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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 1: In a five to four vote, the Supreme Court intervened

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Speaker 1: for the first time to bolster President Donald Trump's campaign

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Speaker 1: to wipe out federal spending programs he opposes.

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Speaker 2: In a Friday order, five of the.

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Speaker 1: Court's conservative justices cleared the Education Department to withhold money

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Speaker 1: for teacher training projects in eight Democratic states. The Education

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Speaker 1: Department had canceled one hundred four of one hundred and

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Speaker 1: nine grants under two training programs because of concerns about diversity, equity,

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Speaker 1: and inclusion. The justices halted a trial court ruling that

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Speaker 1: had temporarily required the department to keep covering incurred expenses.

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Speaker 1: Chief Justice John Roberts and the court's three liberal justices

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Speaker 1: indicated they would have denied the government's request. Joining me

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Speaker 1: is an expert in constitutional law. Harold Krant, a professor

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Speaker 1: with the Chicago Kent College of Law, tell us about

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Speaker 1: the cancelation of the grants and the lawsuit by eight

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Speaker 1: Democratic states over.

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Speaker 3: That the Education Department had decided that, for whatever reason,

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Speaker 3: the too many teacher training grants had been awarded and

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Speaker 3: therefore decided to claw them back. They clawed them back

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Speaker 3: on the grounds that the grants might have in some

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Speaker 3: ways contributed to illegal dei initiatives, So that's unclear, and

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Speaker 3: they used that reason for all of them. Un mass.

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Speaker 3: They didn't individually pick out a grant to the Chicago

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Speaker 3: schools versus New York schools versus their college training program.

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Speaker 3: They basically issued boilerplate stopping millions of dollars of grants

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Speaker 3: with no specificity, just using boilerplate language. The lawsuit then

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Speaker 3: was filed to attack the administration's to stop the grants,

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Speaker 3: and the trial judge issued a tro saying that the

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Speaker 3: government had to continue honoring the grants until there was

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Speaker 3: a full decision on the merits of the case. And

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Speaker 3: that's the status of the issue, which was then raised

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Speaker 3: first to the Appellate Court and finally to the Supreme

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Speaker 3: Court on its emergency docket, and the Supreme Court gave

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Speaker 3: the Trump administration a small victory on Friday by saying

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Speaker 3: that the court should not have an issue the temporary

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Speaker 3: restraining order which turned into a quasi injunction in the case,

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Speaker 3: and they should have allowed determination to take effect at

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Speaker 3: least until deciding the merits of the case.

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Speaker 1: In everything to do with DEI. The Trump administration says

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Speaker 1: that DEI is unlawful. Is there support for that theory?

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Speaker 3: Well, in some conceivable contexts, it might be if you

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Speaker 3: end up favoring, you know, women over men for some reason,

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Speaker 3: or if you end up favoring a particular religious group

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Speaker 3: as opposed to another in an effort to attain DEI objectives,

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Speaker 3: that would violate the civil rights laws as well as

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Speaker 3: the Constitution argically, But there's been no showing that that's

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Speaker 3: what's happening in these grants in particular or in other areas.

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Speaker 3: So the administration is just drawing with a huge broad

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Speaker 3: brush and saying that if you talk about issues of

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Speaker 3: fairness justice, that's a pan amount to violating either the

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Speaker 3: statue or the Constitution.

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Speaker 1: Explain what the majority said in its opinion. Why did

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Speaker 1: they decide this way?

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Speaker 3: The real question is why did the Supreme Court take

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Speaker 3: this case at this juncture. But in terms of what

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Speaker 3: it's said, the most reasonable part of what it stated

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Speaker 3: was that the lawsuit was filed in the law court.

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Speaker 3: The theory is that at the bottom of this claim

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Speaker 3: is a claim for namely, that the grant should be funded.

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Speaker 3: That is a claim for money, and therefore the plaintiff

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Speaker 3: should have rallied their claim to the Court of Federal Claims,

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Speaker 3: which is the tribunal that Congress has directed for all

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Speaker 3: pursuit of monetary claims against the government. And that's a

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Speaker 3: reasonable argument. There is some fuzziness about the Court president

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Speaker 3: about when a claim is won for money. So you

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Speaker 3: could stay in this case that it's about money, or

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Speaker 3: it's about not having your grants arbitrary and capriciously violated.

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Speaker 3: There's two ways to look at it, and so the

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Speaker 3: court will have to make that decision. Indeed, that is

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Speaker 3: a common issue for almost all of the grants, the

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Speaker 3: hundreds of millions of dollars of grants that the Trump

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Speaker 3: administration has terminated in order to.

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Speaker 1: Do this, the majority found that the Trump administration would

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Speaker 1: likely win the case.

