Latest / Bloomberg Law / First Trump SCOTUS Win & Battle With Unions

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First Trump SCOTUS Win & Battle With Unions · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: In a five to four vote, the Supreme Court intervened
0:12
Speaker 1: for the first time to bolster President Donald Trump's campaign
0:16
Speaker 1: to wipe out federal spending programs he opposes.
0:20
Speaker 2: In a Friday order, five of the.
0:22
Speaker 1: Court's conservative justices cleared the Education Department to withhold money
0:27
Speaker 1: for teacher training projects in eight Democratic states. The Education
0:32
Speaker 1: Department had canceled one hundred four of one hundred and
0:35
Speaker 1: nine grants under two training programs because of concerns about diversity, equity,
0:41
Speaker 1: and inclusion. The justices halted a trial court ruling that
0:45
Speaker 1: had temporarily required the department to keep covering incurred expenses.
0:50
Speaker 1: Chief Justice John Roberts and the court's three liberal justices
0:54
Speaker 1: indicated they would have denied the government's request. Joining me
0:58
Speaker 1: is an expert in constitutional law. Harold Krant, a professor
1:01
Speaker 1: with the Chicago Kent College of Law, tell us about
1:05
Speaker 1: the cancelation of the grants and the lawsuit by eight
1:09
Speaker 1: Democratic states over.
1:10
Speaker 3: That the Education Department had decided that, for whatever reason,
1:16
Speaker 3: the too many teacher training grants had been awarded and
1:20
Speaker 3: therefore decided to claw them back. They clawed them back
1:24
Speaker 3: on the grounds that the grants might have in some
1:28
Speaker 3: ways contributed to illegal dei initiatives, So that's unclear, and
1:34
Speaker 3: they used that reason for all of them. Un mass.
1:37
Speaker 3: They didn't individually pick out a grant to the Chicago
1:41
Speaker 3: schools versus New York schools versus their college training program.
1:44
Speaker 3: They basically issued boilerplate stopping millions of dollars of grants
1:50
Speaker 3: with no specificity, just using boilerplate language. The lawsuit then
1:56
Speaker 3: was filed to attack the administration's to stop the grants,
2:02
Speaker 3: and the trial judge issued a tro saying that the
2:07
Speaker 3: government had to continue honoring the grants until there was
2:11
Speaker 3: a full decision on the merits of the case. And
2:14
Speaker 3: that's the status of the issue, which was then raised
2:18
Speaker 3: first to the Appellate Court and finally to the Supreme
2:21
Speaker 3: Court on its emergency docket, and the Supreme Court gave
2:26
Speaker 3: the Trump administration a small victory on Friday by saying
2:30
Speaker 3: that the court should not have an issue the temporary
2:34
Speaker 3: restraining order which turned into a quasi injunction in the case,
2:40
Speaker 3: and they should have allowed determination to take effect at
2:43
Speaker 3: least until deciding the merits of the case.
2:46
Speaker 1: In everything to do with DEI. The Trump administration says
2:49
Speaker 1: that DEI is unlawful. Is there support for that theory?
2:55
Speaker 3: Well, in some conceivable contexts, it might be if you
3:00
Speaker 3: end up favoring, you know, women over men for some reason,
3:04
Speaker 3: or if you end up favoring a particular religious group
3:07
Speaker 3: as opposed to another in an effort to attain DEI objectives,
3:12
Speaker 3: that would violate the civil rights laws as well as
3:15
Speaker 3: the Constitution argically, But there's been no showing that that's
3:19
Speaker 3: what's happening in these grants in particular or in other areas.
3:23
Speaker 3: So the administration is just drawing with a huge broad
3:28
Speaker 3: brush and saying that if you talk about issues of
3:31
Speaker 3: fairness justice, that's a pan amount to violating either the
3:36
Speaker 3: statue or the Constitution.
3:38
Speaker 1: Explain what the majority said in its opinion. Why did
3:41
Speaker 1: they decide this way?
3:43
Speaker 3: The real question is why did the Supreme Court take
3:45
Speaker 3: this case at this juncture. But in terms of what
3:47
Speaker 3: it's said, the most reasonable part of what it stated
3:51
Speaker 3: was that the lawsuit was filed in the law court.
3:55
Speaker 3: The theory is that at the bottom of this claim
3:58
Speaker 3: is a claim for namely, that the grant should be funded.
4:02
Speaker 3: That is a claim for money, and therefore the plaintiff
4:06
Speaker 3: should have rallied their claim to the Court of Federal Claims,
4:08
Speaker 3: which is the tribunal that Congress has directed for all
4:15
Speaker 3: pursuit of monetary claims against the government. And that's a
4:19
Speaker 3: reasonable argument. There is some fuzziness about the Court president
4:23
Speaker 3: about when a claim is won for money. So you
4:27
Speaker 3: could stay in this case that it's about money, or
4:29
Speaker 3: it's about not having your grants arbitrary and capriciously violated.
