Trump’s Union Busting Tests Limits of ‘National Security’ Powers

The collective bargaining rights of more than 1 million federal workers depend on whether President Donald Trump can freely decide which employees across the government conduct what he deems to be “national security” work.

Trump Aug. 29 ended union protections for roughly half the workers at the US Patent and Trademark Office by placing it—along with employees of the National Weather Service and NASA—in the same category as security agencies including the CIA and FBI, expanding a March directive. Trump has stripped organizing rights from workers at more than 40 agencies, touching two-thirds of the federal workforce.

Unions’ lawsuits challenging the orders place before the courts a rarely used exemption to labor laws for civil servants engaged in national security functions and raise new questions about the president’s authority to use that rationale to weaken government workers’ protections.

“Whether collective bargaining is allowed to continue in the federal sector comes down to these cases,” said Nicholas Bednar, an administrative law professor at the University of Minnesota, calling the orders an “existential” threat.

After circuit courts stayed several preliminary injunctions against the March order, the administration began withdrawing from collective bargaining agreements and cutting ties with unions.

The union battle is just one piece of Trump’s campaign to remake the federal workforce. He has fired tens of thousands of workers, gutted whole agencies, and enticed workers to leave through resignation perks. He has eroded civil service protections—firing leaders of independent agencies and the watchdog charged with investigating government workers’ complaints—all while creating new political posts that answer to him alone.

The latest order targeted federal workers who are highly specialized: patent examiners, the NWS, NASA, and the International Trade Administration. The Patent Office Professional Association—the union representing patent examiners—and the National Weather Service Employees Organization fired back at Trump’s order with a lawsuit, saying it violated federal labor law and their First Amendment rights. The National Treasury Employees Union also sued in DC District Court, seeking recourse for the workers it represents in the patent office.

National Security Loophole

Presidents can exempt agencies from federal-sector labor protections, if their primary function is “intelligence, counterintelligence, investigative, or national security work,” and if collective bargaining cannot be applied in line with national security requirements, according to the Federal Service Labor-Management Relations Act.

The carve-out was created by the 1978 Civil Service Reform Act, but legal scholars say the courts haven’t issued a major decision on it since President Ronald Reagan exempted the US Marshals Service.

The US Court of Appeals for the District of Columbia Circuit ruled in its 1989 AFGE v. Reagan decision the president wasn’t required to prove when an agency meets the national security threshold for exemption under the “presumption of regularity,” in which the courts defer to government actions without clear evidence that it violates the law.

Courts will have to choose whether to draw a line on the president’s authority this time around, Bednar said.

David Burton, a legal scholar at the conservative Heritage Foundation, said Trump has a strong case, as the law directly gives the president authority to exempt agencies.

“This one doesn’t strike me as pushing the envelope all that far,” he said. “You can disagree over what is or is not national security, but there’s a pretty clear statutory provision there.”

Unions have accused Trump of wielding the exemption to retaliate against them unlawfully. They contend that many of the affected workers play no role in national security.

“What’s really dangerous is this idea they can use national security to justify anything,” said Tom Krause, former solicitor for the PTO.

Just 26 employees at the PTO, out of more than 14,000, review patents for potential security concerns, POPA said in its complaint.

District court judges have called the administration’s actions “startlingly broad,” and “unprecedented in scope,” in separate preliminary injunctions.

Judge Paul Friedman of the US District Court for the District of Columbia pressed Justice Department attorneys at an April oral argument to explain how agencies like the Federal Emergency Management Agency, the National Institutes of Health, and the Environmental Protection Agency could fall under the national security exemption.

The administration contended that any agency that bolsters the welfare of the nation could be interpreted as contributing to national security and asserted it’s within the president’s authority to make that interpretation.

Trump’s actions are to ensure that agencies can “execute their missions without delay,” White House spokeswoman Taylor Rogers said in a statement.

“Protecting our national security is a core constitutional obligation that President Trump has promised to fulfill and he will not allow potential obstructions to jeopardize his ability to manage agencies with vital national security missions,” she said.

Friedman said in his opinion that the presumption of regularity could be rebutted with evidence that the administration was indifferent towards or intentionally violating the law, which he concluded NTEU had provided.

Free Speech Considerations

Tied within the national security arguments, the unions also say the administration is infringing upon their First Amendment rights.

Shortly after the March executive order, the White House released a fact sheet saying the CSRA “enables hostile federal unions to obstruct agency management.” It also stated Trump will “not tolerate mass obstruction that jeopardizes his ability to manage agencies with vital national security missions.”

Friedman, along with Judge James Donato of the US District Court for the Northern District of California, said in their separate preliminary injunctions that White House statements point to an unlawful motive: punishing unions and their workers for speaking out against the administration’s policies.

“This is a First Amendment case,” said Barry Winograd, a lecturer at the University of California, Berkeley, School of Law. “Even if there is a national security interest—which might be valid in some narrower circumstances—the breadth of their actions, the statements made, and the exclusions from the exemptions all point to the fact that the White House is ticked off at the unions.”