“Loyalty hiring” is politicizing the civil service. It’s illegal.

American Federation of Government Employees et al. v. Office of Personnel Management et al

On November 6th, 2025, Protect Democracy, alongside Democracy Forward and Keker, Van Nest & Peters, filed suit against the Office of Personnel Management (OPM) and the Trump administration on behalf of AFSCME, AFGE, and NAGE over OPM’s “Merit Hiring Plan.” 

Background

Background

On May 29th, 2025, following President Trump’s Executive Order 14170, Reforming the Federal Hiring Process and Restoring Merit to Government Service, the Office of Personnel Management (OPM) announced its so-called “Merit Hiring Plan” that, among other things, requires a short, free-response essay question to be added to non-political federal job listings. The question is below:

“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.”

This suit argues that the Merit Hiring Plan, and the inclusion of this “loyalty question” in non-political job postings, violates the First Amendment by:

  • Imposing an unconstitutional condition on employment, creating a hiring system where applicants are identified and selected on the basis of professed political beliefs and loyalties.
  • Enabling unconstitutional content-based viewpoint discrimination, because government officials — who have unfettered discretion to utilize the answers to the Loyalty Question in hiring — are likely to use it to hire candidates based on the candidates’ political views toward President Trump.
  • Unconstitutionally compelling speech by effectively requiring applicants to convey their political beliefs and views and coercing them into voicing allegiance to this administration’s political agenda, regardless of an applicant’s views.
  • Unconstitutionally chilling the speech of potential applicants who are interested in new job postings but refuse out of principle to feign support for the administration or to voice political views at all.

The inclusion of this question also violates the Administrative Procedure Act: It is arbitrary, capricious, and contrary to law, including because it collects unnecessary, irrelevant information about applicants’ First Amendment activities that the Privacy Act protects.

For decades, the United States has had a strong non-partisan civil service made up of experts dedicated to serving the American public. This goes beyond agreeing or disagreeing with the President’s agenda: it’s about protecting the quality of our civil service and upholding the First Amendment, not favoring political loyalty to the detriment of the American people.

Plaintiffs

Plaintiffs

  • American Federation of Government Employees (AFGE)
  • American Federation of State, County and Municipal Employees (AFSCME)
  • National Association of Government Employees (NAGE)

The union plaintiffs seek to:

  • Ensure that their members make informed decisions about their current and potential employment.
  • Make sure that the ability to make those decisions is not compromised by an unconstitutional, unlawful, and wholly arbitrary loyalty test.
  • Vindicate the First Amendment injuries suffered by their members as a result of the Merit Hiring Plan.
Defendants

Defendants

  • Scott Kupor, in his official capacity as Director of the Office of Personnel Management
  • Office of Personnel Management (OPM)
  • United States of America
Case documents

Case Documents

Learn more by signing up for our “Dear Civil Servant” newsletter series on Substack here.