Since taking office in January, President Trump has waged an all-out assault on the federal workforce. The attack is multi-pronged and raises a dizzying number of statutory and constitutional questions—everything from how reductions in force must be conducted under the relevant civil service laws to whether the Supreme Court’s precedent in Humphrey’s Executor, which protects members of independent, multi-member regulatory agencies from at-will removal, violates Article II of the U.S. Constitution. Here, I focus on a front in this war that has received comparatively little attention, but that is just as consequential for the future of the executive branch: President Trump’s war on federal sector unions.
The Origins of Federal Labor Unions
A bit of background: Under the Civil Service Reform Act of 1978, many federal civil servants have the right to join unions and to collectively bargain over the “conditions” of their “employment.” As I’ve explained elsewhere, this right can check presidential abuses and influence agency operations in a number of ways. Everything from how immigration judges decide cases to how effectively the EPA can regulate environmental risks depends, in part, on federal labor law. Federal labor law is complex, but on a basic level, unions organized under the CSRA check presidential power in three ways.
First, labor law allows unions to push back on what Jody Freeman and Sharon Jacobs have called “structural deregulation”—essentially, attempts by the President to disable agencies whose missions he opposes by imposing burdensome working conditions. Agency heads might change work assignments, require office relocations, or deprive civil servants of needed resources in order to prevent an agency (say, the EPA or the Department of Labor) from carrying out its mission effectively. These day-to-day working conditions are the types of issues that unions bargain over routinely, and as a result, unions often form the last and most important line of defense against presidential sabotage of an agency’s mission. Many unions, for instance, bargain over issues like staffing levels, work hours, and the availability of overtime and backpay, which affect the ability of staff to perform their jobs effectively.
Second, Presidents may seek to influence agency decision-making more subtly through management tools. Take immigration courts, for example. Immigration judges adjudicate removal proceedings for immigrants facing deportation. Many of these immigrants may lack legal counsel and have a limited understanding of the rules governing removal. A good immigration judge may take time to help explain the proceedings or to elicit important evidence from the respondent by asking probing questions. This can allow the judge to build a record and deny removal in cases where the immigrant might not otherwise have been able to defend herself. Presidents looking to increase the rate of removal (say, to deliver on promises of more aggressive immigration enforcement) may bury immigration judges in cases so they can’t take the time they need to assist respondents. Or they might tweak performance evaluations to discourage grants of leave to remain. Unions can and do bargain over management tools like these, often over presidential objections.
Third, and finally, by enabling the formation of unions, the CSRA allows civil servants to pool resources and organize effectively around a range of issues related to the federal workforce. Unions, for example, cultivate a sophisticated bar of labor attorneys that litigate both labor issues and a wide range of other issues that arise under civil service laws, anti-discrimination laws, and the U.S. Constitution. In addition to litigation, unions also have publicity and lobbying operations, bringing to public attention presidential tactics for influencing federal policy. As research has shown, formal rights have value—but they have much more value when they are vested in well-organized, well-resourced groups with the means to vindicate them. Unions provide such rights for federal workers, who often wield them in ways in that protect public services and help to protect congressional initiatives from presidential subversion.
For all these reasons, President Trump has targeted federal unions for nearly a decade. During his first administration, he deployed a range of tactics to hamper and disable federal sector labor rights—from issuing executive orders directing agencies not to negotiate on a range of workplace issues, to preventing union officials from using work hours to pursue union goals, to unilaterally rescinding contracts at disfavored agencies like the Department of Education, to seeking the decertification of certain unions on legally dubious grounds. These tactics met with mixed success. But the consensus among Trump I alumni appears to be that they did not go far enough in curtailing supposed bureaucratic “resistance” to the President’s administration. And indeed, many high-profile alumni of the first Trump Administration spent the Biden Administration developing a set of legal arguments in favor of even harsher restrictions on federal labor.
The Constitution and Federal Labor Unions
As with other areas of federal law, this time around is different for labor. In his second term, President Trump is eschewing many of the incremental tactics (harsh as those were) that he pursued in his first term to hobble unions. The goal this time appears to be full-scale demolition of the federal labor movement. The administration has pursued a wide range of strategies to undermine unions. Among the most important are unilaterally rescinding major collective bargaining agreements at large agencies, like the TSA; leaving key posts at the Federal Labor Relations Authority (FRLA), such as General Counsel, vacant, thus preventing it from enforcing key provisions of labor law; and firing the Democratic Chairwoman of the FLRA in violation of federal law. Most dramatically, the President has purported to exclude an enormous number of federal civil servants (estimates range upwards of 700,000) from bargaining rights altogether, relying on an obscure provision of labor law that restricts labor rights in certain sensitive national security posts.
Each of these moves raises different technical issues under federal labor law. I and others have written elsewhere about why the President’s use of national security exclusions, in particular, appears spurious. But while the specific labor questions are important, focusing too narrowly on them risks missing the forest for the trees. Rather than litigating specific contractual or statutory issues, here I focus on the broader constitutional and democratic stakes of the President’s war on federal labor.
President Trump and his leading personnel advisors appear to view most, if not all, federal labor rights as unconstitutional infringements on the President’s Article II authority to wield the “executive power” and to “take care” that federal law is “faithfully executed.” This is a particularly muscular version of the unitary executive theory, though its core premises aren’t all that different from other versions: they rest on the belief that any check on the President, from any “unelected” member of the executive branch, is an unconstitutional and undemocratic restraint on the President’s ability to deliver his agenda on behalf the people.
