The debate over federal sector “union rights” misses an awkward fact: unlike the private sector, Congress granted those rights with carve-outs in trying to balance employee protections against government disruption in an era of less sharp political mayhem. The law hasn’t changed, but the times have—and that mismatch has left the federal civil service vulnerable to political winds.
Federal employee union rights were codified in Title VII of the Civil Service Reform Act of 1978 (CSRA). Some rights deemed “permissive” rise or fall with the occupant of the White House.
Most are limited and conditional: §7106 reserves sweeping management authority, while §7112 empowers the Federal Labor Relations Authority to decide who may unionize—or be excluded, including on national security grounds. §7103(b) goes further still, granting presidents authority to remove entire agencies or units from labor law if their “primary function” is national security and collective bargaining is deemed “inconsistent” with the mission/work.
Historically, presidents applied §7103(b) narrowly, excluding only workplaces where employees were directly engaged in intelligence, investigations, or military operations.
President Carter invoked the first EO under §7103(b), No. 12171 (1979), excluding various security, investigative, and military workplaces. In AFGE v. FLRA (10th Cir. 2016), the exclusion of the Air Force Office of Special Investigations was upheld in an indirect labor dispute.
President Reagan followed with EO 12559 (1986), amended by EO 12632 (1988), excluding the DEA and Marshals Service (USMS). When the union challenged the USMS exclusion, the DC Circuit, in AFGE v. Reagan (1989), upheld the exclusion under the “presumption of regularity,” noting that courts presume officials make the proper decisions absent clear evidence otherwise. Little noticed is that the EO largely covered investigative staff (i.e., “1811” investigators; this narrow exclusion is noted in the 2015 USMS and AFGE bargaining agreement).
Subsequent presidents used §7103(b) in a similar, narrow manner. George H.W. Bush excluded certain FEMA offices (EO 12681, 1989). Clinton excluded a Naval Special Warfare Group (EO 13039, 1997). George W. Bush expanded the list to additional FEMA offices and units within the Departments of Energy, Homeland Security, Justice, and Transportation (EO 13480, 2008). Obama followed with exclusions of various military units (EO 13760, 2017).
Trump’s first-term EOs 13836, 13837, and 13839 (2018) tried to limit bargaining and official time, but stopped short of excluding workplaces from labor law. Biden quickly countered with EO 14003 (2021), revoking Trump’s EOs and signaling that federal labor relations may in the future turn less on the CSRA’s framework than on whoever sits in the Oval Office.
In 2025, Trump proved this correct with EO 14251. It declared that more than half a million federal employees are primarily engaged in national security and stripped them of labor rights—while sparing unions that did not oppose his policies. Also, cabinet secretaries were delegated the power to “exclude” work units, and then labor contracts were unilaterally canceled.
The chief concern now is whether §7103(b) was applied as the CSRA intended (amid exclusions justified by policy resistance and applied inconsistently among units at the same agencies). Here, one wonders whether FLRA caselaw on “national security” matters (§ 7112(b)(6) rulings) applies. While the administration lawyers seem to offer “original” rationales, critics cite arbitrariness.
While not directly addressing § 7103(b), the tension between “national security” and labor law is not new at the courts. In AFGE v. DHS (2005), the D.C. Circuit struck down portions of Homeland Security’s post-9/11 “MaxHR” system, holding that national security concerns could not nullify statutory bargaining rights. Although 5 U.S.C. §9701(b)(4) seems to allow certain exclusions, the Court reaffirmed the labor law protections under the CSRA.
On arbitrariness, this Supreme Court has dithered: pretext renders an action invalid (Dep’t of Commerce v. New York, 2019); agencies must consider alternatives when ending programs (DHS v. Regents, 2020, on DACA); and relevant issues must be weighed and explained and be within a zone of reasonableness (FCC v. Prometheus Radio Project, 2021). Against the backdrop noted overall, the seeming expansive application of §7103(b) appears ripe for a robust analysis.
Also, by invoking §7103(b) rather than the narrower path under §7112—amid the “forced” lapse of a quorum at the FLRA—the CSRA process appears frustrated. A similar issue drew the 4th Circuit’s attention in an MSPB matter.
In National Association of Immigration Judges v. Owen (2025), the court emphasized that “the structure of the CSRA relies fundamentally… on a strong and independent MSPB and Special Counsel,” warning that courts cannot ignore evidence that the statute’s adjudicatory framework is being sidelined. By allowing judicial review outside the CSRA process, the court spotlighted a central concern: are executive actions chipping away at the CSRA—here, for CSRA purposes, FLRA oversight?
Where Things Stand
No one can predict what the courts will decide, but if EO 14251 stands and the CSRA remains unchanged, union rights will snap back under the next union-friendly president. Federal labor policy will fully swing with every election, eroding the balance the CSRA aimed to ensure. The resulting disorder may not be good.
A “merits” hearing is still months away in D.C. and California, and in the meantime only unions that dare not use their grievance rights against policies being instituted remain as non-national security workplaces. Labor agreements that endured 9/11 and many wars are now voided, and “national security” seems recast as a tool for suppressing dissent allowed within the merit systems principles and rules.
With a current wave of lawsuits likely to exceed those from Trump’s first term, which resulted in over $100 million (media reports) in back pay and about 1,700 reinstatements at just one agency (VA), the real question, in humble observation, is whether Congress will sit idle while today’s tactics hold tomorrow’s government hostage—or step in to re-balance the CSRA, ensuring a stable workforce and reasonably impartial public service, no matter who sits in the Oval Office.
Javier Soto is a private attorney representing federal civil servants overseas. He previously served as a Legal Rights Attorney for a major federal union in Washington, D.C., and before that, represented federal employees and unions in private practice.
