Federal Hiring 'Loyalty Question': What 33,000 Postings Now Require

Last Updated: May 11, 2026 Reading Time: 9 min

Since May 29, 2025, every competitive service federal job posting at GS-5 and above includes four essay prompts. Three are professional self-assessment (Constitution, government efficiency, work ethic). The fourth asks: "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." OPM publicly says the essays are optional. Court filings submitted April 28, 2026 document that many agencies configured the USA Staffing system to mark them required with a red asterisk, blocking submission if left blank. By April 2026, roughly 33,000 federal postings included the questions, 16,000 added in March-April alone. Department of Labor configured them as required on nearly 100% of postings. AFGE, AFSCME, and NAGE filed suit (AFGE v. Kupor, 1:25-cv-13305, D. Mass.) on November 6, 2025 with a preliminary injunction motion pending. Judge O'Toole has not ruled. The constitutional law that controls is older than most federal employees realize: Elrod v. Burns (1976), Branti v. Finkel (1980), and especially Rutan v. Republican Party of Illinois (1990), which extended First Amendment patronage protections to applicants, not just current employees. This is what every federal applicant, and every current employee watching where this goes, needs to know about the legal landscape, the practical dilemma, and the case that will decide it.

Key Takeaways

• 4 essay questions required on all competitive service GS-5+ postings since May 29, 2025; question 3 is the contested loyalty prompt
• OPM says optional, agencies marked required. Red-asterisk required fields documented in court filings April 28, 2026
• ~33,000 postings included the questions by April 2026; 16,000 added March-April alone
• DOL ~100% of postings; DOJ ~75%; DOE ~75% configured as required
• AFGE v. Kupor (1:25-cv-13305, D. Mass.) pending; preliminary injunction motion not yet ruled on
• Rutan v. Republican Party of Illinois (1990) extended First Amendment patronage protections to PROSPECTIVE employees, the hiring-stage threshold is not the defense OPM needs
• 5 USC 2302(b)(1) explicitly prohibits political-affiliation discrimination in personnel actions including hiring

The Four Essay Questions (Verbatim Themes)

#	Topic	Contested?
1	How the U.S. Constitution informs your approach to public service	No
2	How you've made government work better, faster, or more cost-effectively	No
3	How you would help advance the President's Executive Orders and policy priorities	Yes
4	Your personal work ethic	No

Each capped at 200 words. The fourth question is uncontroversial. Questions 1 and 2 are standard professional self-assessment prompts. Question 3 is the loyalty question.

Where the Questions Are Required (April 2026 Court Record)

Agency	Required Configuration
Department of Labor	~100% of postings
Department of Justice (incl. AUSA positions)	~75%
Department of Energy	~75%
Department of Veterans Affairs	substantial portion
Department of Homeland Security	substantial portion
Department of Education	substantial portion
Defense Health Agency	clinical psychologist positions
OSHA	safety specialist positions

By position type (court filings):

• Attorney positions: ~60% required
• IT positions: ~50% required
• General engineering: ~45% required
• HR specialist: ~45% required

The Three Constitutional Tracks

The AFGE v. Kupor complaint runs three independent legal arguments. Any one of them could enjoin the Merit Hiring Plan.

Track 1: Patronage Doctrine (Elrod-Branti-Rutan)

The Supreme Court has built a 50-year wall against patronage-based government employment decisions:

• Elrod v. Burns (427 US 347, 1976): Coercing political pledges to maintain employment violates the First Amendment.
• Branti v. Finkel (445 US 507, 1980): Government may require political affiliation only for positions where party loyalty is an "appropriate requirement" for the job (narrow exception).
• Rutan v. Republican Party of Illinois (497 US 62, 1990): First Amendment patronage protections extend to PROSPECTIVE employees, hiring decisions are subject to the same scrutiny as discipline or termination of current employees.

The Branti exception covers Cabinet secretaries, deputy secretaries, political appointees, and a small number of confidential advisor positions. It does NOT cover the bulk of competitive service career employees: line attorneys, IT specialists, engineers, HR specialists, program analysts. The Merit Hiring Plan applies at GS-5 and up, that sweeps far beyond any defensible Branti exception.

Track 2: Compelled Speech and Viewpoint Discrimination

The First Amendment forbids the government from compelling individuals to express particular political views (West Virginia State Board of Education v. Barnette, 319 US 624, 1943). Asking applicants to identify and endorse specific Executive Orders is a form of compelled speech tied to the viewpoint of the current administration. The same applicant pool would not be asked to identify the previous administration's executive orders they favor.

Track 3: Statutory Violations

• 5 USC 2302(b)(1): "Discriminate for or against any employee or applicant for employment on the basis of political affiliation."
• 5 USC 2302(b)(3): Prohibits coercing the political activity of any applicant or employee.
• 5 USC 2302(b)(10): Prohibits discrimination based on factors not related to job performance.
• Privacy Act (5 USC 552a): Limits the kinds of records federal agencies can compile about individuals; mandatory political-views disclosures may exceed the boundaries of permissible record-keeping.

The Office of Special Counsel initially found no prohibited personnel practice in summer 2025. The unions dispute that finding. OSC's view is not binding on the courts.