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Speaker 3: Well, they didn't say that, interestingly enough, they never talked

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Speaker 3: about well, they never talked about the merits of whether

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Speaker 3: or not the Trump administration had the power to deny

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Speaker 3: the grants. But they did say that the Trump administration

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Speaker 3: may well win on the jurisdictional issue, and so that

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Speaker 3: will have to be decided at some point by the

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Speaker 3: Court's appeals and then, most likely by the Supreme Court,

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Speaker 3: because it is an issue that is underlying all of

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Speaker 3: these massive grant cases. With respect to the River Bull Harm,

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Speaker 3: the Court was on shakier ground. They seemed to say

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Speaker 3: that the planters all had enough money to continue the

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Speaker 3: programs and weren't relying on these grants. And while that

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Speaker 3: might be true for a five day period, it certainly

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Speaker 3: will not be true for any extended period of time

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Speaker 3: while the litigation continues. So its decision with respect to

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Speaker 3: harm is very questionable. But again, I think with respect

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Speaker 3: to jurisdiction, the Supreme Court at least made a plausible decision.

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Speaker 1: So the Chief Justice John Roberts sided with the Court's

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Speaker 1: three liberals who dissented. Kagan wrote a descent, and Justice

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Speaker 1: Jackson wrote a descent that Justice Soda Mayor joined in,

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Speaker 1: but the Chief didn't join in any of those.

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Speaker 3: It's hard to read the Chief Justice's position here. I mean,

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Speaker 3: at the end of the day, it might be that

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Speaker 3: he resents the Trump administration demanding that the Court used

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Speaker 3: this emergency docket to decide all these cases, and I

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Speaker 3: think there are still at these five or six more pending.

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Speaker 3: That may have been the reason, but we certainly don't know,

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Speaker 3: because he didn't express it. Justice Bart obviously was the

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Speaker 3: interesting vote because she switched from the prior Supreme Court decision,

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Speaker 3: which cided against President Trump's administration on somewhat similar grounds.

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Speaker 3: So whether she has changed her mind, whether there was

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Speaker 3: something unique about this case, again, we simply don't know.

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Speaker 1: Justice Tanji Brown Jackson in descent, said that it was

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Speaker 1: beyond puzzling that a majority of justice is conceived of

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Speaker 1: the government's application as an emergency. I mean, where is

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Speaker 1: the emergency here?

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Speaker 3: The only emergency is the fact that the money might

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Speaker 3: be spent in the interim for the grants and that

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Speaker 3: the Trump administration will not be able to recollect it.

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Speaker 3: And I think that is probably true to some extent.

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Speaker 3: That would be very difficult for the Trump administration to

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Speaker 3: get back the money because it will be spent, you know,

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Speaker 3: on what Congress wanted to be spent on, which is

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Speaker 3: teacher training.

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Speaker 2: And maybe this goes to what you said.

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Speaker 1: Both Justice Kagan and Justice Jackson said that nowhere in

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Speaker 1: the papers does the government defend the legality of canceling

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Speaker 1: the education grants.

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Speaker 3: Yeah, I mean, the question was one of jurisdiction, but

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Speaker 3: in terms of whether the administration had the power to

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Speaker 3: cancel the grants. There was silence part of the Trump

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Speaker 3: administration because there is not clear law that would authorize

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Speaker 3: the administration to basically cancel the grants because it no

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Speaker 3: longer sees them as a priority. I mean, if they

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Speaker 3: could show that these grants were in some ways fostering illegality,

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Speaker 3: then they would have cause to cancel the grants. But

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Speaker 3: otherwise the administration needs to honor them, and that they

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Speaker 3: have not done.

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Speaker 1: As of today, the Trump administration has made seven emergency

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Speaker 1: filings with the Supreme Court. This is the first time

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Speaker 1: they've won. Do you see any significance in that.

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Speaker 3: I don't. I mean, I think that this might be

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Speaker 3: terribly thought. This might be a case in which the

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Speaker 3: jurisdictional issue is thorny, and therefore the Court thinks that

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Speaker 3: it's likely going to ultimately be decided and favor the

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Speaker 3: Trump administration, and that is plausible. Or it might be

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Speaker 3: that some members of the Court think that it's okay

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Speaker 3: to give the Trump administration little wins as long as

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Speaker 3: it don't buckle in in a major case. That remains,

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Speaker 3: of course, is totally specult. That remains to be seen.

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Speaker 3: You know, I think this as just the one data point.

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Speaker 3: We're going to see the others again, because there's more

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Speaker 3: cases that are pending before we can make any kount

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Speaker 3: of judgment.

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Speaker 1: In its papers, the administration is casting the Supreme Court

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Speaker 1: request as having broader significance for the other lawsuits pending.

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Speaker 1: The Acting Solicitor General wrote, only this court can right

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Speaker 1: the ship, and the time to do so is now.

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Speaker 1: I mean, there's a message there that this is broader

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Speaker 1: than just this case.

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Speaker 3: Well, it's broader in the sense of the jurisdictional posture.

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Speaker 3: And what the acti solcial General may mean is that

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Speaker 3: from now on, all of these cases have been brought

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Speaker 3: before the Court of Federal Claims. And the question is

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Speaker 3: whether the Court of Federal Claims has the capacity to

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Speaker 3: hear all of these cases and to decide them quickly.

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Speaker 3: But this is not a victory on the merits because

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Speaker 3: as we discussed, I mean, the quote mentioned not one

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Speaker 3: win of the fact that the administration has the legal

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Speaker 3: power to do what it did. Its only question is

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Speaker 3: where the lawsuit should be situated.

