Executive Orders & the Force of Law: How Federal Unions’ Suit May Be Doomed

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By on June 25, 2018 in Human Resources with 0 Comments

Judge's gavel on a stack of law books against a white background

Bear with me for a bit. As all readers of my articles know, I’m not a lawyer so where I’m going in this article may be met with derision, dismissal or plain old laughter, but I can read and have been doing so a bunch of late.

I also am going to cheat some, as I was taken by a presentation by my old friend Bill Wiley and a follow up conversation with him. You too can be influenced by Bill. Check out the FELTG website.

You’d have to be hanging out on North Korean farm not to know that President Trump issued three Executive Orders relating to Federal labor and employee relations. The Orders immediately got him sued by most, if not all, of the unions representing Federal employees. Sooner or later, I think the lawsuits will fail and will try to explain why below.

Relevant Portions of the Constitution

Never having quoted the Constitution before either in arguments or articles, I know it’s a big leap. Article 2 establishes the executive branch of the federal government, which carries out and enforces federal laws. The executive branch includes the President, the Vice President, the Cabinet, executive departments, independent agencies, and other boards, commissions, and committees.

Section 1. Says “The executive Power shall be vested in a President of the United States of America.” Section 3. (in part) says “…he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.” (My Emphasis)

The Congress in its inestimable brilliance enacted these two (plus more) provisions authorizing Agencies to do stuff:

  • “5 US Code 301. “The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.” and,
  • 5 US Code 302 (a) For the purpose of this section, “agency” has the meaning given it by section 5721 of this title. (b)In addition to the authority to delegate conferred by other law, the head of an agency may delegate to subordinate officials the authority vested in him by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency; and…”

The American Bar Association in its Insights on Law and Society Winter 2015 Volume 15, No. 2. Said:

Executive orders are not legislation; they require no approval from Congress, and Congress cannot simply overturn them. Congress may pass legislation that might make it difficult, or even impossible, to carry out the order, such as removing funding. Only a sitting U.S. President may overturn an existing executive order by issuing another executive order to that effect.

Still With Me?

FLRA Decision on Executive Orders

In 1988, the Federal Labor Relations Authority (FLRA) made a decision (NFFE v. Army, 30 FLRA 1046) holding that “… we find that because the Executive Order was issued pursuant to the President’s statutory authority to regulate the civil service, it has the effect of law within the meaning of section 7117(a)(1).” On appeal the DC Circuit in 890 F.2d 467 (December 1, 1989), sustained FLRA’s ruling.

5 U.S. Code §7117(a)(1) states “Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.”

We know:

  • A government-wide regulation can’t trump a collective bargaining agreement during its life;
  • A statute can; and,
  • An Executive Order can’t trump a statute.

Where Does an Executive Order Fit Into Our Legal Scheme?

What’s not clear to many in this litigious world we inhabit is where, exactly, an Executive Order fits in.

FLRA knew exactly its scope and effect in 1988, and the D.C. Circuit appeared to also. It has the same effect as the enactment of a statute unless it contradicts that law.

So what does the concept of “force of law” mean in regard to these orders?

During the Civil War, Abraham Lincoln used an executive order called the Emancipation Proclamation in 1863 to free those Americans held in slavery. Historians don’t protest that he violated a law but rather believe walked into an unaddressed part of the law at that time and made a country-changing decision. This President’s orders will change the civil service. We can hope for a positive effect like that the 1863 proclamation ultimately produced.

Did you know that the government runs an entire security clearance program throughout the Executive Branch based on an order issued by Harry Truman? Employees are terminated under that order with limited appeal rights by Supreme Court (Egan V. Navy 108 S. Ct. 818 (1988)) case law.

Trump Executive Orders on Labor Relations

A careful reading of the Trump Orders tells me that they interpret the Federal labor law for the Executive Branch EXACTLY as have the appointees of prior Presidents. Nothing in that law says a President may not direct those carrying out the policies of his administration. In fact, that is EXACTLY what the Constitutions says he’s supposed to do.

A prior FLRA said that despite the existence of a contrary law, Federal employee union reps could lobby congress. Why can’t he direct his workforce not to?

Some prior FLRAs and Impasses Panels saw no limits to the government space, services and equipment a union was entitled to for free. Why can’t he say there is?

Prior FLRAs have endorsed the idea that 100% official time use was reasonable under the Federal statute. Why can’t he say it isn’t?

Those decisions didn’t quote the law, they made it and he appears within his authority to change prior directions unless he specifically violates the law. These orders, as written, do not do so.

Ensuring Our Laws are Faithfully Executed

It appears to me that he, as specifically directed by our Constitution, is taking care that our laws are faithfully executed, and from a guy with 44 years in Federal labor relations, it’s about time somebody did. I believe many Federal employees would welcome clear direction from government management whether they agreed with all the policies of its political leadership or not.

The above is obviously not a legal opinion. It also is mine except as noted.

© 2019 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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