The Supreme Court’s decision in Trump v. Slaughter asks more questions than it answers, but it seems to gloss over one thing that I know to be true: that political appointees and career civil servants are different. To be sure, they both serve the public — that may be the only thing they have in common — but they do so for completely different reasons.

And while many pundits, many of whom shall remain nameless, try to deliberately equate the two, and in so doing imply that only those of their particular political persuasion have the public’s interest at heart, let me be clear, that is simply not true: Political appointees and career civil servants are NOT the same. Yet SCOTUS also seems to treat the two as synonymous. And that’s a problem.

Career civil servants and political appointees, including those of the latter stripe who are named to “independent” agencies in order to provide a semblance of political balance, come to public service in two very different ways, and with two very different purposes. Career civil servants are there to serve the Constitution and law, and where those may be ambiguous, which is too often the case, the lawful orders of their bureaucratic superiors. That is true whether those superiors are career civil servants, political appointees or even elected officials.

Civil servants may also have a moral red line too, although even that is different. But above all, they are meant to be politically neutral.

However, while political appointees, including those expressly targeted by Slaughter, take an oath to serve the same Constitution, they are appointed first and foremost based on their partisan political loyalty, nothing more and nothing less. Their so-called “technical qualifications” are secondary, especially given that many wouldn’t even make a best qualified (BQ) list for a civil service position.

That said, Slaughter leaves many questions unanswered, perhaps referring them to the courts, the White House and/or the Congress to decide. For example, while SCOTUS says the Constitution guarantees that a president gets to appoint “inferior officers” with whom he can work, exactly what does that mean?

For example, must a president still appoint individuals of an opposing political party, in order to preserve an agency’s independence, just so long as he can work with them? What happens if he cannot find any, or simply refuses to even look, and thus prevents an agency from accomplishing its statutory mission, much like President Donald Trump did with the Merit Systems Protection Board (MSPB) in his first term?

Or what happens if Congress expressly establishes an agency, like the Government Accountability Office, outside of the executive branch? Is that even constitutional?

More broadly, just what role does SCOTUS envision for the Congress in that regard, or does it see that body as largely irrelevant under Article II and the theory of a “Unitary Presidency?”

And finally, what about qualifications or terms of office enumerated by Congress in law? The qualifications of the director of national intelligence come to mind, as do the set-in-law terms of the FBI director, the IRS commissioner and other like positions. What happens to those? Can Congress legally establish terms or qualifications, or do they become merely suggestions under Slaughter?

By the way, as a practical matter, I’ve seen those technical qualifications ignored by both parties in making presidential appointments, whether they were enumerated in a law or just nice to have. Rather, loyalty to a president is the only real consideration for those appointees.

And that’s my point here. That is NOT the case for career civil servants. They are apolitical, hired strictly based on their technical qualifications — in other words, merit — something that every president has acknowledged, including the present one, via his own Executive Order 14170.

But the main question that Slaughter leaves unanswered is what happens to two other codicils of the Constitution that have been applied to civil servants but NOT to political appointees: That is, the 5th and 14th amendments to that document.

That those career civil servants go through a too-arduous appointment process, including an on-the-job examination to assess those qualifications, as well as their suitability for continued protected status, is a given. And everyone agrees that it is an area desperately in need of reform. But once that protected status is earned, those persons in the “regular” (that is, competitive) civil service acquire property rights in their jobs, rights that cannot be taken away without some due process.

At least that’s what the Supreme Court said way back in 1985, and as far as I know, those constitutional rights continue to exist to this day.

As I said, those rights are grounded in the 5th and 14th Amendments of the Constitution, which guarantee due process before a person can be deprived of life, liberty or property, and they thus ensure that federal employees — again, at least those that are not specifically labeled “at will” — have an opportunity to be heard before any adverse action is taken against them by their government employer.

Having said that, let me be clear: Being “heard” is NOT the same thing as a review by an independent third party. That must be specifically bestowed by law or regulation.

