WASHINGTON (CN) – Vying to reinstate executive orders that were found to gut union rights, an attorney for the government said Thursday that federal labor law cannot restrain President Donald Trump.
Justice Department attorney Joseph Busa made the case before the D.C. Circuit this morning, contesting a ruling from August that found Trump had made an end-run on the 1978 Federal Service Labor-Management Relations Act.
U.S. Circuit Judge A. Raymond Randolph cornered Busa, however, for arguing that the proper venue for such a challenge is not the courts but the Federal Labor Relations Authority.
“They can’t bring a claim before the FLRA against the president of the United States,” Randolph said.
Before Busa could respond, Randolph interrupted him.
“No, they can’t,” he said, noting that the president is not an agency within the meaning of the Administrative Procedure Act.
Busa persisted, saying the FLRA was still the proper venue for the unions to seek relief, in this case “to cease and desist unfair labor practices.”
In the ruling against Trump last year, U.S. District Judge Ketanji Brown Jackson invalidated a 25 percent cap on the use of official time federal unions can devote to union activities, including helping employees with grievances and appeals.
An Obama appointee, Jackson also blocked portions of the orders that limited union use of agency facilities, prohibited unions from petitioning Congress, and excluded challenges to incentive pay and performance ratings.
Busa urged the appellate panel not to see the union’s suit as a facial challenge but rather as one involving how Trump’s orders will be implemented by the agency.
“This is really no different from a supervisor telling an agency negotiator what they’re supposed to do in these negotiations,” Busa said.
Jackson meanwhile had characterized it as a facial challenge, which contends that a law or regulation is unconstitutional as written, on its face.
That point got driven home today by attorney Andres Grajales, arguing for the American Federation of Government Employees.
“The unions’ claim is very much a facial challenge,” Grajales said. “And the administrative scheme does not provide for review of that claim.”
U.S. Circuit Judge Thomas Griffith pressed Busa meanwhile to say where the unions could bring a facial challenge to the president’s executive orders.
“Before the FLRA, your honor,” Busa said, adding that such authority can determine the validity of executive orders as they pertain to violations of the labor statute.
“That’s the authority’s bread and butter,” Busa said.
When Griffith questioned whether the goals laid out by the executive orders could amount to good management practices, union attorney Gregory O’Duden said that would only be the case if the orders were “aspirational.”
“These are in effect commands where the president is telling agencies what they must do,” said O’Duden, who represents the National Treasury Employees Union.
Prior to enactment of the 1978 Federal Service Labor-Management Relations Statute, the president governed labor-management relations by executive order.
The unions say the law stripped the president of any authority to issue orders on collective bargaining except in discreet matters. Judge Randolph seized on the latter point Thursday, saying it implies the law can be read as having left the president with some authority to weigh in on collective bargaining issues.
Gregory O’Duden, an attorney for the National Treasury Employees Union, did not entirely disagree with that point but said the statute still restrains the president – it does not allow him “to resurrect himself” and return to the pre-statutory scheme.
Noting that lawmakers were reverent of collective bargaining at the time the law was passed, O’Duden said it would be surprising if Congress intended to allow the president to undermine their effort.
U.S. Circuit Judge Sri Srinivasan rounded out Thursday’s panel. They did not indicate when they will have a ruling.