Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 1: In a five to four vote, the Supreme Court intervened
Speaker 1: for the first time to bolster President Donald Trump's campaign
Speaker 1: to wipe out federal spending programs he opposes.
Speaker 2: In a Friday order, five of the.
Speaker 1: Court's conservative justices cleared the Education Department to withhold money
Speaker 1: for teacher training projects in eight Democratic states. The Education
Speaker 1: Department had canceled one hundred four of one hundred and
Speaker 1: nine grants under two training programs because of concerns about diversity, equity,
Speaker 1: and inclusion. The justices halted a trial court ruling that
Speaker 1: had temporarily required the department to keep covering incurred expenses.
Speaker 1: Chief Justice John Roberts and the court's three liberal justices
Speaker 1: indicated they would have denied the government's request. Joining me
Speaker 1: is an expert in constitutional law. Harold Krant, a professor
Speaker 1: with the Chicago Kent College of Law, tell us about
Speaker 1: the cancelation of the grants and the lawsuit by eight
Speaker 1: Democratic states over.
Speaker 3: That the Education Department had decided that, for whatever reason,
Speaker 3: the too many teacher training grants had been awarded and
Speaker 3: therefore decided to claw them back. They clawed them back
Speaker 3: on the grounds that the grants might have in some
Speaker 3: ways contributed to illegal dei initiatives, So that's unclear, and
Speaker 3: they used that reason for all of them. Un mass.
Speaker 3: They didn't individually pick out a grant to the Chicago
Speaker 3: schools versus New York schools versus their college training program.
Speaker 3: They basically issued boilerplate stopping millions of dollars of grants
Speaker 3: with no specificity, just using boilerplate language. The lawsuit then
Speaker 3: was filed to attack the administration's to stop the grants,
Speaker 3: and the trial judge issued a tro saying that the
Speaker 3: government had to continue honoring the grants until there was
Speaker 3: a full decision on the merits of the case. And
Speaker 3: that's the status of the issue, which was then raised
Speaker 3: first to the Appellate Court and finally to the Supreme
Speaker 3: Court on its emergency docket, and the Supreme Court gave
Speaker 3: the Trump administration a small victory on Friday by saying
Speaker 3: that the court should not have an issue the temporary
Speaker 3: restraining order which turned into a quasi injunction in the case,
Speaker 3: and they should have allowed determination to take effect at
Speaker 3: least until deciding the merits of the case.
Speaker 1: In everything to do with DEI. The Trump administration says
Speaker 1: that DEI is unlawful. Is there support for that theory?
Speaker 3: Well, in some conceivable contexts, it might be if you
Speaker 3: end up favoring, you know, women over men for some reason,
Speaker 3: or if you end up favoring a particular religious group
Speaker 3: as opposed to another in an effort to attain DEI objectives,
Speaker 3: that would violate the civil rights laws as well as
Speaker 3: the Constitution argically, But there's been no showing that that's
Speaker 3: what's happening in these grants in particular or in other areas.
Speaker 3: So the administration is just drawing with a huge broad
Speaker 3: brush and saying that if you talk about issues of
Speaker 3: fairness justice, that's a pan amount to violating either the
Speaker 3: statue or the Constitution.
Speaker 1: Explain what the majority said in its opinion. Why did
Speaker 1: they decide this way?
Speaker 3: The real question is why did the Supreme Court take
Speaker 3: this case at this juncture. But in terms of what
Speaker 3: it's said, the most reasonable part of what it stated
Speaker 3: was that the lawsuit was filed in the law court.
Speaker 3: The theory is that at the bottom of this claim
Speaker 3: is a claim for namely, that the grant should be funded.
Speaker 3: That is a claim for money, and therefore the plaintiff
Speaker 3: should have rallied their claim to the Court of Federal Claims,
Speaker 3: which is the tribunal that Congress has directed for all
Speaker 3: pursuit of monetary claims against the government. And that's a
Speaker 3: reasonable argument. There is some fuzziness about the Court president
Speaker 3: about when a claim is won for money. So you
Speaker 3: could stay in this case that it's about money, or
Speaker 3: it's about not having your grants arbitrary and capriciously violated.
