlying this policy is palpable. Conservatives long have urged that every person be considered solely on the basis of individual merit. A home-schooled soil scientist, or one who is in 4-H or the American Legion, is not necessarily a better fit for a job than one who attended a public school or who belongs to different clubs.

The preference for “religious colleges and universities” and “faith-based groups” violates the First Amendment. If the federal government targeted recruiting at secular universities and secular groups, religious schools and groups would be justifiably outraged. A preference for religious schools and groups is likewise unconstitutional. To take a simple example, preferring to recruit at Georgetown University over George Washington University, solely because the former is a Jesuit institution and the latter is secular, would be offensive and unconstitutional.

Conservatives have opposed employers requiring D.E.I. statements out of concern that those who did not express a particular viewpoint would not get hired. This policy is strikingly similar — except the views expressed must be consistent with the politics of the Trump administration.

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.

[Erwin Chemerinsky is the dean of the law school at the University of California, Berkeley, where Catherine Fisk is a professor of labor law.]