On Sunday, Alabama attorney general Steve Marshall signed onto an amicus brief in American Federation of Government Employees, AFL-CIO et al v. Ezell et al. Quickly filed by the AFGE and the American Federation of State, County and Municipal Employees, or AFSCME, on Feb. 4th, the lawsuit is a response to the so-called “Fork in the Road Directive.”
A Jan. 28 email sent to all federal government workers by the Office of Personnel Management told them that if they resigned by Feb. 10, the civil servants would receive “all pay and benefits regardless of your daily workload and will be exempted from all applicable in-person work requirements until September 30, 2025.”
Soon after the email was sent out, experts and journalists noted that the subject line of the mass email (“Fork in the Road”) was identical to the subject line of a very similar email Elon Musk sent to employees of social media company X Corp., formerly Twitter, last year.
As the head of the Department of Government Efficiency, a temporary organization established by one of Trump’s day one executive orders, Musk has directed equally audacious and possibly illegal “cost cutting” initiatives across the federal government, typically announced by brief posts from his X account.
Most recently, every employee of USAID, the U.S. Agency for International Development, was put on indefinite administrative leave and employees of the Consumer Financial Protection Bureau were told to “please … not perform any work tasks.” The USAID inspector general reports that the administrative leave order has put hundreds of millions of dollars worth of food assistance at risk of spoiling and is undermining necessary oversight programs.
These actions have drawn significant criticism from Democratic politicians and legal experts who believe that Musk and other Trump appointees are overstepping their legal and constitutional bounds. Alabama Congresswoman Terri Sewell recently led a letter to the IRS’ acting commissioner questioning Musk and DOGE’s seemingly unchecked access to the Treasury’s payment system, arguing that “an unelected billionaire has absolutely no business handling the personal information of American taxpayers.”
Speaking from the Senate floor on Jan. 28, Senator Tim Kaine, D-Virginia, read from the email and declared that Trump “has no authority to make that offer.” Traditionally buyouts for federal employees are governed by the Homeland Security Act of 2002 and limited to a maximum of $25,000.
The January offer, though, both isn’t a traditional lump sum payment and would almost certainly cost the federal government significantly more than $25,000 per resignation. The email seems to suggest employees who accept the offer would get paid for eight months without significant work requirements.
“If you accept that offer and resign, he’ll stiff you,” Senator Kaine told federal employees. AFGE President Everett Kelley similarly told the Associated Press that he thinks the offer is “a scam and not a buyout.”
The complaint filed by the AFGE and the AFSCME states that the “continued success of government is based, in large part, on the institutional memory of its career civil servants who are committed to the missions of their agencies and the prospect of working for the American people.”
Writing in the digital publication Lawfare, University of Minnesota law professor Nick Bednar said the offer threatens to “significantly diminish the capacity of programs enjoyed by ordinary Americans,” identifying flights, national parks, and even the implementation of Trump’s policy goals as all potentially at risk.
The unions’ complaint also alleges that the initiative is “arbitrary and capricious” and “contrary to law,” pointing out that the “OPM has offered no statutory basis for its unprecedented offer” and the email seemingly authorizes significant expenditures after the latest continuing resolution expires. It quotes Article I of the Constitution: “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
The attorneys general’s amicus brief takes refuge in Article II and the sentence stating that “[t]he executive Power shall be vested in a President.” Citing the Supreme Court decision that gave presidents immunity from civil damages resulting from official acts, the AGs argue that “Trump is exercising his constitutional authority to manage the federal workforce.”
However, ever since President Chester A. Arthur signed the Pendleton Civil Service Act of 1883, an increasing number of federal civil servants have been protected from arbitrary dismissals on political grounds.
Congress has even placed limits on the firing of high level appointees at agencies like the National Labor Relations Board and posts like inspector general, either by creating fixed terms with no mechanism for dismissal or requiring notice to Congress well in advance. The Trump administration has repeatedly and openly ignored these restrictions while firing Democratic appointees in recent weeks, leading to several other ongoing lawsuits.
Apparently either not concerned or convinced by the possible illegality of the “Fork in the Road Directive,” Marshall called the order “a vital step toward restoring accountability and efficiency in our federal government” in a Monday press release and said “President Trump has the clear constitutional authority to manage the federal workforce.”
“The American people have demanded a leaner, more effective government, and we stand firmly in defense of this directive to ensure that taxpayer dollars are used responsibly,” Marshall stated.
After a hearing in the case yesterday, U.S. District Judge George O’Toole pushed back the deadline for federal employees to accept the deal.
According to Trump administration lawyers, 65,000 government workers, or about 3 percent of the federal workforce, have accepted the “Fork in the Road” offer so far. Although, how many would have retired or sought employment elsewhere within the next nine months even if the offer had never been sent out remains unclear.