What's Different About This Compared to Past Loyalty Tests

Federal loyalty inquiries have a documented history:

• 1947 EO 9835 (Truman): Loyalty Order created the Federal Employee Loyalty Program
• 1953 EO 10450 (Eisenhower): Replaced 9835 with a broader security focus
• McCarthy era 1950-1954: Senate investigations of suspected communists
• 2017 EO 13800 (Trump first term): Limited cybersecurity-focused security clearance reviews

The 2026 Merit Hiring Plan differs structurally:

1. It applies BEFORE hiring, not after, meaning it's not a continuing security clearance question.
2. It asks for affirmative endorsement of specific policies, not just denial of disloyalty (which is what the 1947 program asked).
3. It applies at GS-5+, sweeping millions of competitive service positions.
4. It is administered through automated USA Staffing forms, not in-person investigation.

The legal infrastructure (5 USC 2302, Rutan v. RPI) that didn't exist in 1947 now sets a much higher constitutional bar.

Practical Guidance for Applicants

If you are applying for a federal job and the loyalty question appears:

Option 1: Field is optional (no red asterisk). Submit blank. No legal exposure.

Option 2: Field is required (red asterisk blocks submission). Three sub-choices:

A) Skip the application entirely. Defer until the litigation resolves or the field becomes optional in practice.

B) Write a non-political response. Possible framing: "My approach to advancing any administration's priorities is grounded in faithful execution of the law and the agency's statutory mission. In this role, I would [describe job functions in neutral terms]." This is responsive without endorsing specific EOs or partisan positions.

C) Write an authentic response, document everything, and preserve the record. If you write candidly and you are not selected, your application package and the question itself are evidence for any later 5 USC 2302(b)(1) complaint or class action membership.

Option 3: You are already hired and asked the question on a future internal application or promotion. 5 USC 2302(b)(1) protections apply with the same force. Document. Consult your union (where still recognized) or an employment attorney.

Do not submit obviously political content under your real name without considering the second-order risks: future employers and colleagues may see the application materials, and your written endorsement of specific political positions becomes a public record in some jurisdictions.

Where the Litigation Goes

Date	Event
Jan 20, 2025	EO 14170 directs OPM to develop merit hiring plan
May 29, 2025	Merit Hiring Plan memo issued; 4 essay questions added
Jun 2025	OPM FAQ states essays are "optional"
Aug 2025	OPM training session: agencies must include questions; applicants need not answer
Nov 6, 2025	AFGE, AFSCME, NAGE file AFGE v. Kupor (1:25-cv-13305, D. Mass.)
Nov 19, 2025	Plaintiffs file preliminary injunction motion
Apr 28, 2026	Plaintiffs file supplemental documentation showing red-asterisk required configuration
May 2026	Judge O'Toole has not yet ruled on the PI motion

If Judge O'Toole grants the preliminary injunction, the questions are enjoined nationwide pending case resolution. If denied, the case proceeds to merits, with possible trial in late 2026 or 2027. Either side can appeal interlocutory rulings to the First Circuit.

Calculator and Calculation Resources

This blog topic does not connect to a single FedTools calculator. Related resources for federal employees affected by hiring uncertainty:

• Severance Pay Calculator for current federal employees who lose positions through related actions.
• FERS Retirement Calculator for those weighing retirement vs. continued service in an uncertain political environment.
• VERA/VSIP Decision Calculator for those offered buyouts.

Frequently Asked Questions

What are the 4 Merit Hiring Plan essay questions?

Constitution informing public service; making government work better; advancing the President's EOs (the contested one); personal work ethic. 200 words each, on all GS-5+ competitive service postings since May 29, 2025.

Are the essay questions actually optional?

OPM says optional. Agencies have configured many postings as required with red asterisks blocking submission. The April 28, 2026 court filings documented this gap.

What is Rutan v. RPI and why does it matter?

Rutan v. Republican Party of Illinois (497 US 62, 1990) extended First Amendment patronage protections to prospective employees. Hiring-stage political litmus tests get the same scrutiny as termination patronage. This is the case that controls.

Do I have to answer the loyalty question?

If the field is optional, no. If required (red asterisk), you can skip the application, write a non-political response, or submit and document for later legal challenge.

What is the timeline for the lawsuit?

Filed November 6, 2025. PI motion pending. No ruling yet as of May 2026. District court could rule any time; appeals possible to First Circuit.

Does Hatch Act prohibit this?

No. Hatch Act restricts political activity by current employees, not hiring. The two regimes do not conflict but neither resolves the other.

Related Resources

• VA Vigil + Federal Whistleblower Rights 2026: companion guide on Pickering/Garcetti for current employees
• DOGE NEH Grants Ruled Unconstitutional: related DOGE-era constitutional litigation
• Fired for Photographing DOGE: companion on workplace recording rights
• MSPB 4 Appeal Stages: if your hiring or current employment leads to MSPB appeal
• RIF Survival Guide 2026
• Severance Pay Calculator
• FERS Retirement Calculator

Sources

• Executive Order 14170: Reforming the Federal Hiring Process (90 FR 8621)
• OPM Merit Hiring Plan Resources
• AFGE v. Kupor (1:25-cv-13305, D. Mass.), Democracy Forward complaint
• Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)
• Branti v. Finkel, 445 U.S. 507 (1980)
• Elrod v. Burns, 427 U.S. 347 (1976)
• West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
• 5 USC 2302 (Prohibited Personnel Practices)
• 5 USC 7321-7326 (Hatch Act)
• Office of Special Counsel
• Federal News Network coverage of Merit Hiring Plan
• NARFE: Legal filings show federal applicants must answer loyalty questions