Delay Upheld in Implementing Executive Orders

Here’s the latest twist in the ongoing legal battle over President Trump’s executive orders aimed at federal employee unions.

On August 14th, the Court of Appeals for the District of Columbia Circuit denied the government’s motion to lift an injunction prohibiting several Executive Orders issued by President Trump to be enforced. This is the latest is a series of legal maneuvers attempting to forestall the Orders from going into effect.

As often happens in the federal government, actions that would change or endanger the status quo leads to attacks from all directions. The Executive Orders issued by President Trump in May 2018 are a case in point.

The Orders exacted a predictable response resulting in numerous press releases, lawsuits, and several court decisions (so far) on motions and briefs arguing for or against the Executive Orders. The result is that some 15 months after being issued, the Executive Orders that would make changes in the federal labor relations program are still on hold.

A federal appeals court determined the issue on the applicability of the Orders should be referred to the Federal Labor Relations Authority (FLRA). This decision overturned the decision of a lower court. But, while the lower court’s decision was overturned, the injunction against implementing the Executive Orders has remained in place.

Injunction Upheld By Court

The US Court of Appeals for the District of Columbia Circuit issued a decision overturning a lower court decision but issued a supplemental addendum that delayed enforcing the Executive Orders. The Department of Justice asked for relief to immediately enforce the Executive Orders. But, on August 14th, the Court of Appeals for the District of Columbia Circuit denied the government’s motion to lift the injunction therefore not allowing the executive orders to take effect.

The legal maneuvering amounts to a decision that, eventually, may result in the case going before the Federal Labor Relations Authority. Any FLRA decision on this, whatever it may contain, is likely to again be reviewed in court on the merits and not just on a jurisdictional issue.

Goals of Agencies and Unions

The goal of the federal employee unions is to delay implementing the Executive Orders—preferably until after the presidential election in 2020—as they hope to have a more favorable reception of their institutional issues if a Democrat wins in 2020 (with their help in the campaign).

A long delay is not a pipe dream as the legal delays could easily delay implementation of the Executive Orders until the election occurs. The election results could mean all the legal work was for naught or, if President Trump wins in 2020, one can assume the unions’ role in agencies and their financial security will continue to diminish after the unions spend considerable time and money to campaign against President Trump.

On the other hand, while the Executive Orders have not been implemented, most of what was in the Orders can be implemented on an agency-by-agency basis if the leadership in the agency wishes to do so. That is happening as more agencies are proposing more restrictions (or at least some restrictions) on unions’ use of official time, free use of agency space and equipment, etc. These are some of the same topics addressed in the Executive Orders.

2020 Elections Will Determine Who Wins

So, in effect, the unions are going to court and other arenas to delay the Executive Orders. Agencies are, in some cases, moving out and becoming more aggressive in negotiations in putting restrictions on unions using federal employees working on behalf of the union while continuing to receive their full federal salary and benefits.

Both sides will probably have wins and losses in the coming months. The most significant factor will be the electoral outcome in 2020.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47