Agencies Directed to Map Out Restructuring and Staffing Cuts

The February 11 executive order that could reduce federal staffing by as much as 75% also contains a provision for agency heads to report on statutorily required activities. The point of such analysis (bit.ly/4gDEmf6) is stated as:

"Within 30 days of the date of this order, Agency Heads shall submit to the Director of the Office of Management and Budget a report that identifies any statutes that establish the agency, or subcomponents of the agency, as statutorily required entities. The report shall discuss whether the agency or any of its subcomponents should be eliminated or consolidated."

Although independent agencies like CPSC traditionally have been deemed exempt from most executive orders and left alone by presidents if not voluntarily complying, the atmosphere in Washington cannot be analyzed through lenses of precedent and custom. Indeed, the situation stems from opposition to such conventions, and many see a wider goal of setting up catalysts for eliminating unwanted precedents via judicial review, congressional action, or acquiescence by both.

A prominent and recent example – pertinent in the goal of unilateral government downsizing by the president – is a desire to eliminate the 1974 Impoundment Control Act. That law sets boundaries on a president's refusal to spend money authorized by Congress. The dispute is whether the law enforces the congressional "power of the purse" or infringes presidential power to control the executive branch. It also is over whether congressional appropriations are spending mandates or simply ceilings that do not need to be reached at a president's discretion.

The law is being cited in some legal challenges to recent executive orders. Meanwhile, Sen. Mike Lee (R-Utah) and Rep. Andrew Clyde (R-Ga.) February 11 said they were reintroducing bills to repeal the law. Both described it as unconstitutional. They sponsored such bills last session.

This atmosphere means that even if CPSC had grounds to refuse the order, it would be taking two risks. First, it would cede the opportunity to have a say in its future when agency deconstructions are occurring unilaterally and with a "break things and move fast" ethic. Second, it might prompt set-an-example retaliation. Independent status so far has not been protection against actions to dismantle out-of-favor agencies. USAID and CFPB are independent agencies.

Setting aside independence, the order gives public safety work as an exemption, including for staff cuts. The convention is that CPSC's mission is public safety since the CPSA speaks of protecting the public from "unreasonable risks."

The question is how many CPSC staff are necessary for public safety. The order directs possibly 75% staffing reductions via a calculation that four staffers must be eliminated before one can be hired. Among criteria for choosing positions in line for potential elimination is whether they are not "essential" during a government shutdown. CPSC's 2024 overview (bit.ly/4gJ3L7b) of its funding lapse plan showed that only 88 of 561 staffers would work during a closure. As for direct safety work, it was murky, listing 65 positions for protecting either human safety or agency property.

Semantics also arise. Is not essential a synonym for unnecessary and therefore extraneous? Not necessarily. Shutdown staffing supports a temporarily curtailed set of duties not the overall mission. Thus, at CPSC, typically only heads of offices remain without any staff support, but there can be ability to bring back limited staff if certain needs arise.

In any event, the order does not direct that staff be eliminated if not deemed shutdown "essential." It uses that designation among others as parameters to sort positions that must not be eliminated from those that can be. Thus, "essential" could be a floor not ceiling. How many should stay presumably would be a matter of fiduciary duty to CPSC's mission.