Speaker 3: There's two ways to look at it, and so the
Speaker 3: court will have to make that decision. Indeed, that is
Speaker 3: a common issue for almost all of the grants, the
Speaker 3: hundreds of millions of dollars of grants that the Trump
Speaker 3: administration has terminated in order to.
Speaker 1: Do this, the majority found that the Trump administration would
Speaker 1: likely win the case.
Speaker 3: Well, they didn't say that, interestingly enough, they never talked
Speaker 3: about well, they never talked about the merits of whether
Speaker 3: or not the Trump administration had the power to deny
Speaker 3: the grants. But they did say that the Trump administration
Speaker 3: may well win on the jurisdictional issue, and so that
Speaker 3: will have to be decided at some point by the
Speaker 3: Court's appeals and then, most likely by the Supreme Court,
Speaker 3: because it is an issue that is underlying all of
Speaker 3: these massive grant cases. With respect to the River Bull Harm,
Speaker 3: the Court was on shakier ground. They seemed to say
Speaker 3: that the planters all had enough money to continue the
Speaker 3: programs and weren't relying on these grants. And while that
Speaker 3: might be true for a five day period, it certainly
Speaker 3: will not be true for any extended period of time
Speaker 3: while the litigation continues. So its decision with respect to
Speaker 3: harm is very questionable. But again, I think with respect
Speaker 3: to jurisdiction, the Supreme Court at least made a plausible decision.
Speaker 1: So the Chief Justice John Roberts sided with the Court's
Speaker 1: three liberals who dissented. Kagan wrote a descent, and Justice
Speaker 1: Jackson wrote a descent that Justice Soda Mayor joined in,
Speaker 1: but the Chief didn't join in any of those.
Speaker 3: It's hard to read the Chief Justice's position here. I mean,
Speaker 3: at the end of the day, it might be that
Speaker 3: he resents the Trump administration demanding that the Court used
Speaker 3: this emergency docket to decide all these cases, and I
Speaker 3: think there are still at these five or six more pending.
Speaker 3: That may have been the reason, but we certainly don't know,
Speaker 3: because he didn't express it. Justice Bart obviously was the
Speaker 3: interesting vote because she switched from the prior Supreme Court decision,
Speaker 3: which cided against President Trump's administration on somewhat similar grounds.
Speaker 3: So whether she has changed her mind, whether there was
Speaker 3: something unique about this case, again, we simply don't know.
Speaker 1: Justice Tanji Brown Jackson in descent, said that it was
Speaker 1: beyond puzzling that a majority of justice is conceived of
Speaker 1: the government's application as an emergency. I mean, where is
Speaker 1: the emergency here?
Speaker 3: The only emergency is the fact that the money might
Speaker 3: be spent in the interim for the grants and that
Speaker 3: the Trump administration will not be able to recollect it.
Speaker 3: And I think that is probably true to some extent.
Speaker 3: That would be very difficult for the Trump administration to
Speaker 3: get back the money because it will be spent, you know,
Speaker 3: on what Congress wanted to be spent on, which is
Speaker 3: teacher training.
Speaker 2: And maybe this goes to what you said.
Speaker 1: Both Justice Kagan and Justice Jackson said that nowhere in
Speaker 1: the papers does the government defend the legality of canceling
Speaker 1: the education grants.
Speaker 3: Yeah, I mean, the question was one of jurisdiction, but
Speaker 3: in terms of whether the administration had the power to
Speaker 3: cancel the grants. There was silence part of the Trump
Speaker 3: administration because there is not clear law that would authorize
Speaker 3: the administration to basically cancel the grants because it no
Speaker 3: longer sees them as a priority. I mean, if they
Speaker 3: could show that these grants were in some ways fostering illegality,
Speaker 3: then they would have cause to cancel the grants. But
Speaker 3: otherwise the administration needs to honor them, and that they
Speaker 3: have not done.
Speaker 1: As of today, the Trump administration has made seven emergency
Speaker 1: filings with the Supreme Court. This is the first time
Speaker 1: they've won. Do you see any significance in that.
Speaker 3: I don't. I mean, I think that this might be
Speaker 3: terribly thought. This might be a case in which the
Speaker 3: jurisdictional issue is thorny, and therefore the Court thinks that
Speaker 3: it's likely going to ultimately be decided and favor the
Speaker 3: Trump administration, and that is plausible. Or it might be
Speaker 3: that some members of the Court think that it's okay
Speaker 3: to give the Trump administration little wins as long as
Speaker 3: it don't buckle in in a major case. That remains,
Speaker 3: of course, is totally specult. That remains to be seen.