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Speaker 2: As of today.

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Speaker 1: So the Trump administration today appealed because they don't want

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Speaker 1: to bring the prisoner back from Venezuela. So that is

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Speaker 1: the seventh administration appealed to the Supreme Court on the

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Speaker 1: emergency docket. There are some other ones that seem more urgent.

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Speaker 1: I'm wondering why they picked this one.

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Speaker 3: I really can't speculate on this one. The only sort

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Speaker 3: of guesswork that I could come up with is that

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Speaker 3: this is not as important as the other ones, and

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Speaker 3: so they wanted to again give Trump a small win

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Speaker 3: before they would have to really buckle down and reach

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Speaker 3: the merits of a case as opposed to just deciding

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Speaker 3: on jurisdictional grounds.

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Speaker 1: So there have been lots of articles lately. You mentioned

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Speaker 1: Justice Barrett. There have been lots of articles about how

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Speaker 1: she might become a moderate justice, siding more with the

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Speaker 1: middle of the court. But in something like ninety percent

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Speaker 1: of the cases she sides with the conservatives, and so

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Speaker 1: I'm wondering if all this is a little overblown. Because

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Speaker 1: she sided with the liberals in a few.

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Speaker 3: Cases, there is at least a progression of justice spirit

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Speaker 3: towards the middle, and everybody is holding the breath and

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Speaker 3: watching to see what will happen. I think that that

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Speaker 3: progression may well continue, but that's speculation, but I am

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Speaker 3: very convinced that she will have the opportunity because you're

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Speaker 3: going to be a slew of controversial cases that will

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Speaker 3: have to be decided by the court.

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Speaker 1: Coming up next on the Bloomberg Lawn Show, I'll continue

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Speaker 1: this conversation with Professor Harold Krent. The latest on the

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Speaker 1: marilynd man who was wrongly deported to a notorious prison

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Speaker 1: in L. Salvador. I'm June Grosso. When you're listening to Bloomberg.

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Speaker 1: Albrego Garcia had been lawfully living in Maryland with his

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Speaker 1: wife and young child, both US citizens. A twenty nineteen

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Speaker 1: immigration court order said he could be deported, but not

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Speaker 1: to L. Salvador, where he says he'd face gang based

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Speaker 1: extortion and persecution. Nonetheless, immigration officials arrested him on March

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Speaker 1: twelfth and accused him of playing a prominent role in

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Speaker 1: MS thirteen, though he hasn't been convicted of a crime

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Speaker 1: or even charged with one. Garcia was deported to L.

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Speaker 1: Salvador to its notorious prison there on March fifteenth. Despite

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Speaker 1: the court order. A federal judge gave the government until

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Speaker 1: eleven fifty nine pm Eastern time tonight to return him,

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Speaker 1: and a federal appeals court unanimously declined to block that order,

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Speaker 1: so the Trump administration went to the Supreme Court asking

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Speaker 1: it to block the order. Late this afternoon, Chief Justice

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Speaker 1: John Roberts paused the order, requiring his return by tonight.

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Speaker 1: The Supreme Court is now considering the case, with the

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Speaker 1: Chief Justice asking Garcia's attorneys to file a response by

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Speaker 1: tomorrow at five pm. I've been talking to Professor Harold

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Speaker 1: Krant of the Chicago Kent College of Law how the

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Speaker 1: Trump administration has very close contacts with the president of

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Speaker 1: l Salvador, and they now have a multimillion dollar contract

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Speaker 1: to house deporties in the prison in El Salvador. Yet

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Speaker 1: the administration is claiming they don't have the power to

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Speaker 1: get him back.

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Speaker 2: That strikes me as just not believable.

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Speaker 3: It does seem ludicrous, And this whole case is just

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Speaker 3: so sad. I mean, there's an individual who was pulled

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Speaker 3: out of his car driving with his young son, who

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Speaker 3: has a order from an immigration judge that says he

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Speaker 3: has to be protected and not sent back to El Salvador.

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Speaker 3: So what do the authorities do? They without giving me

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Speaker 3: any kind of du process, without ascertaining or giving him

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Speaker 3: a chance to tell his side of the story. They

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Speaker 3: cut him off to various places in the country and

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Speaker 3: ultimately send him to El Salvador, where there's judicial order

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Speaker 3: saying he can't be sent and when there is a

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Speaker 3: question in court, the attorney doesn't know the answer, and

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Speaker 3: all he can think of is that there was an

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Speaker 3: administrative mistake, and that's what happens when there's no due process.

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Speaker 3: Administrative mistakes can turn out to be in a tragedy.