But both these constitutional and democratic objections overlook key, legitimating aspects of federal labor law:
As a matter of constitutional law, federal labor law does not undermine presidential authority in the way its opponents contend. First, labor protections are narrow in scope. Under the CSRA, only federal “employees” can organize and bargain collectively. “Employee,” as that term is defined, excludes the President’s political appointees, as well as members of the Senior Executive Service, who make up most of the federal government’s managerial core. In fact, anyone who exercises “supervisory” authority over other workers is excluded from bargaining protections. The protections thus don’t reach the categories of workers that participate regularly in the formulation of high-level agency policies. Instead, they cover primarily front-line workers—everyone from scientists, economists, and litigation attorneys to prison guards and park rangers. These positions are key to ensuring that the laws Congress has written are faithfully executed by competent staffs, but don’t formulate the types of policies that we usually think of as presidential prerogatives.
Second, to the extent that specific contractual provisions do impact policy, federal law has built in robust protections for presidential discretion. The CSRA contains provisions that prohibit collective bargaining agreements from infringing on the President’s “management rights,” including the right to determine the agency’s “mission, budget, organization, number of employees, and internal security practices.” When the workplace rights of civil servants conflict with the policy initiatives of the President, the CSRA provides a comprehensive adjudicatory structure for hashing out the dispute—ensuring that the rights of labor and the need to preserve state capacity are balanced against the political prerogatives of the Chief Executive. Moreover, the CSRA gives the President additional discretion to exempt otherwise protected workers from collective bargaining when doing so is necessary to protecting vital interests like “national security.”
Rather, and contrary to the arguments of many unitary executive proponents, unions further the legal and democratic accountability of the executive branch.
Tradeoffs in the Administrative State
First, it is simplistic to suggest that federal labor rights limit presidential power, while eliminating unions expands it. Bargaining might limit the President’s ability to micromanage (and manipulate) the lower reaches of the federal bureaucracy. But in exchange, the protections and autonomy provided by enforceable labor agreements allow the President to recruit skilled workers in a variety of fields (scientists, doctors, attorneys, economists, and experts in dozens more areas) to work for the executive branch, providing valuable skills for much lower pay than they would earn in the private sector. This expanded recruitment pool gives the President power to deliver on key campaign promises in areas ranging from environmental protection to national security. Labor rights thus represent not a diminution of presidential power, but a tradeoff of one form of presidential power (managerial) for another (expanded state capacity). Conversely, undermining labor agreements doesn’t really expand presidential power—it simply swaps out one form of policy-implementing presidential power for another.
Such loyalty-competence tradeoffs (or control-capacity tradeoffs) have been documented in other areas of executive branch policy. And at least in the area of civil service unions, historical evidence suggests that presidents prefer the expanded capacity of a robust civil service to the narrower power to micromanage lower-level workers. Indeed, one surprising aspect of the history of federal sector bargaining is that it was begun largely on the initiative of presidents themselves, the unions’ ultimate counterparty. President Kennedy first authorized civil servants to join unions and bargain by executive order in 1962, rights subsequently expanded by other presidents until being formalized by the Civil Service Reform Act of 1978 at the urging of President Carter.
Presidents repeatedly explained that these expansions of bargaining rights were necessary to recruit skilled workers (especially knowledge workers) to the executive branch, and thus to meet the increasingly labor- and skill-intensive demands of the modern presidency. As a major government reform commission explained in 1955, “[t]he Federal Government ha[d] lagged behind other organizations in recognizing the value of providing formal means for employee management consultation,” and as a result had failed to attract the white-collar workers it needed for more knowledge-intensive public administration. In short, the unitarist argument that labor rights undermine presidential power is both simplistic and short-sighted: labor rights offer the executive a different, more valuable form of power that is arguably necessary for modern presidents to deliver on their campaign promises.
Second, labor rights also provide presidential-bureaucratic relations a more transparent, legally accountable structure than they would otherwise have. Absent an absolutely catastrophic loss of state capacity, the executive branch needs to employ millions of people across a wide range of fields to implement public policy. A bureaucracy of that size and complexity will inevitably pose difficulties in terms of oversight and political control: There is only one president, and he has only a limited ability to monitor and control individual civil servants at any given point in time. Thus, regardless of how much formal power the president has, oversight breakdowns and tensions between the desires of the President and the interests of the bureaucracy are bound to arise. This is not an issue of constitutional law, but a reality of large-scale organizational management.
The question is what form these tensions and breakdowns will take. In poorly regulated systems without well-defined worker rights, bureaucrats might express displeasure with the president through various forms of quasi-legal “resistance” (for example, shirking duties, leaking to the press, or performing their job functions in manner designed to hinder presidential objectives). Presidents might assert managerial authority through threats, abuses, and preferential treatment of political allies. In short, the ordinary disputes that arise between labor and management would work themselves out through opaque, inefficient, and often counter-productive conflicts that would be impossible for democratic institutions to effectively monitor.
In a bureaucracy with well-defined labor rights, by contrast, agency heads and workers bargain over points of contention, reduce agreements to written contracts, and litigate disputes before formal arbitral bodies. The President and his agency heads can negotiate and litigate conflicts openly; administrative judges and Article III courts can supervise disputes; and Congress can amend statutes to alter the balance of labor and management rights to address any perceived imbalances. In other words, bureaucratic disputes that would otherwise be opaque and unregulated are instead managed and overseen by all three branches of federal government, with ample room for the President to vindicate his managerial rights and press his policy objectives.
In short, labor rights expand, rather than limit, the President’s ability to deliver on his political priorities. And they do so in a manner that is much more legally structured and democratically accountable than any of the likely alternatives.
