Unions’ Layoffs Suit Is Next Major Hurdle for Trump Firing Plan

President Donald Trump’s overhaul of the federal workforce is reaching a fork in the road.

His executive orders directing agencies to cut staff and loosen protections for federal workers have spurred more than a dozen lawsuits playing out in courtrooms from California to Boston, charting the course for a series of Supreme Court battles that could both cost thousands of federal employees their jobs and defang some of the president’s most aggressive policies.

The high court is expected to be asked to weigh in on a case brought by the American Federation of Government Employees and others over Trump’s attempt to purge tens of thousands of government workers—the most expansive challenge to Trump’s federal workforce cuts so far. Judge Susan Illston of the US District Court for the Northern District of California last week issued a preliminary injunction, extending a freeze on the layoffs while the case proceeds.

Trump’s lawyers have appealed the case to the US Court of Appeals for the Ninth Circuit, though attorneys predict the nation’s highest court will ultimately decide it. Even a temporary reprieve from the appeals court could allow officials to fire thousands of workers in a way that would be hard to reverse.

“From the government reorganization standpoint, this is the big case,” said Rushab Sanghvi, AFGE general counsel. “It’s the only case attacking this from a 1,000-foot perspective.”

The Trump administration has tried to terminate more than 30,000 employees from agencies ranging from the Department of Education to Health and Human Services. At various times this year some of those employees have been reinstated and re-fired as courts debate whether the government followed civil service laws that dictate workers’ protections. The AFGE has argued in court that Trump plans to lay off hundreds of thousands more at the departments of Labor, State, Defense, Energy, and others.

On High

Trump’s advisers are projecting confidence that they have a friendly venue with the Supreme Court, with three of the nine current justices appointed by the president.

“At the end of the day, wherever they’re at, they’re going to be successful when they get to the Supreme Court,” Office of Management and Budget Director Russell Vought told reporters May 22 when asked about a potential appellate loss in AFGE’s challenge.

Trump’s inner circle has attacked the credibility of federal judges who rule against the administration. That intensified last week after several unfavorable rulings, including when Judge Brian Murphy of the US District Court for the District of Massachusetts said the administration had “unquestionably” violated an order related to deportation.

“It’s truly despicable what’s happening in our court system, and the president and this administration hope that the Supreme Court will do what it needs to do to rein in these liberal activist judges,” White House Press Secretary Karoline Leavitt told reporters May 22.

The Trump administration has made a habit of asking the high court to intervene through emergency appeals, bypassing lower courts. That’s an unusual and “amazing act of appellate practice” and a sharp departure from the norm, said Craig Green, a professor at Temple University Beasley School of Law.

The conservative majority last week blocked the reinstatement of two independent agency officials, Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board, who had both been fired before their terms were up. It’s another sign that the six Republican-appointed justices are comfortable chipping away at Congress’ authority to restrict presidential power over independent agencies, set out in the high court’s 1935 decision in Humphrey’s Executor v. US.

The justices’ ruling notably exempted the Federal Reserve, calling it a “uniquely structured, quasi-private entity.”

“That case is going to be the most dramatic administrative law case in 80 years, for sure,” Green said.

The Supreme Court has aided Trump this year, granting the president’s request to block a California judge’s order that the government rehire 16,000 fired probationary workers at the departments of Agriculture, Defense, Energy, Interior, Treasury, and Veterans Affairs.

The stakes in the AFGE case are even higher. In a filing to the Supreme Court this month—part of a request to overturn an earlier temporary order from Illston—Trump’s attorneys said the temporary freeze had halted 40 planned layoffs across 17 agencies, affecting thousands of positions.

The consequence, they said, was thousands of unnecessary employees remaining on payroll “at unrecoverable taxpayer expense.”

Wins and Losses

If the Ninth Circuit sides with Trump, other lawsuits still allow the courts to rule more narrowly on subgroups of federal workers.

The state of Maryland and AFGE have sued to block the administration’s firing of probationary workers, though the Fourth Circuit has allowed the terminations to continue for the time being.

Federal-sector unions suffered a blow earlier this month when the US Court of Appeals for the D.C. Circuit allowed the Trump administration to proceed with a ban on most federal labor contracts, staying a district court order that had blocked the directive.

Judge Myong Joun of the US District Court for the District of Massachusetts ruled against the administration’s mass firing of thousands of US Department of Education employees last week, calling it an underhanded attempt to circumvent Congress.

Trump’s past statements “abundantly reveal” that his true intention is to “effectively dismantle the department without an authorizing statute,” Joun wrote, validating Trump’s opponents. The administration has filed an appeal.

Three thousand miles away, Illston heard arguments for extending a freeze in the high-level case on mass layoffs, granting the union plaintiffs’ request.

“Defendants want the court to either declare that nine presidents and twenty-one congresses did not properly understand the separation of powers, or ignore how the executive branch is implementing large-scale reductions in force and reorganizations,” Illston wrote. “The court can do neither.”