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Speaker 3: And then the court says, well, bring him back, and

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Speaker 3: the Trump administration says and actually goes to the Supreme

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Speaker 3: Court and says, that's too broad of an order because

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Speaker 3: we don't know whether we can bring him back. And

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Speaker 3: of course I'm empathetic to a certain extent that the

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Speaker 3: administration may not be able to get him back in

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Speaker 3: a day. But given the fact that they have something

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Speaker 3: like a six million dollar contract with El Salvador to

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Speaker 3: house these individuals, one would think that they have with

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Speaker 3: enough kind of financial pressure that can be applied upon

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Speaker 3: El Salvador to release the individual at least within a

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Speaker 3: matter of days. And it's a truly outrageous case. And

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Speaker 3: I have to think that Supreme Court is going to

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Speaker 3: say that maybe the lower court judge needs to narrow

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Speaker 3: the injunction a little bit to use you know, all

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Speaker 3: speed in order to bring him back, or give them

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Speaker 3: a week or something to bring the guy back. But

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Speaker 3: it's just, you know, an administrator's mistake leads to sending

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Speaker 3: somebody away from his family, somebody who's in now being

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Speaker 3: housed with people that he has a protective order against.

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Speaker 3: It's just simply outrageous.

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Speaker 2: Do you think the Trump administration is doing this?

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Speaker 1: Because if they admit this one, if they bring this

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Speaker 1: one back, and it opens the floodgates, because you have

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Speaker 1: all these people, none of them was given a hearing.

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Speaker 3: You know, I think that here. You know, whether or

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Speaker 3: not mister Garcia was a member or is a member

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Speaker 3: of the gang is unclear, but certainly he has an

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Speaker 3: order to prevent him from doing this. And we don't

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Speaker 3: even know about the other individuals. Right, some were probably

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Speaker 3: gang members, but some were mistaken because of their tattoos

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Speaker 3: or their friends, et cetera, et cetera. And this again

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Speaker 3: is just a clear example of what happens when you

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Speaker 3: don't follow process, and the administration doesn't want to follow process,

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Speaker 3: and so mistakes are made, mistakes can be fatal. I'm

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Speaker 3: glad in some ways you're going to Supreme Court because

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Speaker 3: I think on the merits, I think the Supreme Court

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Speaker 3: is going to really administration a loss. Again, I don't

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Speaker 3: know about the scope of the injunction or the speed

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Speaker 3: with which they have to bring him back, but there's

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Speaker 3: no way that the court can justify what happened here

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Speaker 3: because it is a tragedy.

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Speaker 1: Out of seven emergency applications, this seems to be the

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Speaker 1: first one that is really an emergency.

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Speaker 3: Yeah, and again I think that the Court is itself

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Speaker 3: backed into a corner by using its emergency doctrine so frequently.

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Speaker 3: But I agree this one is an emergency. The individual's

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Speaker 3: life is probably in danger and his rights were incredibly violated,

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Speaker 3: and so I hope that the Court does use its

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Speaker 3: emergent and see docket to affirm what the lower court

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Speaker 3: has ordered, because that will ensure that the administration acts

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Speaker 3: with far greater swiftness than otherwise might do. Awesome, incredible

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Speaker 3: after this recent hearing on Friday, is that the Attorney

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Speaker 3: General suspended the government's attorney for being frank before the

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Speaker 3: court and acknowledging that they don't know why this individual

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Speaker 3: was arrested, and they didn't know why that there had

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Speaker 3: been no effort to bring him back once they were

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Speaker 3: alerted of the mistake, and his price for being frank

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Speaker 3: with the court was the fact that the Attorney General

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Speaker 3: suspended him for being insufficiently loyal to the administration. A

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Speaker 3: chilling moment.

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Speaker 1: Well, it looks like the court is acting very quickly

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Speaker 1: in this case, because the Chief Justice has ordered Garcia's

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Speaker 1: lawyers to respond by five pm tomorrow.

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Speaker 2: Thanks so much. How well, that's.

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Speaker 1: Professor Harold Krent of the Chicago Kent College of Law.

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Speaker 1: Turning now to Trump's battles with federal unions. Trump is

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Speaker 1: making a sweeping attack on collective bargaining rights as he

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Speaker 1: aims to lay off government workers. The administration has moved

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Speaker 1: to invalidate contracts between a swathe of US government agencies

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Speaker 1: and the two largest unions representing federal workers, claiming that

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Speaker 1: the collective bargaining agreements are impeding his efforts to reform

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Speaker 1: the government and pose a threat to national security. But

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Speaker 1: the unions are fighting back in court. The American Federation

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Speaker 1: of Government Employees and the National Treasury employees. Union have

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Speaker 1: sued the Trump administration in separate lawsuits, saying it's violated

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Speaker 1: the Constitution with its anti union directive, including violating its

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Speaker 1: free speech and due process rights. My guest is labor

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Speaker 1: law expert and Lafasso a perfer asked with the University

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Speaker 1: of Cincinnati.

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Speaker 2: College of Law.

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Speaker 1: So this started with the Trump executive order instructing agencies

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Speaker 1: to stop collective bargaining with federal unions because of national

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Speaker 1: security concerns. Tell us about the order and the law

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Speaker 1: he's using.

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Speaker 4: He is issued in executive order based on five USC.

