US court seem poised to lift block on Trump curbing union bargaining for federal workers

Judges on a U.S. appeals court on Thursday said they likely lacked the power to second-guess President Donald Trump's decision to strip hundreds of thousands of federal employees of the ability to unionize and collectively bargain.

A three-judge 9th U.S. Circuit Court of Appeals panel in San Francisco heard arguments on whether to pause pending an appeal of a judge's ruling that temporarily blocked 21 agencies from implementing an executive order that said many union contracts could interfere with national security.

The panel last week granted a brief administrative stay of the ruling by U.S. District Judge James Donato pending its decision.

Trump's executive order exempted agencies that he said primarily have "intelligence, counterintelligence, investigative, or national security" functions from collective bargaining obligations, including the entire U.S. Department of Justice, Treasury Department and Department of Veterans Affairs and many offices within the Department of Health and Human Services, the Interior Department and the Energy Department.

The order significantly expanded an existing exception for workers with duties implicating national security, such as certain employees of the CIA and FBI.

Circuit Judges Bridget Bade and Daniel Bress, who are Trump appointees, both said that federal law appeared to give the president essentially unreviewable power to bar union bargaining in the name of national security.

And the judges were skeptical of claims by Ramya Ravindran, who represents unions that sued to challenge the order, that it was invalid because it was a targeted act of retaliation against federal worker unions for challenging other Trump administration policies.

“That just seems to me to be naked, unvarnished, straightforward reweighing the president’s national security determination,” Bade said to Ravindran. “I don’t know how we view it as anything else.”

Bress seemed leery of claims that statements by the administration, such as a reference to "hostile federal unions" engaging in "mass obstruction," amounted to strong evidence of retaliation.

“Why wouldn’t we read those statements just as part and parcel of the national security rationale?” the judge said.

Ravindran pushed back, telling Bress that would mean defining national security to mean political allegiance to the president.

“Filing lawsuits, making public statements - legal, constitutionally protected avenues to engage in speech cannot be seen as a threat to national security,” she said. “That runs right into the First Amendment.”

The panel includes Circuit Judge John Owens, an appointee of Democratic President Barack Obama, who said little during Thursday's arguments.

Eliminating collective bargaining would allow agencies to alter working conditions and fire or discipline workers more easily, and it could prevent unions from challenging Trump administration initiatives in court.

Donato, an Obama appointee, said in his ruling the unions had established they were likely to prove Trump's executive order had a chilling effect on their right to free speech under the U.S. Constitution.

His ruling followed a decision by a different judge in Washington, D.C., in April that blocked Trump's order from being implemented at seven agencies including the departments of Justice, Treasury, and Health and Human Services.

The D.C. Circuit in May paused that ruling while it considers the Trump administration's appeal.

In separate litigation, the Trump administration filed a pair of lawsuits against unions seeking to invalidate existing bargaining agreements in light of Trump's order shortly after he issued it.

A judge in Kentucky in May said the Treasury Department lacked standing to sue over a union contract covering thousands of Internal Revenue Service employees and dismissed the agency's lawsuit. A separate case that eight agencies filed against AFGE is pending in Texas federal court.

While Bade on Thursday seemed to be leaning toward pausing Donato's ruling, she also questioned U.S. Department of Justice lawyer Tyler Becker about the scope of Trump's powers.

"Could the president theoretically exclude the entire federal workforce?” Bade asked.

“That’s not really at all what has happened here," Becker replied.

“I understand that the president did not do that here, but what I’m getting at is, are there any limits? Does the government concede that there could be limits?” Bade said.

Becker said the limit is that the president is required to make a determination that agencies are primarily engaged in national security work.

"If the president makes those determinations, we think they are unreviewable beyond that," he said.

The case is American Federation of Government Employees v. Trump, 9th U.S. Circuit Court of Appeals, No. 25-4014.

For the plaintiffs: Ramya Ravindran of Bredhoff & Kaiser

For the government: Tyler Becker of the U.S. Department of Justice

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