4:33
Speaker 3: There's two ways to look at it, and so the
4:36
Speaker 3: court will have to make that decision. Indeed, that is
4:38
Speaker 3: a common issue for almost all of the grants, the
4:42
Speaker 3: hundreds of millions of dollars of grants that the Trump
4:45
Speaker 3: administration has terminated in order to.
4:47
Speaker 1: Do this, the majority found that the Trump administration would
4:51
Speaker 1: likely win the case.
4:53
Speaker 3: Well, they didn't say that, interestingly enough, they never talked
4:56
Speaker 3: about well, they never talked about the merits of whether
4:58
Speaker 3: or not the Trump administration had the power to deny
5:02
Speaker 3: the grants. But they did say that the Trump administration
5:07
Speaker 3: may well win on the jurisdictional issue, and so that
5:10
Speaker 3: will have to be decided at some point by the
5:12
Speaker 3: Court's appeals and then, most likely by the Supreme Court,
5:15
Speaker 3: because it is an issue that is underlying all of
5:20
Speaker 3: these massive grant cases. With respect to the River Bull Harm,
5:24
Speaker 3: the Court was on shakier ground. They seemed to say
5:27
Speaker 3: that the planters all had enough money to continue the
5:30
Speaker 3: programs and weren't relying on these grants. And while that
5:34
Speaker 3: might be true for a five day period, it certainly
5:37
Speaker 3: will not be true for any extended period of time
5:40
Speaker 3: while the litigation continues. So its decision with respect to
5:45
Speaker 3: harm is very questionable. But again, I think with respect
5:48
Speaker 3: to jurisdiction, the Supreme Court at least made a plausible decision.
5:53
Speaker 1: So the Chief Justice John Roberts sided with the Court's
5:57
Speaker 1: three liberals who dissented. Kagan wrote a descent, and Justice
6:02
Speaker 1: Jackson wrote a descent that Justice Soda Mayor joined in,
6:07
Speaker 1: but the Chief didn't join in any of those.
6:10
Speaker 3: It's hard to read the Chief Justice's position here. I mean,
6:13
Speaker 3: at the end of the day, it might be that
6:15
Speaker 3: he resents the Trump administration demanding that the Court used
6:20
Speaker 3: this emergency docket to decide all these cases, and I
6:23
Speaker 3: think there are still at these five or six more pending.
6:26
Speaker 3: That may have been the reason, but we certainly don't know,
6:29
Speaker 3: because he didn't express it. Justice Bart obviously was the
6:32
Speaker 3: interesting vote because she switched from the prior Supreme Court decision,
6:37
Speaker 3: which cided against President Trump's administration on somewhat similar grounds.
6:42
Speaker 3: So whether she has changed her mind, whether there was
6:46
Speaker 3: something unique about this case, again, we simply don't know.
6:50
Speaker 1: Justice Tanji Brown Jackson in descent, said that it was
6:54
Speaker 1: beyond puzzling that a majority of justice is conceived of
6:58
Speaker 1: the government's application as an emergency. I mean, where is
7:01
Speaker 1: the emergency here?
7:03
Speaker 3: The only emergency is the fact that the money might
7:08
Speaker 3: be spent in the interim for the grants and that
7:12
Speaker 3: the Trump administration will not be able to recollect it.
7:15
Speaker 3: And I think that is probably true to some extent.
7:19
Speaker 3: That would be very difficult for the Trump administration to
7:21
Speaker 3: get back the money because it will be spent, you know,
7:24
Speaker 3: on what Congress wanted to be spent on, which is
7:27
Speaker 3: teacher training.
7:28
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
7:34
Speaker 1: the papers does the government defend the legality of canceling
7:38
Speaker 1: the education grants.
7:40
Speaker 3: Yeah, I mean, the question was one of jurisdiction, but
7:42
Speaker 3: in terms of whether the administration had the power to
7:45
Speaker 3: cancel the grants. There was silence part of the Trump
7:48
Speaker 3: administration because there is not clear law that would authorize
7:54
Speaker 3: the administration to basically cancel the grants because it no
7:59
Speaker 3: longer sees them as a priority. I mean, if they
8:02
Speaker 3: could show that these grants were in some ways fostering illegality,
8:06
Speaker 3: then they would have cause to cancel the grants. But
8:10
Speaker 3: otherwise the administration needs to honor them, and that they
8:14
Speaker 3: have not done.
8:15
Speaker 1: As of today, the Trump administration has made seven emergency
8:20
Speaker 1: filings with the Supreme Court. This is the first time
8:24
Speaker 1: they've won. Do you see any significance in that.
