Issue Briefs

Below is the section of a Justice Department filing with a federal appeals court in the dispute over President Trump’s three executive orders regarding bargaining and disciplinary practices, in which the administration lays out its central argument for why the lower court should be overturned. (Note: This omits the legal citations in the original.)

The district court’s order declares provisions of three executive orders to be unlawful and permanently enjoins all of the President’s subordinates in the Executive Branch from enforcing or otherwise giving effect to those provisions. The President is thereby disabled, in respect to the enjoined provisions, from exercising his authority under the Constitution and statute to superintend the Executive Branch.

The injunction has government-wide reach, affecting important issues of agency management and the conduct of negotiating collective bargaining in every federal agency. For example, the district court enjoined Section 5(e) of Executive Order 13836, which states that “agency negotiators shall request the exchange of written proposals” during collective bargaining and strive to remove any existing agreements or policies that would prevent exchanging written proposals. The district court enjoined this provision as inherently undermining the duty to bargain in good faith. But exchanging written proposals occurs in “most negotiations, helps to facilitate communications between the parties, and helps to objectively evaluate the parties’ good or bad faith if another entity, like the Federal Labor Relations Authority, is later called upon to do so. The district court also enjoined the Section 6 of the same Order, which states that agency heads “may not negotiate over the substance of” permissive subjects of bargaining, even though that statute allows agencies to negotiate over those subjects—or not—“at the election of the agency.”

And the district court enjoined Section 3 of Executive Order 13839, which requires agency heads, “whenever reasonable in view of the particular circumstances,” to strive to reach agreement with unions to exclude from collective-bargaining agreements any grievance procedures covering “disputes concerning decisions to remove any employee…for misconduct or unacceptable performance.” The district court concluded that agencies would violate their duty to bargain in good faith under the Statute if they entered negotiations seeking to achieve a goal, committed the time and resources necessary to achieve that goal, and reported to the President if negotiators were unable to achieve that goal. The district court enjoined several other similar goal-setting provisions of the Executive Orders on the same ground.

Expedited briefing is warranted to resolve the urgent and significant issues presented by this appeal. Prompt resolution is especially needed in light of the ongoing effects of the permanent injunction on agency management and collective bargaining throughout the federal government, and in light of the effect the injunction has on the President’s ability to supervise the conduct of his subordinates in the Executive Branch.