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Speaker 4: Seventy one oh three, and it's really piggybacking on an

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Speaker 4: old executive order that Jimmy Carter issued. And Jimmy Carter

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Speaker 4: issued that executive order shortly after the Act that created

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Speaker 4: the Fair Labor Relations Authority, which is the authority that

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Speaker 4: deals with federal employees. It's the act that gave federal

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Speaker 4: employees the rights to unite. And that act says that one,

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Speaker 4: it gives them the right to organize, but certain employees

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Speaker 4: don't have the right to organize because of national security,

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Speaker 4: and then it kind of lists a few of those,

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Speaker 4: but then it gives the president power to issue an

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Speaker 4: order excluding any agency or subdivision thereof from coverage under

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Speaker 4: this Chapter if the President determines that the agency or

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Speaker 4: subdivision has as a primary function intelligence, counter intelligence, investigative,

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Speaker 4: or national security work, and the provisions of this Chapter

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Speaker 4: cannot be applied to that agency or subdivision in a

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Speaker 4: manner consistent with national security requirements and considerations. So even

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Speaker 4: though all of these employees have somehow been unionized and

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Speaker 4: it's been consistent with national security, he is stated in

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Speaker 4: his executive order that he has to do this because

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Speaker 4: of national security reasons and considerations, and that's the important word, considerations,

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Speaker 4: because a lot, it is a lot. This is disenfranchising many, many,

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Speaker 4: many employees. So in his view, the fact that they're

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Speaker 4: in a union and their collective bargaining agreement has made

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Speaker 4: it difficult for him to implement his national security policy.

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Speaker 4: That's in and of itself a really broadsweeping order that

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Speaker 4: no president has ever done. Not even after nine to

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Speaker 4: eleven did we have anything like this. We did have

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Speaker 4: some issues back in nine to eleven, and but much

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Speaker 4: more narrow and national security was much heightened back then

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Speaker 4: when we actually had a threat on the ground.

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Speaker 1: So after issuing the executive order, the Trump administration doesn't

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Speaker 1: wait to be sued. Instead, it sues in federal court

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Speaker 1: in Texas.

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Speaker 4: He wants to get around the idea of waiting for

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Speaker 4: all this to happen. So what he did was he

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Speaker 4: filed a complaint in the West Eastern District of Texas,

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Speaker 4: which is a very favorable district to the president's agenda,

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Speaker 4: and he filed this in the Western District of Texas,

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Speaker 4: asking for a declaratory judgment. Now, a declaratory judgment is

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Speaker 4: under the Declaratory Judgment Act, the Declaratory Judgment Act. It's

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Speaker 4: an old statute, but it is used, and it was

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Speaker 4: a way to distinguish between something called advisory opinions and

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Speaker 4: declaratory judgments. Advisory opinions are not allowed, and declaratory judgments are.

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Speaker 4: An advisory opinion is when the president asked the Supreme

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Speaker 4: Court for its opinion on whether something's constitutional. So Jefferson

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Speaker 4: did that way back when in the early eighteen hundreds,

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Speaker 4: and the Supreme Court said, justin Marshall said no, no, no,

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Speaker 4: we can't answer that question. That's an advisory opinion, and

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Speaker 4: that's up to you to decide, and you do it

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Speaker 4: and then if you get sued, we will decide that.

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Speaker 4: And in fact, that's how the Office of Legal Counsel

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Speaker 4: eventually got made because in the Office of Legal Council

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Speaker 4: is an executive branch agency that counsels the president on

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Speaker 4: the constitutionality of his her their acts. So the first

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Speaker 4: question here is is this really declaratory judgment? And as

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Speaker 4: he able to do this, so put aside whether this

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Speaker 4: actually fits into the category of declaratory judgment and whether

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Speaker 4: it fits into the category of advisory opinions. What he's

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Speaker 4: doing is he is intentionally and I don't blame him

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Speaker 4: for this in terms of the mindset going to a

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Speaker 4: favorable court what's called forum shopping. There's little doubt in

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Speaker 4: my mind that this judge will find in favor of Trump,

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Speaker 4: and we'll go to the Fifth Circuit and the Fifth

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Speaker 4: Circuit will find in favor of Trump. And where does

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Speaker 4: that leave you the Supreme Court if it decides to

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Speaker 4: take the case.

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Speaker 1: Coming up next on the Bloomberg Law Show, the Union

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Speaker 1: Sue one in California and one in DC. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg. The Trump administration is

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Speaker 1: moving to invalidate contracts between a swamp of US government

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Speaker 1: agencies and the two largest unions representing federal workers, claiming

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Speaker 1: that the collective bargaining agreements are impeding efforts to reform

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Speaker 1: the government and pose a threat to national security. The

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Speaker 1: unions are fighting back in court, suing the Trump administration

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Speaker 1: saying it violated the Constitution with its anti union directive,

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Speaker 1: including violating its free speech and due process rights. I've

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Speaker 1: been talking to Professor Ann Lafasso of the University of

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Speaker 1: Cincinnati College of Law and tell us about some of

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Speaker 1: the legal questions that come up because of these Trump

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Speaker 1: administration moves.

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Speaker 4: So this really raises a lot of questions. It raises

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Speaker 4: libor law questions and constitutional law questions. So FIRSUS canny

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Speaker 4: do it, Well, that's what the litigation is going to decide.

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Speaker 4: So he's going to say that he can do it

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Speaker 4: because of national security, and on the face of the

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Speaker 4: statute that is true. He can do things in national security,

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Speaker 4: but you can't just declare national security. They are certainly

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Speaker 4: taking a broad reading of this statute in a way

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Speaker 4: that the courts don't want broad readings of statutes right now.