8:28
Speaker 3: I don't. I mean, I think that this might be
8:31
Speaker 3: terribly thought. This might be a case in which the
8:33
Speaker 3: jurisdictional issue is thorny, and therefore the Court thinks that
8:37
Speaker 3: it's likely going to ultimately be decided and favor the
8:41
Speaker 3: Trump administration, and that is plausible. Or it might be
8:45
Speaker 3: that some members of the Court think that it's okay
8:47
Speaker 3: to give the Trump administration little wins as long as
8:50
Speaker 3: it don't buckle in in a major case. That remains,
8:54
Speaker 3: of course, is totally specult. That remains to be seen.
8:57
Speaker 3: You know, I think this as just the one data point.
8:59
Speaker 3: We're going to see the others again, because there's more
9:02
Speaker 3: cases that are pending before we can make any kount
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Speaker 3: of judgment.
9:05
Speaker 1: In its papers, the administration is casting the Supreme Court
9:10
Speaker 1: request as having broader significance for the other lawsuits pending.
9:16
Speaker 1: The Acting Solicitor General wrote, only this court can right
9:20
Speaker 1: the ship, and the time to do so is now.
9:23
Speaker 1: I mean, there's a message there that this is broader
9:28
Speaker 1: than just this case.
9:30
Speaker 3: Well, it's broader in the sense of the jurisdictional posture.
9:34
Speaker 3: And what the acti solcial General may mean is that
9:38
Speaker 3: from now on, all of these cases have been brought
9:40
Speaker 3: before the Court of Federal Claims. And the question is
9:43
Speaker 3: whether the Court of Federal Claims has the capacity to
9:47
Speaker 3: hear all of these cases and to decide them quickly.
9:51
Speaker 3: But this is not a victory on the merits because
9:54
Speaker 3: as we discussed, I mean, the quote mentioned not one
9:57
Speaker 3: win of the fact that the administration has the legal
10:01
Speaker 3: power to do what it did. Its only question is
10:04
Speaker 3: where the lawsuit should be situated.
10:06
Speaker 2: As of today.
10:07
Speaker 1: So the Trump administration today appealed because they don't want
10:10
Speaker 1: to bring the prisoner back from Venezuela. So that is
10:14
Speaker 1: the seventh administration appealed to the Supreme Court on the
10:18
Speaker 1: emergency docket. There are some other ones that seem more urgent.
10:22
Speaker 1: I'm wondering why they picked this one.
10:24
Speaker 3: I really can't speculate on this one. The only sort
10:27
Speaker 3: of guesswork that I could come up with is that
10:30
Speaker 3: this is not as important as the other ones, and
10:32
Speaker 3: so they wanted to again give Trump a small win
10:36
Speaker 3: before they would have to really buckle down and reach
10:39
Speaker 3: the merits of a case as opposed to just deciding
10:41
Speaker 3: on jurisdictional grounds.
10:44
Speaker 1: So there have been lots of articles lately. You mentioned
10:47
Speaker 1: Justice Barrett. There have been lots of articles about how
10:51
Speaker 1: she might become a moderate justice, siding more with the
10:55
Speaker 1: middle of the court. But in something like ninety percent
10:59
Speaker 1: of the cases she sides with the conservatives, and so
11:03
Speaker 1: I'm wondering if all this is a little overblown. Because
11:06
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
11:14
Speaker 3: towards the middle, and everybody is holding the breath and
11:18
Speaker 3: watching to see what will happen. I think that that
11:21
Speaker 3: progression may well continue, but that's speculation, but I am
11:26
Speaker 3: very convinced that she will have the opportunity because you're
11:29
Speaker 3: going to be a slew of controversial cases that will
11:31
Speaker 3: have to be decided by the court.
11:33
Speaker 1: Coming up next on the Bloomberg Lawn Show, I'll continue
11:35
Speaker 1: this conversation with Professor Harold Krent. The latest on the
11:39
Speaker 1: marilynd man who was wrongly deported to a notorious prison
11:43
Speaker 1: in L. Salvador. I'm June Grosso. When you're listening to Bloomberg.
11:47
Speaker 1: Albrego Garcia had been lawfully living in Maryland with his
11:51
Speaker 1: wife and young child, both US citizens. A twenty nineteen
11:55
Speaker 1: immigration court order said he could be deported, but not
11:58
Speaker 1: to L. Salvador, where he says he'd face gang based
12:02
Speaker 1: extortion and persecution. Nonetheless, immigration officials arrested him on March
12:08
Speaker 1: twelfth and accused him of playing a prominent role in
12:11
Speaker 1: MS thirteen, though he hasn't been convicted of a crime
12:15
Speaker 1: or even charged with one. Garcia was deported to L.
12:19
Speaker 1: Salvador to its notorious prison there on March fifteenth. Despite
12:24
Speaker 1: the court order. A federal judge gave the government until
12:27
Speaker 1: eleven fifty nine pm Eastern time tonight to return him,
12:32
Speaker 1: and a federal appeals court unanimously declined to block that order,
12:37
Speaker 1: so the Trump administration went to the Supreme Court asking
12:40
Speaker 1: it to block the order. Late this afternoon, Chief Justice
12:44
Speaker 1: John Roberts paused the order, requiring his return by tonight.
