First, will the administration obey the court order?
The White House and its Office of Management and Budget are not saying. The Justice Department, which lost the court case Saturday, would say only that the administration is considering its options. But there is a strong indication the administration will not obey the order, at least not yet.
The response of the Social Security Administration is instructive. It demonstrates no hurry to follow the court’s decision. Judge Ketanji Brown Jackson declared large portions of Trump’s orders “invalid” and prohibited “the President’s subordinates from implementing or giving effect” to them.
Emails provided by the American Federation of Government Employees (AFGE) from Social Security labor relations officials in Chicago and Dallas to local union leaders indicate the agency still considers Trump’s orders binding.
“The agency is currently evaluating the judge’s ruling on the executive orders,” said a labor and employee relations supervisor in Chicago. “We will not make any changes until that evaluation is complete.”
An email sent Monday from a Social Security official in Dallas said “we just received notice from headquarters, that the Agency’s position remains the same on the guidance that was effective on July 9, until further notice.” The guidance implemented Trump’s May 25 orders. That included evicting union officials from agency offices and sharply cutting “official time,” which is used by union representatives, while being paid by the government, to represent all employees in a bargaining unit, not just union members, on such matters as grievances and working conditions.
Confirming that stance, Mark Hinkle, a Social Security spokesman, said that “in consultation with the Department of Justice, we will continue under our current arrangements with our unions.” Following the direction of Justice also means agencies across the government may have been told to continue enforcing the executive orders.
The AFGE said the Department of Veterans Affairs also instructed local managers not to comply with the ruling pending further guidance.
Eric Shulman, legislative representative of the AFGE’s National Council of Social Security Administration Field Operations, criticized Social Security’s refusal to immediately implement the court’s ruling, saying the agency “shows a deep-seated anti-union bias at all levels of management.”
The Justice Department could appeal Jackson’s stinging rebuke of Trump.
The heart of the president’s action was an attempt to shatter the collective-bargaining power of unions and weaken their ability to represent workers.
Jackson repeatedly pointed to the ways Trump’s orders violated the Federal Service Labor-Management Relations Act. She noted that the “statute opens [italics original] with Congress’s unequivocal finding” that collective bargaining “safeguards the public interest, contributes to the effective conduct of public business, and facilitates and encourages the amicable settlements of disputes.”
Key provisions of the orders went beyond the president’s authority, she wrote, “because they conflict with the letter and the spirit” of the law.
Calling the Justice Department’s defense of the orders “akin to verbal jujitsu,” Jackson said “the strangeness of [the government’s] contention that, in the context of a statute that Congress has crafted to protect workers’ rights to good-faith collective bargaining, Congress intended to confer upon the President the power to issue executive orders that nullify those protections, cannot be overstated.”
Will Justice appeal? So far, it is not saying.
“We are disappointed in the ruling,” Andy Reuss, a department spokesman, said by email, “and are considering the appropriate next steps to ensure the President is able to fulfill his constitutional duties, run an effective and efficient government, and protect taxpayers from waste and abuse.”
Part of that consideration must be the conservative makeup of the Supreme Court, which could be the final arbiter. Despite the robes, the court is inherently political.
“This is a court that will likely see broad executive authority for Trump that it would not have seen for [President Barack] Obama,” said Norman J. Ornstein, a resident scholar at the American Enterprise Institute. “So this may be a temporary victory.”
The administration could try to rewrite the executive orders, as it did when courts stopped Trump’s early attempts at blocking entry to the United States by citizens of certain countries. But this case is not like that case.
“I don’t see how the administration could rewrite this in a way that would satisfy itself,” said Greg O’Duden, general counsel for the National Treasury Employees Union (NTEU). “What it demonstrated when it wrote these provisions was that it was very heavy-handed, wasn’t interested in trying to fine-tune anything and, you know, just completely took a bludgeon to civil service protections.”
Trump’s action was more than an assault on labor unions and federal workers.
“For Republicans,” Ornstein added, “it’s also an attempt to undermine the Democratic Party’s base and combined with voter suppression to try and win elections even if they don’t have majorities.”
Another arena that could be infected by Trump’s orders is civil service reform. Office of Personnel Management Director Jeff T.H. Pon promised to deliver the administration’s proposal before the midterm elections in November. Trump’s actions make employee trust in any administration plans even more difficult.
Trump’s orders further poisoned a toxic relationship with federal employees. His administration had previously proposed to freeze federal pay next year and cut retirement benefits by $143.5 billion over 10 years. Now his aggressive executive actions, regardless of whether they are overturned, make administration-and-labor cooperation a pipe dream.
“Unfortunately, I think the executive orders really were a poke in the eye to the employee unions without really addressing the critical issues that ought to be changed,” said Max Stier, an advocate for civil service modernization and president and CEO of the Partnership for Public Service. “Having a combative relationship with the employee unions isn’t the right way to get there.”
Regarding civil service reform, the Trump administration should learn a lesson from the executive-order turmoil, said O’Duden, the NTEU’s lawyer: “OPM, just like the president, cannot issue anything that would be at odds with the civil service law.”