Even Trump’s own OPM has implied as much, issuing guidance in January 2025 saying that career civil servants are duty-bound to follow a president’s policy agenda — I’ll add the law and the lawful orders of their hierarchical superiors —“faithfully” and “to the best of their ability,” but in the words of that same guidance, career civil servants are NOT required to support a president personally or politically.

Thus, in my opinion, once their protected status is earned, those civil servants remain protected by the Constitution.

I’m also certain that that principle, which I have long argued should be codified in law, will be subject to much litigation. But there is one thing I know to be true: Those protections do not apply to political appointees, and to attempt to extend those same Constitutional rights, rights that are grounded in the same high-minded motives as career civil servants, is problematic.

To restate the obvious, political appointees, especially those who come in with a Republican or Democrat presidential administration and thus depart when “We the People” elect someone else into office, operate under different rules. Thus, while it is true that they too serve the public, they do so at the behest and discretion of a particular president, with their “loyalty” to that president and his or her politics a nonnegotiable litmus test for them.

In other words, they come to their positions, and potentially leave them as well, in an “at will” status. They have no due process protection. Nor should they.

What about the political appointees addressed in Slaughter? Prior to that decision, appointees of an opposing political party, that is, those named to their posts by Congress with the intention of providing political “balance,” could only be removed for cause. In other words, according to the law, they were not “at will.”

Not so since Slaughter. That decision essentially deletes that removal requirement for “independent” political appointees, if there ever was such a thing as an independent political appointee, and while I may not agree with it, that’s now the law of the land. However, Slaughter should NOT be automatically applied to career civil servants who are hired on a different premise altogether; that is, on the basis of merit and their technical qualifications, rather than their politics or political loyalty.

To be sure, that distinction is not as clear cut in practice as it may be in theory, as there is lots of gray area between protected civil servants and “at will” political appointees. For example, those in the Senior Executive Service (SES) and individuals now covered by Schedule Policy/Career are squarely in that gray area, and it is not clear whether they are “at will” or protected or something else.

For what it’s worth, I’ve read all the rules and all the decisions in that regard, and that aspect of it, based as it is on fundamental constitutional rights, still isn’t clear to me.

But all that legal mumbo-jumbo notwithstanding, when anyone, including “good government” pundits, Supreme Court justices and civil service experts, starts by equating civil servants and politicos, that just clouds the debate. And it does a disservice to both.

On one hand, career civil servants are supposed to be, and in my experience generally are, apolitical and impartial in nature. On the other hand, political appointees are just what their name implies: They are political! And I don’t just mean that they have a personal political leaning, predilection or point of view. No, I mean political in the “Did you contribute any money to the president’s campaign?” sense.

In that regard, I’ve been interviewed for senior political appointments in both Democratic and Republican administrations, and in all of those cases, that was one of the first questions I was asked by White House personnel officials of both parties. And that “Have you contributed?” question had nothing to do with my technical qualifications — that is, the merits of my appointment — but everything to do with party politics and presidential loyalty.

My response in both cases? I told the inquirers that it was none of their business. As it turned out, that response was a death knell for my appointment, a disqualifying reply — again, in BOTH Republican and Democratic White Houses. That said, I know of at least one candidate for an appointment in a Democrat administration and a close friend, who, when asked that same question, immediately wrote a backdated check to that administration’s campaign to (re)elect their president just to prove his political obeisance.

Bottom line: Political appointees are hired for their political loyalty, nothing more and nothing less; it’s what’s left of the old “spoils system” at work, and in my opinion, a little bit of that system isn’t necessarily a bad thing, so long as it is balanced by the true technical expertise vested in the career civil service. Not by political appointees of opposing political parties, but by career civil servants. And I hope SCOTUS realizes that.

Ron Sanders is a fellow of the National Academy of Public Administration and a retired member of the civil service, with more than 20 years as a member of its Senior Executive Service. Among other career posts, he served as director of civilian personnel at the Defense Department, chief human resources officer for IRS, associate director of the Office of Personnel Management and chief human capital officer for the U.S. intelligence community. The opinions expressed in the above post are his and his alone.

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