12:49
Speaker 1: The Supreme Court is now considering the case, with the
12:52
Speaker 1: Chief Justice asking Garcia's attorneys to file a response by
12:56
Speaker 1: tomorrow at five pm. I've been talking to Professor Harold
13:00
Speaker 1: Krant of the Chicago Kent College of Law how the
13:03
Speaker 1: Trump administration has very close contacts with the president of
13:08
Speaker 1: l Salvador, and they now have a multimillion dollar contract
13:13
Speaker 1: to house deporties in the prison in El Salvador. Yet
13:17
Speaker 1: the administration is claiming they don't have the power to
13:20
Speaker 1: get him back.
13:22
Speaker 2: That strikes me as just not believable.
13:25
Speaker 3: It does seem ludicrous, And this whole case is just
13:28
Speaker 3: so sad. I mean, there's an individual who was pulled
13:31
Speaker 3: out of his car driving with his young son, who
13:34
Speaker 3: has a order from an immigration judge that says he
13:37
Speaker 3: has to be protected and not sent back to El Salvador.
13:41
Speaker 3: So what do the authorities do? They without giving me
13:44
Speaker 3: any kind of du process, without ascertaining or giving him
13:47
Speaker 3: a chance to tell his side of the story. They
13:50
Speaker 3: cut him off to various places in the country and
13:53
Speaker 3: ultimately send him to El Salvador, where there's judicial order
13:57
Speaker 3: saying he can't be sent and when there is a
14:01
Speaker 3: question in court, the attorney doesn't know the answer, and
14:05
Speaker 3: all he can think of is that there was an
14:06
Speaker 3: administrative mistake, and that's what happens when there's no due process.
14:10
Speaker 3: Administrative mistakes can turn out to be in a tragedy.
14:14
Speaker 3: And then the court says, well, bring him back, and
14:17
Speaker 3: the Trump administration says and actually goes to the Supreme
14:23
Speaker 3: Court and says, that's too broad of an order because
14:26
Speaker 3: we don't know whether we can bring him back. And
14:28
Speaker 3: of course I'm empathetic to a certain extent that the
14:33
Speaker 3: administration may not be able to get him back in
14:35
Speaker 3: a day. But given the fact that they have something
14:38
Speaker 3: like a six million dollar contract with El Salvador to
14:41
Speaker 3: house these individuals, one would think that they have with
14:45
Speaker 3: enough kind of financial pressure that can be applied upon
14:50
Speaker 3: El Salvador to release the individual at least within a
14:53
Speaker 3: matter of days. And it's a truly outrageous case. And
14:56
Speaker 3: I have to think that Supreme Court is going to
14:59
Speaker 3: say that maybe the lower court judge needs to narrow
15:03
Speaker 3: the injunction a little bit to use you know, all
15:07
Speaker 3: speed in order to bring him back, or give them
15:10
Speaker 3: a week or something to bring the guy back. But
15:13
Speaker 3: it's just, you know, an administrator's mistake leads to sending
15:16
Speaker 3: somebody away from his family, somebody who's in now being
15:19
Speaker 3: housed with people that he has a protective order against.
15:23
Speaker 3: It's just simply outrageous.
15:26
Speaker 2: Do you think the Trump administration is doing this?
15:28
Speaker 1: Because if they admit this one, if they bring this
15:31
Speaker 1: one back, and it opens the floodgates, because you have
15:34
Speaker 1: all these people, none of them was given a hearing.
15:37
Speaker 3: You know, I think that here. You know, whether or
15:40
Speaker 3: not mister Garcia was a member or is a member
15:44
Speaker 3: of the gang is unclear, but certainly he has an
15:48
Speaker 3: order to prevent him from doing this. And we don't
15:51
Speaker 3: even know about the other individuals. Right, some were probably
15:53
Speaker 3: gang members, but some were mistaken because of their tattoos
15:58
Speaker 3: or their friends, et cetera, et cetera. And this again
16:01
Speaker 3: is just a clear example of what happens when you
16:05
Speaker 3: don't follow process, and the administration doesn't want to follow process,
16:10
Speaker 3: and so mistakes are made, mistakes can be fatal. I'm
16:13
Speaker 3: glad in some ways you're going to Supreme Court because
16:15
Speaker 3: I think on the merits, I think the Supreme Court
16:17
Speaker 3: is going to really administration a loss. Again, I don't
16:21
Speaker 3: know about the scope of the injunction or the speed
16:23
Speaker 3: with which they have to bring him back, but there's
16:26
Speaker 3: no way that the court can justify what happened here
16:30
Speaker 3: because it is a tragedy.
16:31
Speaker 1: Out of seven emergency applications, this seems to be the
16:36
Speaker 1: first one that is really an emergency.
16:38
Speaker 3: Yeah, and again I think that the Court is itself
16:43
Speaker 3: backed into a corner by using its emergency doctrine so frequently.