Speaker 3: You know, I think this as just the one data point.
Speaker 3: We're going to see the others again, because there's more
Speaker 3: cases that are pending before we can make any kount
Speaker 3: of judgment.
Speaker 1: In its papers, the administration is casting the Supreme Court
Speaker 1: request as having broader significance for the other lawsuits pending.
Speaker 1: The Acting Solicitor General wrote, only this court can right
Speaker 1: the ship, and the time to do so is now.
Speaker 1: I mean, there's a message there that this is broader
Speaker 1: than just this case.
Speaker 3: Well, it's broader in the sense of the jurisdictional posture.
Speaker 3: And what the acti solcial General may mean is that
Speaker 3: from now on, all of these cases have been brought
Speaker 3: before the Court of Federal Claims. And the question is
Speaker 3: whether the Court of Federal Claims has the capacity to
Speaker 3: hear all of these cases and to decide them quickly.
Speaker 3: But this is not a victory on the merits because
Speaker 3: as we discussed, I mean, the quote mentioned not one
Speaker 3: win of the fact that the administration has the legal
Speaker 3: power to do what it did. Its only question is
Speaker 3: where the lawsuit should be situated.
Speaker 2: As of today.
Speaker 1: So the Trump administration today appealed because they don't want
Speaker 1: to bring the prisoner back from Venezuela. So that is
Speaker 1: the seventh administration appealed to the Supreme Court on the
Speaker 1: emergency docket. There are some other ones that seem more urgent.
Speaker 1: I'm wondering why they picked this one.
Speaker 3: I really can't speculate on this one. The only sort
Speaker 3: of guesswork that I could come up with is that
Speaker 3: this is not as important as the other ones, and
Speaker 3: so they wanted to again give Trump a small win
Speaker 3: before they would have to really buckle down and reach
Speaker 3: the merits of a case as opposed to just deciding
Speaker 3: on jurisdictional grounds.
Speaker 1: So there have been lots of articles lately. You mentioned
Speaker 1: Justice Barrett. There have been lots of articles about how
Speaker 1: she might become a moderate justice, siding more with the
Speaker 1: middle of the court. But in something like ninety percent
Speaker 1: of the cases she sides with the conservatives, and so
Speaker 1: I'm wondering if all this is a little overblown. Because
Speaker 1: she sided with the liberals in a few.
Speaker 3: Cases, there is at least a progression of justice spirit
Speaker 3: towards the middle, and everybody is holding the breath and
Speaker 3: watching to see what will happen. I think that that
Speaker 3: progression may well continue, but that's speculation, but I am
Speaker 3: very convinced that she will have the opportunity because you're
Speaker 3: going to be a slew of controversial cases that will
Speaker 3: have to be decided by the court.
Speaker 1: Coming up next on the Bloomberg Lawn Show, I'll continue
Speaker 1: this conversation with Professor Harold Krent. The latest on the
Speaker 1: marilynd man who was wrongly deported to a notorious prison
Speaker 1: in L. Salvador. I'm June Grosso. When you're listening to Bloomberg.
Speaker 1: Albrego Garcia had been lawfully living in Maryland with his
Speaker 1: wife and young child, both US citizens. A twenty nineteen
Speaker 1: immigration court order said he could be deported, but not
Speaker 1: to L. Salvador, where he says he'd face gang based
Speaker 1: extortion and persecution. Nonetheless, immigration officials arrested him on March
Speaker 1: twelfth and accused him of playing a prominent role in
Speaker 1: MS thirteen, though he hasn't been convicted of a crime
Speaker 1: or even charged with one. Garcia was deported to L.
Speaker 1: Salvador to its notorious prison there on March fifteenth. Despite
Speaker 1: the court order. A federal judge gave the government until
Speaker 1: eleven fifty nine pm Eastern time tonight to return him,
Speaker 1: and a federal appeals court unanimously declined to block that order,
Speaker 1: so the Trump administration went to the Supreme Court asking
Speaker 1: it to block the order. Late this afternoon, Chief Justice
Speaker 1: John Roberts paused the order, requiring his return by tonight.