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Speaker 4: They don't want that kind of delegation of authority. They've

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Speaker 4: been very very quick to say, uh uh uh, this

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Speaker 4: is too much. Congress didn't delegate this type of authority

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Speaker 4: to anyone, and that's not what the president can do. Okay,

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Speaker 4: that's possible. That's one thing. Another thing would be, well,

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Speaker 4: it has me consistent with national security. Well, he's arguing

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Speaker 4: that it's the collective bargaining agreement. We turn to work

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Speaker 4: policies that are problematic, and he says.

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Speaker 3: Some of them.

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Speaker 4: So wouldn't the solution be if that's true, the dispute

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Speaker 4: is really about the collective bargaining agreements and you avoid

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Speaker 4: them because of national security is concerned, And wouldn't that

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Speaker 4: just go to the FLRA as an administrative proceedings.

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Speaker 1: The FLRA being the Federal Labor Relations Authority. We'll talk

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Speaker 1: about that in a moment. Let's turn to the two

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Speaker 1: lawsuits by the unions. What are their chief contentions?

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Speaker 4: The unions are steering and they have three main arguments. First,

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Speaker 4: they're claiming that Trump violated their First Amendment rights by

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Speaker 4: retaliating against them because they spoke in a way that

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Speaker 4: he deems to be anti Trump. Second, they say that

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Speaker 4: Trump's order violates the Fifth Amendments Due Process Clause. The

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Speaker 4: Fifth Amendments Due Process Clause is like the Fourteenth Amendment,

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Speaker 4: but it applies to the federal government about the state governments.

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Speaker 4: And they say that the violates due process because they

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Speaker 4: literally stripped these employees of their contractual rights without any

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Speaker 4: due process, which they are titles to under the Fifth Amendment.

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Speaker 4: And three, they say that the executive order violates the

440
00:27:07,040 --> 00:27:11,120
Speaker 4: separation of powers. From this argument means that Congress made

441
00:27:11,320 --> 00:27:16,000
Speaker 4: a statute about fifty years ago. That statue get broadly

442
00:27:16,080 --> 00:27:21,320
Speaker 4: granted union rights to federal employees with few exceptions. And

443
00:27:21,920 --> 00:27:28,520
Speaker 4: then presidents have under that act narrow authority to designate

444
00:27:28,760 --> 00:27:34,040
Speaker 4: certain executive agencies or subdivisions that they deem should not

445
00:27:34,160 --> 00:27:38,000
Speaker 4: be organized at the moment because of national security reasons.

446
00:27:38,680 --> 00:27:42,800
Speaker 4: And presidents starting with Jimmy Carter have used that clause,

447
00:27:43,160 --> 00:27:47,320
Speaker 4: but only to designate very small parts of the of

448
00:27:47,359 --> 00:27:53,800
Speaker 4: the federal agencies. This case actually does a sweeping broad

449
00:27:54,400 --> 00:28:00,840
Speaker 4: declaration of unionizing or evoking the recognition of the union

450
00:28:00,920 --> 00:28:05,800
Speaker 4: rights of many they're claiming most federal employees. So the

451
00:28:05,840 --> 00:28:08,840
Speaker 4: AFL and the unions are claiming, which is if you

452
00:28:08,840 --> 00:28:13,119
Speaker 4: look at the list it is expansive, it's tweeping, it's

453
00:28:13,240 --> 00:28:16,560
Speaker 4: very broad, it is shocking. Actually, So those are the

454
00:28:16,600 --> 00:28:18,080
Speaker 4: three things that they are arguing.

455
00:28:18,480 --> 00:28:21,879
Speaker 1: Does this all have to do with his attempt to

456
00:28:21,920 --> 00:28:25,640
Speaker 1: fire federal workers? So he's trying to eliminate the union connection,

457
00:28:26,359 --> 00:28:27,200
Speaker 1: so he.

458
00:28:27,119 --> 00:28:30,640
Speaker 4: Can do this okay, meaning he has authority to do this.

459
00:28:30,760 --> 00:28:33,320
Speaker 4: Whether he has authority to do with this broadly is

460
00:28:33,440 --> 00:28:38,560
Speaker 4: very different. So this is clearly part of his agenda

461
00:28:38,840 --> 00:28:43,120
Speaker 4: to fire the employees because they won't have the collective

462
00:28:43,120 --> 00:28:46,400
Speaker 4: bargaining rights. They'll still have certain statutory rights, but they

463
00:28:46,400 --> 00:28:48,920
Speaker 4: won't have their collective bargaining rights, and this way they

464
00:28:48,920 --> 00:28:52,400
Speaker 4: can fire them more easily, possibly because they're still statutory rights.

465
00:28:52,600 --> 00:28:55,240
Speaker 4: I mean, if you have a contract rather than being

466
00:28:55,280 --> 00:28:57,560
Speaker 4: at well, you have a lot more rights. Everyone would

467
00:28:57,560 --> 00:28:59,600
Speaker 4: prefer a contract to being at well.

468
00:29:00,360 --> 00:29:03,320
Speaker 2: Have these union workers been fired already? Do we know?