16:47
Speaker 3: But I agree this one is an emergency. The individual's
16:50
Speaker 3: life is probably in danger and his rights were incredibly violated,
16:56
Speaker 3: and so I hope that the Court does use its
16:59
Speaker 3: emergent and see docket to affirm what the lower court
17:03
Speaker 3: has ordered, because that will ensure that the administration acts
17:09
Speaker 3: with far greater swiftness than otherwise might do. Awesome, incredible
17:13
Speaker 3: after this recent hearing on Friday, is that the Attorney
17:18
Speaker 3: General suspended the government's attorney for being frank before the
17:23
Speaker 3: court and acknowledging that they don't know why this individual
17:27
Speaker 3: was arrested, and they didn't know why that there had
17:30
Speaker 3: been no effort to bring him back once they were
17:32
Speaker 3: alerted of the mistake, and his price for being frank
17:38
Speaker 3: with the court was the fact that the Attorney General
17:41
Speaker 3: suspended him for being insufficiently loyal to the administration. A
17:46
Speaker 3: chilling moment.
17:47
Speaker 1: Well, it looks like the court is acting very quickly
17:51
Speaker 1: in this case, because the Chief Justice has ordered Garcia's
17:56
Speaker 1: lawyers to respond by five pm tomorrow.
17:59
Speaker 2: Thanks so much. How well, that's.
18:00
Speaker 1: Professor Harold Krent of the Chicago Kent College of Law.
18:04
Speaker 1: Turning now to Trump's battles with federal unions. Trump is
18:09
Speaker 1: making a sweeping attack on collective bargaining rights as he
18:13
Speaker 1: aims to lay off government workers. The administration has moved
18:17
Speaker 1: to invalidate contracts between a swathe of US government agencies
18:22
Speaker 1: and the two largest unions representing federal workers, claiming that
18:27
Speaker 1: the collective bargaining agreements are impeding his efforts to reform
18:32
Speaker 1: the government and pose a threat to national security. But
18:35
Speaker 1: the unions are fighting back in court. The American Federation
18:40
Speaker 1: of Government Employees and the National Treasury employees. Union have
18:44
Speaker 1: sued the Trump administration in separate lawsuits, saying it's violated
18:48
Speaker 1: the Constitution with its anti union directive, including violating its
18:53
Speaker 1: free speech and due process rights. My guest is labor
18:57
Speaker 1: law expert and Lafasso a perfer asked with the University
19:01
Speaker 1: of Cincinnati.
19:01
Speaker 2: College of Law.
19:03
Speaker 1: So this started with the Trump executive order instructing agencies
19:08
Speaker 1: to stop collective bargaining with federal unions because of national
19:13
Speaker 1: security concerns. Tell us about the order and the law
19:16
Speaker 1: he's using.
19:18
Speaker 4: He is issued in executive order based on five USC.
19:23
Speaker 4: Seventy one oh three, and it's really piggybacking on an
19:28
Speaker 4: old executive order that Jimmy Carter issued. And Jimmy Carter
19:33
Speaker 4: issued that executive order shortly after the Act that created
19:39
Speaker 4: the Fair Labor Relations Authority, which is the authority that
19:45
Speaker 4: deals with federal employees. It's the act that gave federal
19:49
Speaker 4: employees the rights to unite. And that act says that one,
19:56
Speaker 4: it gives them the right to organize, but certain employees
19:59
Speaker 4: don't have the right to organize because of national security,
20:03
Speaker 4: and then it kind of lists a few of those,
20:05
Speaker 4: but then it gives the president power to issue an
20:10
Speaker 4: order excluding any agency or subdivision thereof from coverage under
20:15
Speaker 4: this Chapter if the President determines that the agency or
20:19
Speaker 4: subdivision has as a primary function intelligence, counter intelligence, investigative,
20:25
Speaker 4: or national security work, and the provisions of this Chapter
20:29
Speaker 4: cannot be applied to that agency or subdivision in a
20:32
Speaker 4: manner consistent with national security requirements and considerations. So even
20:38
Speaker 4: though all of these employees have somehow been unionized and
20:43
Speaker 4: it's been consistent with national security, he is stated in
20:47
Speaker 4: his executive order that he has to do this because
20:52
Speaker 4: of national security reasons and considerations, and that's the important word, considerations,
20:59
Speaker 4: because a lot, it is a lot. This is disenfranchising many, many,
21:05
Speaker 4: many employees. So in his view, the fact that they're
21:09
Speaker 4: in a union and their collective bargaining agreement has made
21:13
Speaker 4: it difficult for him to implement his national security policy.
21:20
Speaker 4: That's in and of itself a really broadsweeping order that
21:25
Speaker 4: no president has ever done. Not even after nine to
21:28
Speaker 4: eleven did we have anything like this. We did have
21:32
Speaker 4: some issues back in nine to eleven, and but much
21:35
Speaker 4: more narrow and national security was much heightened back then
21:38
Speaker 4: when we actually had a threat on the ground.