Speaker 1: The Supreme Court is now considering the case, with the
Speaker 1: Chief Justice asking Garcia's attorneys to file a response by
Speaker 1: tomorrow at five pm. I've been talking to Professor Harold
Speaker 1: Krant of the Chicago Kent College of Law how the
Speaker 1: Trump administration has very close contacts with the president of
Speaker 1: l Salvador, and they now have a multimillion dollar contract
Speaker 1: to house deporties in the prison in El Salvador. Yet
Speaker 1: the administration is claiming they don't have the power to
Speaker 1: get him back.
Speaker 2: That strikes me as just not believable.
Speaker 3: It does seem ludicrous, And this whole case is just
Speaker 3: so sad. I mean, there's an individual who was pulled
Speaker 3: out of his car driving with his young son, who
Speaker 3: has a order from an immigration judge that says he
Speaker 3: has to be protected and not sent back to El Salvador.
Speaker 3: So what do the authorities do? They without giving me
Speaker 3: any kind of du process, without ascertaining or giving him
Speaker 3: a chance to tell his side of the story. They
Speaker 3: cut him off to various places in the country and
Speaker 3: ultimately send him to El Salvador, where there's judicial order
Speaker 3: saying he can't be sent and when there is a
Speaker 3: question in court, the attorney doesn't know the answer, and
Speaker 3: all he can think of is that there was an
Speaker 3: administrative mistake, and that's what happens when there's no due process.
Speaker 3: Administrative mistakes can turn out to be in a tragedy.
Speaker 3: And then the court says, well, bring him back, and
Speaker 3: the Trump administration says and actually goes to the Supreme
Speaker 3: Court and says, that's too broad of an order because
Speaker 3: we don't know whether we can bring him back. And
Speaker 3: of course I'm empathetic to a certain extent that the
Speaker 3: administration may not be able to get him back in
Speaker 3: a day. But given the fact that they have something
Speaker 3: like a six million dollar contract with El Salvador to
Speaker 3: house these individuals, one would think that they have with
Speaker 3: enough kind of financial pressure that can be applied upon
Speaker 3: El Salvador to release the individual at least within a
Speaker 3: matter of days. And it's a truly outrageous case. And
Speaker 3: I have to think that Supreme Court is going to
Speaker 3: say that maybe the lower court judge needs to narrow
Speaker 3: the injunction a little bit to use you know, all
Speaker 3: speed in order to bring him back, or give them
Speaker 3: a week or something to bring the guy back. But
Speaker 3: it's just, you know, an administrator's mistake leads to sending
Speaker 3: somebody away from his family, somebody who's in now being
Speaker 3: housed with people that he has a protective order against.
Speaker 3: It's just simply outrageous.
Speaker 2: Do you think the Trump administration is doing this?
Speaker 1: Because if they admit this one, if they bring this
Speaker 1: one back, and it opens the floodgates, because you have
Speaker 1: all these people, none of them was given a hearing.
Speaker 3: You know, I think that here. You know, whether or
Speaker 3: not mister Garcia was a member or is a member
Speaker 3: of the gang is unclear, but certainly he has an
Speaker 3: order to prevent him from doing this. And we don't
Speaker 3: even know about the other individuals. Right, some were probably
Speaker 3: gang members, but some were mistaken because of their tattoos
Speaker 3: or their friends, et cetera, et cetera. And this again
Speaker 3: is just a clear example of what happens when you
Speaker 3: don't follow process, and the administration doesn't want to follow process,
Speaker 3: and so mistakes are made, mistakes can be fatal. I'm
Speaker 3: glad in some ways you're going to Supreme Court because
Speaker 3: I think on the merits, I think the Supreme Court
Speaker 3: is going to really administration a loss. Again, I don't
Speaker 3: know about the scope of the injunction or the speed
Speaker 3: with which they have to bring him back, but there's
Speaker 3: no way that the court can justify what happened here
Speaker 3: because it is a tragedy.
Speaker 1: Out of seven emergency applications, this seems to be the
Speaker 1: first one that is really an emergency.
Speaker 3: Yeah, and again I think that the Court is itself
Speaker 3: backed into a corner by using its emergency doctrine so frequently.