469
00:29:03,880 --> 00:29:06,360
Speaker 4: I mean, there's so many that I do not know

470
00:29:06,400 --> 00:29:09,360
Speaker 4: whether any of these have been fired. My guess is

471
00:29:09,360 --> 00:29:11,800
Speaker 4: that possibly some of them have been fired, but not

472
00:29:11,920 --> 00:29:15,480
Speaker 4: every single one. But it's so expansive it can't be

473
00:29:15,640 --> 00:29:18,640
Speaker 4: that I would be surprised if all of these were fired,

474
00:29:18,680 --> 00:29:22,360
Speaker 4: because it would be the government, right, But you know,

475
00:29:22,400 --> 00:29:25,600
Speaker 4: you have to ask yourself, really administrative assistants have a

476
00:29:25,680 --> 00:29:28,320
Speaker 4: national security role. I mean some might. You know, he

477
00:29:28,360 --> 00:29:30,840
Speaker 4: has the entire Department of the Treasury except the Bureau

478
00:29:30,920 --> 00:29:35,000
Speaker 4: of Engraving and Printing, the entire Department of Veterans Affairs,

479
00:29:35,040 --> 00:29:38,000
Speaker 4: the entire Department of Justice, the entire Department of State,

480
00:29:38,440 --> 00:29:42,880
Speaker 4: the entire Department of Defense except for any subdivisions excluded previously,

481
00:29:42,960 --> 00:29:46,320
Speaker 4: so that means they're already in there. The Department of

482
00:29:46,360 --> 00:29:51,320
Speaker 4: Health and Human Services specifically, and it lists seven agencies,

483
00:29:51,600 --> 00:29:56,080
Speaker 4: and then Homeland Security it's lists twelve subagencies. I mean,

484
00:29:56,080 --> 00:30:02,880
Speaker 4: this is expansive, This is really real a lot of employees,

485
00:30:02,960 --> 00:30:04,880
Speaker 4: and that is what the shocking part of this is.

486
00:30:05,520 --> 00:30:09,760
Speaker 4: Now again, like after nine to eleven, you think something

487
00:30:09,880 --> 00:30:11,840
Speaker 4: Bush might have done something like this, but he didn't

488
00:30:12,520 --> 00:30:16,400
Speaker 4: do this broad sea recognition of union workers, and that

489
00:30:16,480 --> 00:30:20,440
Speaker 4: must have been a time that was much more problematic

490
00:30:20,480 --> 00:30:25,240
Speaker 4: in terms of national security. And the complaint that he

491
00:30:25,280 --> 00:30:28,600
Speaker 4: files in the Western District of Texas specifically focuses on

492
00:30:28,640 --> 00:30:33,440
Speaker 4: the word considerations, so national security considerations, which is a

493
00:30:33,440 --> 00:30:38,760
Speaker 4: fuzzy word, so he's not claiming that there's actual national

494
00:30:38,800 --> 00:30:42,720
Speaker 4: security urgency here, And one thing is important for people

495
00:30:42,720 --> 00:30:45,880
Speaker 4: to understand is that national security is like to get

496
00:30:45,920 --> 00:30:48,680
Speaker 4: out jail free cards for the government. When they say

497
00:30:48,760 --> 00:30:53,200
Speaker 4: national security, that means the courts look at that very

498
00:30:53,280 --> 00:30:57,120
Speaker 4: seriously because they like to defer to the president of

499
00:30:57,240 --> 00:31:01,160
Speaker 4: national security. But imagine if the president just has to

500
00:31:01,240 --> 00:31:04,640
Speaker 4: use the magic words, wave his hand, and then anything

501
00:31:04,760 --> 00:31:09,280
Speaker 4: he does is then a matter of national security, that

502
00:31:09,360 --> 00:31:10,400
Speaker 4: he could do whatever you want.

503
00:31:10,720 --> 00:31:12,560
Speaker 3: So this is such a broad.

504
00:31:12,920 --> 00:31:17,960
Speaker 4: Sweeping interpretation that further consolidates power in the hands of

505
00:31:18,000 --> 00:31:22,200
Speaker 4: the president and the executive agencies. Now he's actually delegating

506
00:31:22,240 --> 00:31:26,400
Speaker 4: that authority the agencies themselves, so he's actually telling them

507
00:31:26,400 --> 00:31:28,360
Speaker 4: that they have to do this. So that's another end

508
00:31:28,480 --> 00:31:32,560
Speaker 4: run around this to some extent, is that the president

509
00:31:32,640 --> 00:31:35,760
Speaker 4: is not suing. The agencies are suing, but it's the

510
00:31:35,800 --> 00:31:39,360
Speaker 4: president who acted, and then they acted under the president's authority.

511
00:31:39,400 --> 00:31:42,920
Speaker 4: So that's an interesting twist. This is raising all kinds

512
00:31:42,680 --> 00:31:48,400
Speaker 4: of issues that are new, that are stretching the law

513
00:31:48,440 --> 00:31:51,040
Speaker 4: in a way that I have never personally have not seen.