21:41
Speaker 1: So after issuing the executive order, the Trump administration doesn't
21:46
Speaker 1: wait to be sued. Instead, it sues in federal court
21:50
Speaker 1: in Texas.
21:51
Speaker 4: He wants to get around the idea of waiting for
21:54
Speaker 4: all this to happen. So what he did was he
21:57
Speaker 4: filed a complaint in the West Eastern District of Texas,
22:02
Speaker 4: which is a very favorable district to the president's agenda,
22:09
Speaker 4: and he filed this in the Western District of Texas,
22:12
Speaker 4: asking for a declaratory judgment. Now, a declaratory judgment is
22:17
Speaker 4: under the Declaratory Judgment Act, the Declaratory Judgment Act. It's
22:22
Speaker 4: an old statute, but it is used, and it was
22:25
Speaker 4: a way to distinguish between something called advisory opinions and
22:31
Speaker 4: declaratory judgments. Advisory opinions are not allowed, and declaratory judgments are.
22:37
Speaker 4: An advisory opinion is when the president asked the Supreme
22:42
Speaker 4: Court for its opinion on whether something's constitutional. So Jefferson
22:46
Speaker 4: did that way back when in the early eighteen hundreds,
22:50
Speaker 4: and the Supreme Court said, justin Marshall said no, no, no,
22:54
Speaker 4: we can't answer that question. That's an advisory opinion, and
22:58
Speaker 4: that's up to you to decide, and you do it
23:01
Speaker 4: and then if you get sued, we will decide that.
23:03
Speaker 4: And in fact, that's how the Office of Legal Counsel
23:06
Speaker 4: eventually got made because in the Office of Legal Council
23:08
Speaker 4: is an executive branch agency that counsels the president on
23:12
Speaker 4: the constitutionality of his her their acts. So the first
23:16
Speaker 4: question here is is this really declaratory judgment? And as
23:21
Speaker 4: he able to do this, so put aside whether this
23:24
Speaker 4: actually fits into the category of declaratory judgment and whether
23:29
Speaker 4: it fits into the category of advisory opinions. What he's
23:32
Speaker 4: doing is he is intentionally and I don't blame him
23:37
Speaker 4: for this in terms of the mindset going to a
23:40
Speaker 4: favorable court what's called forum shopping. There's little doubt in
23:43
Speaker 4: my mind that this judge will find in favor of Trump,
23:47
Speaker 4: and we'll go to the Fifth Circuit and the Fifth
23:48
Speaker 4: Circuit will find in favor of Trump. And where does
23:50
Speaker 4: that leave you the Supreme Court if it decides to
23:53
Speaker 4: take the case.
23:54
Speaker 1: Coming up next on the Bloomberg Law Show, the Union
23:57
Speaker 1: Sue one in California and one in DC. I'm June
24:02
Speaker 1: Grosso and you're listening to Bloomberg. The Trump administration is
24:06
Speaker 1: moving to invalidate contracts between a swamp of US government
24:11
Speaker 1: agencies and the two largest unions representing federal workers, claiming
24:16
Speaker 1: that the collective bargaining agreements are impeding efforts to reform
24:20
Speaker 1: the government and pose a threat to national security. The
24:25
Speaker 1: unions are fighting back in court, suing the Trump administration
24:29
Speaker 1: saying it violated the Constitution with its anti union directive,
24:34
Speaker 1: including violating its free speech and due process rights. I've
24:38
Speaker 1: been talking to Professor Ann Lafasso of the University of
24:41
Speaker 1: Cincinnati College of Law and tell us about some of
24:44
Speaker 1: the legal questions that come up because of these Trump
24:48
Speaker 1: administration moves.
24:51
Speaker 4: So this really raises a lot of questions. It raises
24:54
Speaker 4: libor law questions and constitutional law questions. So FIRSUS canny
24:58
Speaker 4: do it, Well, that's what the litigation is going to decide.
25:02
Speaker 4: So he's going to say that he can do it
25:04
Speaker 4: because of national security, and on the face of the
25:07
Speaker 4: statute that is true. He can do things in national security,
25:12
Speaker 4: but you can't just declare national security. They are certainly
25:16
Speaker 4: taking a broad reading of this statute in a way
25:21
Speaker 4: that the courts don't want broad readings of statutes right now.
25:25
Speaker 4: They don't want that kind of delegation of authority. They've
25:28
Speaker 4: been very very quick to say, uh uh uh, this
25:33
Speaker 4: is too much. Congress didn't delegate this type of authority
25:37
Speaker 4: to anyone, and that's not what the president can do. Okay,
25:41
Speaker 4: that's possible. That's one thing. Another thing would be, well,
25:45
Speaker 4: it has me consistent with national security. Well, he's arguing
25:48
Speaker 4: that it's the collective bargaining agreement. We turn to work
25:51
Speaker 4: policies that are problematic, and he says.