Speaker 3: But I agree this one is an emergency. The individual's
Speaker 3: life is probably in danger and his rights were incredibly violated,
Speaker 3: and so I hope that the Court does use its
Speaker 3: emergent and see docket to affirm what the lower court
Speaker 3: has ordered, because that will ensure that the administration acts
Speaker 3: with far greater swiftness than otherwise might do. Awesome, incredible
Speaker 3: after this recent hearing on Friday, is that the Attorney
Speaker 3: General suspended the government's attorney for being frank before the
Speaker 3: court and acknowledging that they don't know why this individual
Speaker 3: was arrested, and they didn't know why that there had
Speaker 3: been no effort to bring him back once they were
Speaker 3: alerted of the mistake, and his price for being frank
Speaker 3: with the court was the fact that the Attorney General
Speaker 3: suspended him for being insufficiently loyal to the administration. A
Speaker 3: chilling moment.
Speaker 1: Well, it looks like the court is acting very quickly
Speaker 1: in this case, because the Chief Justice has ordered Garcia's
Speaker 1: lawyers to respond by five pm tomorrow.
Speaker 2: Thanks so much. How well, that's.
Speaker 1: Professor Harold Krent of the Chicago Kent College of Law.
Speaker 1: Turning now to Trump's battles with federal unions. Trump is
Speaker 1: making a sweeping attack on collective bargaining rights as he
Speaker 1: aims to lay off government workers. The administration has moved
Speaker 1: to invalidate contracts between a swathe of US government agencies
Speaker 1: and the two largest unions representing federal workers, claiming that
Speaker 1: the collective bargaining agreements are impeding his efforts to reform
Speaker 1: the government and pose a threat to national security. But
Speaker 1: the unions are fighting back in court. The American Federation
Speaker 1: of Government Employees and the National Treasury employees. Union have
Speaker 1: sued the Trump administration in separate lawsuits, saying it's violated
Speaker 1: the Constitution with its anti union directive, including violating its
Speaker 1: free speech and due process rights. My guest is labor
Speaker 1: law expert and Lafasso a perfer asked with the University
Speaker 1: of Cincinnati.
Speaker 2: College of Law.
Speaker 1: So this started with the Trump executive order instructing agencies
Speaker 1: to stop collective bargaining with federal unions because of national
Speaker 1: security concerns. Tell us about the order and the law
Speaker 1: he's using.
Speaker 4: He is issued in executive order based on five USC.
Speaker 4: Seventy one oh three, and it's really piggybacking on an
Speaker 4: old executive order that Jimmy Carter issued. And Jimmy Carter
Speaker 4: issued that executive order shortly after the Act that created
Speaker 4: the Fair Labor Relations Authority, which is the authority that
Speaker 4: deals with federal employees. It's the act that gave federal
Speaker 4: employees the rights to unite. And that act says that one,
Speaker 4: it gives them the right to organize, but certain employees
Speaker 4: don't have the right to organize because of national security,
Speaker 4: and then it kind of lists a few of those,
Speaker 4: but then it gives the president power to issue an
Speaker 4: order excluding any agency or subdivision thereof from coverage under
Speaker 4: this Chapter if the President determines that the agency or
Speaker 4: subdivision has as a primary function intelligence, counter intelligence, investigative,
Speaker 4: or national security work, and the provisions of this Chapter
Speaker 4: cannot be applied to that agency or subdivision in a
Speaker 4: manner consistent with national security requirements and considerations. So even
Speaker 4: though all of these employees have somehow been unionized and
Speaker 4: it's been consistent with national security, he is stated in
Speaker 4: his executive order that he has to do this because
Speaker 4: of national security reasons and considerations, and that's the important word, considerations,
Speaker 4: because a lot, it is a lot. This is disenfranchising many, many,
Speaker 4: many employees. So in his view, the fact that they're
Speaker 4: in a union and their collective bargaining agreement has made
Speaker 4: it difficult for him to implement his national security policy.
Speaker 4: That's in and of itself a really broadsweeping order that
Speaker 4: no president has ever done. Not even after nine to
Speaker 4: eleven did we have anything like this. We did have
Speaker 4: some issues back in nine to eleven, and but much
Speaker 4: more narrow and national security was much heightened back then
Speaker 4: when we actually had a threat on the ground.
Speaker 1: So after issuing the executive order, the Trump administration doesn't
Speaker 1: wait to be sued. Instead, it sues in federal court
Speaker 1: in Texas.
