Thanks again to the wisdom of our Founders for Article III federal courts, judicial independence and lifetime tenure on good behavior. Herr TRUMP has no respect for any of that. We in the reality-based community renounce him. and all his works and pomps.
Judge Strikes Down Key Parts of Trump’s Orders Easing the Firing of Federal Workers
By Noam Scheiber
Aug. 25, 2018
A federal district judge in Washington struck down most of the key provisions of three executive orders that President Trump signed in late May that would have made it easier to fire federal employees.
The ruling, issued early Saturday, is a blow to Republican efforts to rein in public-sector labor unions, which states like Wisconsin have aggressively curtailed in recent years. In June, the Supreme Court dealt public-sector unions a major blow by ending mandatory union fees for government workers nationwide. (Federal workers were already exempt from paying such fees.)
The ruling is the latest in a series of legal setbacks for the administration, which has suffered losses in court in its efforts to wield executive authority to press its agenda on immigration, voting and the environment.
The executive orders, which also rolled back the power of the unions that represent federal workers, had instructed agencies to seek to reduce the amount of time in which underperforming employees are allowed to demonstrate improvement before facing termination, from a maximum of up to 120 days to a maximum of 30 days, and to seek to limit workers’ avenues for appealing performance evaluations. The orders also sought to significantly reduce the amount of so-called official time that federal employees in union positions can spend on union business during work hours.
“We are very pleased that the court agreed that the president far exceeded his authority, and that the apolitical career federal work force shall be protected from these illegal, politically motivated executive orders,” Sarah Suszczyk, the co-chair of a coalition of government-workers unions, said in a statement.
In their legal complaint, the unions argued that the executive orders were illegal because federal law requires these rules to be negotiated between government agencies and the unions that represent their workers.
The complaint said that the president lacks the authority to override federal law on these questions, and the judge in the case, Ketanji Brown Jackson, agreed, writing that most of the key provisions of the executive orders “conflict with congressional intent in a manner that cannot be sustained.”
The White House had implicitly sought to pre-empt this critique in the text of the executive orders, styling the provisions as mere goals that the federal agencies should try to bring about through bargaining with the unions rather than unilateral mandates.
But Judge Jackson flatly rejected this maneuver, arguing that the law requires agencies to negotiate in “good faith” and that the executive orders “impair the ability of agency officials to keep an open mind, and to participate fully in give-and-take discussions, during collective bargaining negotiations.”
The White House, facing the latest in a proliferation of high-profile legal challenges, did not immediately respond to a request for comment.
Courts have blocked its effort to shut down a program that shields some 700,000 young undocumented immigrants from deportation and to deny federal money to so-called sanctuary cities, which limit cooperation with federal authorities about a person’s immigration status. They have allowed challenges to the administration’s bid to add a question about citizenship to the census to proceed. And they have repeatedly blocked the administration’s attempts to roll back environmental regulations.
An appeals court has stalled the administration’s prohibitions on transgender people serving in the military, and a federal court ruled this year that Mr. Trump violated the Constitution by blocking several people on Twitter.
The administration also lost a series of cases in the lower courts on President Trump’s executive order barring travel from a number of predominantly Muslim nations. But it won a major victory in June when the Supreme Court sustained the order by a 5-to-4 vote.
In announcing the executive orders, White House officials had portrayed them as a way to improve the functioning of government.
“These executive orders will make it easier for agencies to remove poor-performing employees and ensure that taxpayer dollars are more efficiently used,” Andrew Bremberg, head of the White House Domestic Policy Council, said on a call with reporters in May.
Many experts on government bureaucracy agree that it can be too difficult to fire civil servants, but they say that the administration went significantly further than was necessary to achieve its stated goal.
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“Very clearly the administration is trying to do all it can to weaken the role of public employee unions,” Donald F. Kettl, a professor of public policy at the University of Texas at Austin, said in an interview at the time. “It’s part of a far broader strategy, that’s in many ways bubbling up from the states, to turn the civil service into at-will employment.”
The Trump administration will most likely appeal the decision to a federal circuit court, and could then appeal to the Supreme Court if it loses there.
The orders, which were put in place across the government in July, had begun to create an atmosphere of fear among workers at many federal agencies.
“Employees are really frightened,” said Loni Schultz, a union official representing workers at the Social Security Administration in the Midwest. “They’re frightened about losing jobs. They have house payments, car payments, child care.”
Union officials had particularly chafed at the official time provisions of the executive orders. The White House, calling the practice “taxpayer-funded union time,” had portrayed it as a boondoggle in which government employees were paid to advance the political aims of their unions while shirking their official responsibilities. The executive order had sought to cap union time at 25 percent of an employee’s work hours.
But union officials argued that they spent most of their official time defending fellow employees against unfair or arbitrary treatment by their supervisors. After the orders were carried out, many spent dozens of hours each week outside of work addressing questions and concerns from fellow workers.
Judge Jackson found that the relevant executive order “completely reconceptualizes” the right of the unions to negotiate for official time even though Congress had specifically sought to protect that right.
Among the other provisions that Judge Jackson struck down were those instructing the agencies to stop negotiating with unions over key workplace issues, such as the number of workers assigned to a subdivision of an agency or a particular project and the type of technology used to perform work.
But she did hand the administration a handful of small victories, leaving intact portions of the executive orders that inform the agencies they must reject any proposal limiting their discretion in firing a worker without first taking set of disciplinary actions, and urging agencies to consider imposing contract proposals unilaterally if a union delays in bad faith during negotiations.
Federal law “plainly authorizes such filings in appropriate situations,” she wrote.
Sharon Block of the Labor and Worklife Program at Harvard Law School, who is a former senior Labor Department official and National Labor Relations Board member during the Obama administration, called the decision a “stinging rebuke.”
“Judge Jackson reminds us that it is in fact the policy of our laws that public sector public bargaining is in the public interest,” she said.
Adam Liptak and Michael D. Shear contributed reporting.
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