25:54
Speaker 3: Some of them.
25:55
Speaker 4: So wouldn't the solution be if that's true, the dispute
25:59
Speaker 4: is really about the collective bargaining agreements and you avoid
26:02
Speaker 4: them because of national security is concerned, And wouldn't that
26:05
Speaker 4: just go to the FLRA as an administrative proceedings.
26:08
Speaker 1: The FLRA being the Federal Labor Relations Authority. We'll talk
26:12
Speaker 1: about that in a moment. Let's turn to the two
26:15
Speaker 1: lawsuits by the unions. What are their chief contentions?
26:20
Speaker 4: The unions are steering and they have three main arguments. First,
26:24
Speaker 4: they're claiming that Trump violated their First Amendment rights by
26:29
Speaker 4: retaliating against them because they spoke in a way that
26:34
Speaker 4: he deems to be anti Trump. Second, they say that
26:39
Speaker 4: Trump's order violates the Fifth Amendments Due Process Clause. The
26:43
Speaker 4: Fifth Amendments Due Process Clause is like the Fourteenth Amendment,
26:46
Speaker 4: but it applies to the federal government about the state governments.
26:49
Speaker 4: And they say that the violates due process because they
26:52
Speaker 4: literally stripped these employees of their contractual rights without any
26:58
Speaker 4: due process, which they are titles to under the Fifth Amendment.
27:01
Speaker 4: And three, they say that the executive order violates the
27:07
Speaker 4: separation of powers. From this argument means that Congress made
27:11
Speaker 4: a statute about fifty years ago. That statue get broadly
27:16
Speaker 4: granted union rights to federal employees with few exceptions. And
27:21
Speaker 4: then presidents have under that act narrow authority to designate
27:28
Speaker 4: certain executive agencies or subdivisions that they deem should not
27:34
Speaker 4: be organized at the moment because of national security reasons.
27:38
Speaker 4: And presidents starting with Jimmy Carter have used that clause,
27:43
Speaker 4: but only to designate very small parts of the of
27:47
Speaker 4: the federal agencies. This case actually does a sweeping broad
27:54
Speaker 4: declaration of unionizing or evoking the recognition of the union
28:00
Speaker 4: rights of many they're claiming most federal employees. So the
28:05
Speaker 4: AFL and the unions are claiming, which is if you
28:08
Speaker 4: look at the list it is expansive, it's tweeping, it's
28:13
Speaker 4: very broad, it is shocking. Actually, So those are the
28:16
Speaker 4: three things that they are arguing.
28:18
Speaker 1: Does this all have to do with his attempt to
28:21
Speaker 1: fire federal workers? So he's trying to eliminate the union connection,
28:26
Speaker 1: so he.
28:27
Speaker 4: Can do this okay, meaning he has authority to do this.
28:30
Speaker 4: Whether he has authority to do with this broadly is
28:33
Speaker 4: very different. So this is clearly part of his agenda
28:38
Speaker 4: to fire the employees because they won't have the collective
28:43
Speaker 4: bargaining rights. They'll still have certain statutory rights, but they
28:46
Speaker 4: won't have their collective bargaining rights, and this way they
28:48
Speaker 4: can fire them more easily, possibly because they're still statutory rights.
28:52
Speaker 4: I mean, if you have a contract rather than being
28:55
Speaker 4: at well, you have a lot more rights. Everyone would
28:57
Speaker 4: prefer a contract to being at well.
29:00
Speaker 2: Have these union workers been fired already? Do we know?
29:03
Speaker 4: I mean, there's so many that I do not know
29:06
Speaker 4: whether any of these have been fired. My guess is
29:09
Speaker 4: that possibly some of them have been fired, but not
29:11
Speaker 4: every single one. But it's so expansive it can't be
29:15
Speaker 4: that I would be surprised if all of these were fired,
29:18
Speaker 4: because it would be the government, right, But you know,
29:22
Speaker 4: you have to ask yourself, really administrative assistants have a
29:25
Speaker 4: national security role. I mean some might. You know, he
29:28
Speaker 4: has the entire Department of the Treasury except the Bureau
29:30
Speaker 4: of Engraving and Printing, the entire Department of Veterans Affairs,
29:35
Speaker 4: the entire Department of Justice, the entire Department of State,
29:38
Speaker 4: the entire Department of Defense except for any subdivisions excluded previously,
29:42
Speaker 4: so that means they're already in there. The Department of
29:46
Speaker 4: Health and Human Services specifically, and it lists seven agencies,
29:51
Speaker 4: and then Homeland Security it's lists twelve subagencies. I mean,
29:56
Speaker 4: this is expansive, This is really real a lot of employees,
30:02
Speaker 4: and that is what the shocking part of this is.