Speaker 4: He wants to get around the idea of waiting for
Speaker 4: all this to happen. So what he did was he
Speaker 4: filed a complaint in the West Eastern District of Texas,
Speaker 4: which is a very favorable district to the president's agenda,
Speaker 4: and he filed this in the Western District of Texas,
Speaker 4: asking for a declaratory judgment. Now, a declaratory judgment is
Speaker 4: under the Declaratory Judgment Act, the Declaratory Judgment Act. It's
Speaker 4: an old statute, but it is used, and it was
Speaker 4: a way to distinguish between something called advisory opinions and
Speaker 4: declaratory judgments. Advisory opinions are not allowed, and declaratory judgments are.
Speaker 4: An advisory opinion is when the president asked the Supreme
Speaker 4: Court for its opinion on whether something's constitutional. So Jefferson
Speaker 4: did that way back when in the early eighteen hundreds,
Speaker 4: and the Supreme Court said, justin Marshall said no, no, no,
Speaker 4: we can't answer that question. That's an advisory opinion, and
Speaker 4: that's up to you to decide, and you do it
Speaker 4: and then if you get sued, we will decide that.
Speaker 4: And in fact, that's how the Office of Legal Counsel
Speaker 4: eventually got made because in the Office of Legal Council
Speaker 4: is an executive branch agency that counsels the president on
Speaker 4: the constitutionality of his her their acts. So the first
Speaker 4: question here is is this really declaratory judgment? And as
Speaker 4: he able to do this, so put aside whether this
Speaker 4: actually fits into the category of declaratory judgment and whether
Speaker 4: it fits into the category of advisory opinions. What he's
Speaker 4: doing is he is intentionally and I don't blame him
Speaker 4: for this in terms of the mindset going to a
Speaker 4: favorable court what's called forum shopping. There's little doubt in
Speaker 4: my mind that this judge will find in favor of Trump,
Speaker 4: and we'll go to the Fifth Circuit and the Fifth
Speaker 4: Circuit will find in favor of Trump. And where does
Speaker 4: that leave you the Supreme Court if it decides to
Speaker 4: take the case.
Speaker 1: Coming up next on the Bloomberg Law Show, the Union
Speaker 1: Sue one in California and one in DC. I'm June
Speaker 1: Grosso and you're listening to Bloomberg. The Trump administration is
Speaker 1: moving to invalidate contracts between a swamp of US government
Speaker 1: agencies and the two largest unions representing federal workers, claiming
Speaker 1: that the collective bargaining agreements are impeding efforts to reform
Speaker 1: the government and pose a threat to national security. The
Speaker 1: unions are fighting back in court, suing the Trump administration
Speaker 1: saying it violated the Constitution with its anti union directive,
Speaker 1: including violating its free speech and due process rights. I've
Speaker 1: been talking to Professor Ann Lafasso of the University of
Speaker 1: Cincinnati College of Law and tell us about some of
Speaker 1: the legal questions that come up because of these Trump
Speaker 1: administration moves.
Speaker 4: So this really raises a lot of questions. It raises
Speaker 4: libor law questions and constitutional law questions. So FIRSUS canny
Speaker 4: do it, Well, that's what the litigation is going to decide.
Speaker 4: So he's going to say that he can do it
Speaker 4: because of national security, and on the face of the
Speaker 4: statute that is true. He can do things in national security,
Speaker 4: but you can't just declare national security. They are certainly
Speaker 4: taking a broad reading of this statute in a way
Speaker 4: that the courts don't want broad readings of statutes right now.
Speaker 4: They don't want that kind of delegation of authority. They've
Speaker 4: been very very quick to say, uh uh uh, this
Speaker 4: is too much. Congress didn't delegate this type of authority
Speaker 4: to anyone, and that's not what the president can do. Okay,
Speaker 4: that's possible. That's one thing. Another thing would be, well,
Speaker 4: it has me consistent with national security. Well, he's arguing
Speaker 4: that it's the collective bargaining agreement. We turn to work
Speaker 4: policies that are problematic, and he says.
Speaker 3: Some of them.
Speaker 4: So wouldn't the solution be if that's true, the dispute
Speaker 4: is really about the collective bargaining agreements and you avoid
Speaker 4: them because of national security is concerned, And wouldn't that
Speaker 4: just go to the FLRA as an administrative proceedings.
