Under the U.S. Constitution and federal statutes, the President ultimately controls executive branch personnel decisions, including SES classifications, through OPM oversight. However, agencies have some input via statutory restrictions and internal regulations. The memo reflects a shift toward greater presidential influence over executive personnel, particularly in policy-related roles, reinforcing the President’s broad authority over the executive branch.
When OPM asserts that it "will not approve SES plans that propose career-reserved positions outside this new guidance without strong justification," it raises a serious constitutional and legal question about whether this action is grounded in statutory authority or if it is an overreach.
? If OPM is acting under a direct presidential order, then the President has the constitutional authority to oversee SES personnel policies.
? If OPM is making this decision on its own without citing specific statutory authority, it is an overreach and legally questionable.
? For this statement to be legitimate, it must reference the precise law or regulation that grants OPM the power to reject SES plans.
? Otherwise, it is bureaucratic double talk, attempting to impose a policy with no legitimate legal foundation.
?? Bottom Line: OPM must either cite a statutory basis for this decision or defer to the President’s executive authority—otherwise, it is an unconstitutional overreach.
- Statutory restrictions are valid only if enacted by Congress and signed by the President.
- Internal regulations are valid only if authorized by statute and consistent with the President’s constitutional authority.
- Any regulation or restriction that lacks constitutional or statutory support is ultra vires and unenforceable.
- Ultimately, the President holds the constitutional authority over executive branch personnel, including SES positions, unless Congress lawfully restricts that power within constitutional limits.
- Overreach of Authority? The U.S. Office of Personnel Management (OPM) is an executive agency, meaning it derives its authority only from statutory delegation by Congress or direct executive authority from the President. If OPM unilaterally imposes a restriction without citing the specific statute or regulation that grants it such power, this could be seen as an ultra vires act—beyond its legal authority. If there is no explicit statutory basis for OPM to refuse SES classifications except under presidential direction or statutory mandate, then this is nothing more than bureaucratic double talk attempting to impose unauthorized policy.
- Constitutional Concerns Article II, Section 1 of the Constitution vests the executive power in the President, meaning that final decisions regarding executive personnel fall under the President’s authority—not the independent discretion of an agency like OPM. The Supreme Court has ruled that executive branch personnel policies are subject to presidential control unless Congress lawfully restricts that control (e.g., Myers v. United States, 1926; Seila Law v. CFPB, 2020). If OPM’s refusal to approve certain SES classifications is not explicitly backed by a valid statute, then it is acting outside the bounds of both congressional authority and presidential power, making it constitutionally suspect.
- Double Talk Without Statutory Reference The lack of a clear citation to specific statutory restrictions or regulations in the memo suggests that OPM is making a policy-based assertion rather than an enforcement of a lawfully enacted rule. The phrase "outside this new guidance" implies that the restriction is based on OPM’s own policy, rather than a lawfully enacted statute—which is not legally binding unless properly authorized. If this "guidance" is simply an internal directive without a statutory foundation, it cannot override executive authority and should not be used as a justification to block agency SES plans.
Peter Clarke Retired - Distinguished Entrepreneur - Global Facilitator - Transforming Business Landscapes - Author & Social Commentator Fostering Change -Your Success is My Business
2 天前https://www.opm.gov/policy-data-oversight/latest-memos/