30:05
Speaker 4: Now again, like after nine to eleven, you think something
30:09
Speaker 4: Bush might have done something like this, but he didn't
30:12
Speaker 4: do this broad sea recognition of union workers, and that
30:16
Speaker 4: must have been a time that was much more problematic
30:20
Speaker 4: in terms of national security. And the complaint that he
30:25
Speaker 4: files in the Western District of Texas specifically focuses on
30:28
Speaker 4: the word considerations, so national security considerations, which is a
30:33
Speaker 4: fuzzy word, so he's not claiming that there's actual national
30:38
Speaker 4: security urgency here, And one thing is important for people
30:42
Speaker 4: to understand is that national security is like to get
30:45
Speaker 4: out jail free cards for the government. When they say
30:48
Speaker 4: national security, that means the courts look at that very
30:53
Speaker 4: seriously because they like to defer to the president of
30:57
Speaker 4: national security. But imagine if the president just has to
31:01
Speaker 4: use the magic words, wave his hand, and then anything
31:04
Speaker 4: he does is then a matter of national security, that
31:09
Speaker 4: he could do whatever you want.
31:10
Speaker 3: So this is such a broad.
31:12
Speaker 4: Sweeping interpretation that further consolidates power in the hands of
31:18
Speaker 4: the president and the executive agencies. Now he's actually delegating
31:22
Speaker 4: that authority the agencies themselves, so he's actually telling them
31:26
Speaker 4: that they have to do this. So that's another end
31:28
Speaker 4: run around this to some extent, is that the president
31:32
Speaker 4: is not suing. The agencies are suing, but it's the
31:35
Speaker 4: president who acted, and then they acted under the president's authority.
31:39
Speaker 4: So that's an interesting twist. This is raising all kinds
31:42
Speaker 4: of issues that are new, that are stretching the law
31:48
Speaker 4: in a way that I have never personally have not seen.
31:52
Speaker 1: Is the Trump administration also sort of trying to paralyze
31:55
Speaker 1: the FLRA by firing the board chair.
32:00
Speaker 4: Yes, And he also fired the entire impasses panel last week.
32:04
Speaker 4: So the impasses panel is what decides disputes. When the
32:09
Speaker 4: parties are at impass over something, then it goes to
32:14
Speaker 4: the impassive panel. So if they're bargaining over a contract
32:18
Speaker 4: right now, there's no impasses panel. Every single one of
32:20
Speaker 4: them was fired last week. I mean that's I guess, right,
32:25
Speaker 4: So that's the board. Those are the big guys. Those
32:27
Speaker 4: are the big shots, right, and now they're special government employees.
32:32
Speaker 4: They're paid minimally, they're paid by the hour. They're not
32:35
Speaker 4: full employees. It's a part time job. So the personal
32:39
Speaker 4: effects on them is much much weaker than what's happening
32:42
Speaker 4: to these actual employees. But it has the same effect
32:47
Speaker 4: on the government, which is to make it dysfunctional. So
32:52
Speaker 4: what he's done is is use this authority in the
32:56
Speaker 4: name of national security to fire most the unionized workforce
33:02
Speaker 4: in the federal government under the guise of national security.
33:06
Speaker 4: And at the same time he's gotten rid of the
33:10
Speaker 4: agencies but could actually resolve these seats like the FLRI.
33:15
Speaker 1: What will happen if you end up with conflicting orders
33:18
Speaker 1: from Texas and let's say California, which seems likely.
33:22
Speaker 4: Well, this is interesting because Texas they're asking for a
33:26
Speaker 4: nationwide declaratory judgment. I would say, there's likely to be
33:29
Speaker 4: some conflict, and there's so many issues here because one
33:33
Speaker 4: issue is can there be parallel seats. So the Trump administration,
33:38
Speaker 4: I certain will argue that there can't be parallel seats
33:41
Speaker 4: in the one in the Western District of Texas is
33:43
Speaker 4: the correct one. And the unions are going to argue
33:46
Speaker 4: that whether or not there can be parallel seats, his
33:49
Speaker 4: suits cannot be sustained because there's no declaratory judgment that
33:54
Speaker 4: is permitted, that his case doesn't fit under the Declaratory
33:58
Speaker 4: Judgment Act. So that's what they're so Again, the presidents
34:02
Speaker 4: have used this authority, but never in this broad sweeping way,
34:07
Speaker 4: and it reads very much like an m run around
34:12
Speaker 4: the unions in terms of the rights of the employees,
34:16
Speaker 4: their due process rights, their rights under their contracts, or
34:19
Speaker 4: their contractual rights, all in the name of this so
34:23
Speaker 4: called national security consideration that is undefined.
34:27
Speaker 1: We'll see how it all plays out in three different courts.
34:30
Speaker 2: Thanks so much.
34:31
Speaker 1: And that's Professor An Lafasso of the University of Cincinnati
34:36
Speaker 1: College of law. And that's it for this edition of
34:38
Speaker 1: The Bloomberg Law Show. Remember you can always get the
34:41
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34:44
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Speaker 1: pm Wall Street Time. I'm June Grosso and you're listening
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