Speaker 1: The FLRA being the Federal Labor Relations Authority. We'll talk
Speaker 1: about that in a moment. Let's turn to the two
Speaker 1: lawsuits by the unions. What are their chief contentions?
Speaker 4: The unions are steering and they have three main arguments. First,
Speaker 4: they're claiming that Trump violated their First Amendment rights by
Speaker 4: retaliating against them because they spoke in a way that
Speaker 4: he deems to be anti Trump. Second, they say that
Speaker 4: Trump's order violates the Fifth Amendments Due Process Clause. The
Speaker 4: Fifth Amendments Due Process Clause is like the Fourteenth Amendment,
Speaker 4: but it applies to the federal government about the state governments.
Speaker 4: And they say that the violates due process because they
Speaker 4: literally stripped these employees of their contractual rights without any
Speaker 4: due process, which they are titles to under the Fifth Amendment.
Speaker 4: And three, they say that the executive order violates the
Speaker 4: separation of powers. From this argument means that Congress made
Speaker 4: a statute about fifty years ago. That statue get broadly
Speaker 4: granted union rights to federal employees with few exceptions. And
Speaker 4: then presidents have under that act narrow authority to designate
Speaker 4: certain executive agencies or subdivisions that they deem should not
Speaker 4: be organized at the moment because of national security reasons.
Speaker 4: And presidents starting with Jimmy Carter have used that clause,
Speaker 4: but only to designate very small parts of the of
Speaker 4: the federal agencies. This case actually does a sweeping broad
Speaker 4: declaration of unionizing or evoking the recognition of the union
Speaker 4: rights of many they're claiming most federal employees. So the
Speaker 4: AFL and the unions are claiming, which is if you
Speaker 4: look at the list it is expansive, it's tweeping, it's
Speaker 4: very broad, it is shocking. Actually, So those are the
Speaker 4: three things that they are arguing.
Speaker 1: Does this all have to do with his attempt to
Speaker 1: fire federal workers? So he's trying to eliminate the union connection,
Speaker 1: so he.
Speaker 4: Can do this okay, meaning he has authority to do this.
Speaker 4: Whether he has authority to do with this broadly is
Speaker 4: very different. So this is clearly part of his agenda
Speaker 4: to fire the employees because they won't have the collective
Speaker 4: bargaining rights. They'll still have certain statutory rights, but they
Speaker 4: won't have their collective bargaining rights, and this way they
Speaker 4: can fire them more easily, possibly because they're still statutory rights.
Speaker 4: I mean, if you have a contract rather than being
Speaker 4: at well, you have a lot more rights. Everyone would
Speaker 4: prefer a contract to being at well.
Speaker 2: Have these union workers been fired already? Do we know?
Speaker 4: I mean, there's so many that I do not know
Speaker 4: whether any of these have been fired. My guess is
Speaker 4: that possibly some of them have been fired, but not
Speaker 4: every single one. But it's so expansive it can't be
Speaker 4: that I would be surprised if all of these were fired,
Speaker 4: because it would be the government, right, But you know,
Speaker 4: you have to ask yourself, really administrative assistants have a
Speaker 4: national security role. I mean some might. You know, he
Speaker 4: has the entire Department of the Treasury except the Bureau
Speaker 4: of Engraving and Printing, the entire Department of Veterans Affairs,
Speaker 4: the entire Department of Justice, the entire Department of State,
Speaker 4: the entire Department of Defense except for any subdivisions excluded previously,
Speaker 4: so that means they're already in there. The Department of
Speaker 4: Health and Human Services specifically, and it lists seven agencies,
Speaker 4: and then Homeland Security it's lists twelve subagencies. I mean,
Speaker 4: this is expansive, This is really real a lot of employees,
Speaker 4: and that is what the shocking part of this is.