514
00:31:52,360 --> 00:31:55,920
Speaker 1: Is the Trump administration also sort of trying to paralyze

515
00:31:55,960 --> 00:32:00,000
Speaker 1: the FLRA by firing the board chair.

516
00:32:00,520 --> 00:32:04,560
Speaker 4: Yes, And he also fired the entire impasses panel last week.

517
00:32:04,960 --> 00:32:09,600
Speaker 4: So the impasses panel is what decides disputes. When the

518
00:32:09,680 --> 00:32:14,240
Speaker 4: parties are at impass over something, then it goes to

519
00:32:14,280 --> 00:32:18,400
Speaker 4: the impassive panel. So if they're bargaining over a contract

520
00:32:18,440 --> 00:32:20,760
Speaker 4: right now, there's no impasses panel. Every single one of

521
00:32:20,800 --> 00:32:24,960
Speaker 4: them was fired last week. I mean that's I guess, right,

522
00:32:25,720 --> 00:32:27,960
Speaker 4: So that's the board. Those are the big guys. Those

523
00:32:27,960 --> 00:32:32,120
Speaker 4: are the big shots, right, and now they're special government employees.

524
00:32:32,160 --> 00:32:35,320
Speaker 4: They're paid minimally, they're paid by the hour. They're not

525
00:32:35,600 --> 00:32:39,440
Speaker 4: full employees. It's a part time job. So the personal

526
00:32:39,440 --> 00:32:42,880
Speaker 4: effects on them is much much weaker than what's happening

527
00:32:42,880 --> 00:32:47,720
Speaker 4: to these actual employees. But it has the same effect

528
00:32:47,800 --> 00:32:52,040
Speaker 4: on the government, which is to make it dysfunctional. So

529
00:32:52,160 --> 00:32:55,960
Speaker 4: what he's done is is use this authority in the

530
00:32:56,040 --> 00:33:01,920
Speaker 4: name of national security to fire most the unionized workforce

531
00:33:02,000 --> 00:33:06,240
Speaker 4: in the federal government under the guise of national security.

532
00:33:06,720 --> 00:33:10,680
Speaker 4: And at the same time he's gotten rid of the

533
00:33:10,800 --> 00:33:14,479
Speaker 4: agencies but could actually resolve these seats like the FLRI.

534
00:33:15,280 --> 00:33:18,320
Speaker 1: What will happen if you end up with conflicting orders

535
00:33:18,360 --> 00:33:21,840
Speaker 1: from Texas and let's say California, which seems likely.

536
00:33:22,280 --> 00:33:25,880
Speaker 4: Well, this is interesting because Texas they're asking for a

537
00:33:26,000 --> 00:33:29,440
Speaker 4: nationwide declaratory judgment. I would say, there's likely to be

538
00:33:29,520 --> 00:33:33,720
Speaker 4: some conflict, and there's so many issues here because one

539
00:33:33,760 --> 00:33:38,240
Speaker 4: issue is can there be parallel seats. So the Trump administration,

540
00:33:38,360 --> 00:33:41,520
Speaker 4: I certain will argue that there can't be parallel seats

541
00:33:41,520 --> 00:33:43,360
Speaker 4: in the one in the Western District of Texas is

542
00:33:43,400 --> 00:33:46,360
Speaker 4: the correct one. And the unions are going to argue

543
00:33:46,400 --> 00:33:49,640
Speaker 4: that whether or not there can be parallel seats, his

544
00:33:49,800 --> 00:33:54,280
Speaker 4: suits cannot be sustained because there's no declaratory judgment that

545
00:33:54,680 --> 00:33:58,360
Speaker 4: is permitted, that his case doesn't fit under the Declaratory

546
00:33:58,400 --> 00:34:02,560
Speaker 4: Judgment Act. So that's what they're so Again, the presidents

547
00:34:02,560 --> 00:34:06,840
Speaker 4: have used this authority, but never in this broad sweeping way,

548
00:34:07,520 --> 00:34:12,520
Speaker 4: and it reads very much like an m run around

549
00:34:12,680 --> 00:34:15,680
Speaker 4: the unions in terms of the rights of the employees,

550
00:34:16,000 --> 00:34:19,759
Speaker 4: their due process rights, their rights under their contracts, or

551
00:34:19,800 --> 00:34:23,080
Speaker 4: their contractual rights, all in the name of this so

552
00:34:23,280 --> 00:34:27,080
Speaker 4: called national security consideration that is undefined.

553
00:34:27,480 --> 00:34:30,800
Speaker 1: We'll see how it all plays out in three different courts.

554
00:34:30,880 --> 00:34:31,600
Speaker 2: Thanks so much.

555
00:34:31,640 --> 00:34:35,960
Speaker 1: And that's Professor An Lafasso of the University of Cincinnati

556
00:34:36,080 --> 00:34:38,600
Speaker 1: College of law. And that's it for this edition of

557
00:34:38,600 --> 00:34:41,279
Speaker 1: The Bloomberg Law Show. Remember you can always get the

558
00:34:41,320 --> 00:34:44,560
Speaker 1: latest legal news on our Bloomberg Law Podcast. You can

559
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560
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561
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Speaker 1: tune into The Bloomberg Law Show every weeknight at ten

562
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563
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