Speaker 4: Now again, like after nine to eleven, you think something
Speaker 4: Bush might have done something like this, but he didn't
Speaker 4: do this broad sea recognition of union workers, and that
Speaker 4: must have been a time that was much more problematic
Speaker 4: in terms of national security. And the complaint that he
Speaker 4: files in the Western District of Texas specifically focuses on
Speaker 4: the word considerations, so national security considerations, which is a
Speaker 4: fuzzy word, so he's not claiming that there's actual national
Speaker 4: security urgency here, And one thing is important for people
Speaker 4: to understand is that national security is like to get
Speaker 4: out jail free cards for the government. When they say
Speaker 4: national security, that means the courts look at that very
Speaker 4: seriously because they like to defer to the president of
Speaker 4: national security. But imagine if the president just has to
Speaker 4: use the magic words, wave his hand, and then anything
Speaker 4: he does is then a matter of national security, that
Speaker 4: he could do whatever you want.
Speaker 3: So this is such a broad.
Speaker 4: Sweeping interpretation that further consolidates power in the hands of
Speaker 4: the president and the executive agencies. Now he's actually delegating
Speaker 4: that authority the agencies themselves, so he's actually telling them
Speaker 4: that they have to do this. So that's another end
Speaker 4: run around this to some extent, is that the president
Speaker 4: is not suing. The agencies are suing, but it's the
Speaker 4: president who acted, and then they acted under the president's authority.
Speaker 4: So that's an interesting twist. This is raising all kinds
Speaker 4: of issues that are new, that are stretching the law
Speaker 4: in a way that I have never personally have not seen.
Speaker 1: Is the Trump administration also sort of trying to paralyze
Speaker 1: the FLRA by firing the board chair.
Speaker 4: Yes, And he also fired the entire impasses panel last week.
Speaker 4: So the impasses panel is what decides disputes. When the
Speaker 4: parties are at impass over something, then it goes to
Speaker 4: the impassive panel. So if they're bargaining over a contract
Speaker 4: right now, there's no impasses panel. Every single one of
Speaker 4: them was fired last week. I mean that's I guess, right,
Speaker 4: So that's the board. Those are the big guys. Those
Speaker 4: are the big shots, right, and now they're special government employees.
Speaker 4: They're paid minimally, they're paid by the hour. They're not
Speaker 4: full employees. It's a part time job. So the personal
Speaker 4: effects on them is much much weaker than what's happening
Speaker 4: to these actual employees. But it has the same effect
Speaker 4: on the government, which is to make it dysfunctional. So
Speaker 4: what he's done is is use this authority in the
Speaker 4: name of national security to fire most the unionized workforce
Speaker 4: in the federal government under the guise of national security.
Speaker 4: And at the same time he's gotten rid of the
Speaker 4: agencies but could actually resolve these seats like the FLRI.
Speaker 1: What will happen if you end up with conflicting orders
Speaker 1: from Texas and let's say California, which seems likely.
Speaker 4: Well, this is interesting because Texas they're asking for a
Speaker 4: nationwide declaratory judgment. I would say, there's likely to be
Speaker 4: some conflict, and there's so many issues here because one
Speaker 4: issue is can there be parallel seats. So the Trump administration,
Speaker 4: I certain will argue that there can't be parallel seats
Speaker 4: in the one in the Western District of Texas is
Speaker 4: the correct one. And the unions are going to argue
Speaker 4: that whether or not there can be parallel seats, his
Speaker 4: suits cannot be sustained because there's no declaratory judgment that
Speaker 4: is permitted, that his case doesn't fit under the Declaratory
Speaker 4: Judgment Act. So that's what they're so Again, the presidents
Speaker 4: have used this authority, but never in this broad sweeping way,
Speaker 4: and it reads very much like an m run around
Speaker 4: the unions in terms of the rights of the employees,
Speaker 4: their due process rights, their rights under their contracts, or
Speaker 4: their contractual rights, all in the name of this so
Speaker 4: called national security consideration that is undefined.
Speaker 1: We'll see how it all plays out in three different courts.
Speaker 2: Thanks so much.
Speaker 1: And that's Professor An Lafasso of the University of Cincinnati
Speaker 1: College of law. And that's it for this edition of
Speaker 1: The Bloomberg Law Show. Remember you can always get the
Speaker 1: latest legal news on our Bloomberg Law Podcast. You can
Speaker 1: find them on Apple Podcasts, Spotify, and at www dot
Speaker 1: bloomberg dot com, slash podcast slash Law, and remember to
Speaker 1: tune into The Bloomberg Law Show every weeknight at ten
Speaker 1: pm Wall Street Time. I'm June Grosso and you're listening
Speaker 1: to bloomber