Another judge has dismissed the Trump administration’s effort to pre-clear anti-union EO

This story has been updated at 2:45 p.m. ET.

A federal judge in Texas on Wednesday denied the Trump administration’s effort to attain the judicial greenlight to enforce a March executive order stripping two-thirds of the federal workforce of its collective bargaining rights.

The edict invoked a rarely used provision of the 1978 Civil Service Reform Act to strip most federal employees of their collective bargaining rights under the auspices of national security. But before the order was published and announced, the Trump administration sued both the American Federation of Government Employees and National Treasury Employees Union in seemingly GOP-friendly federal district court jurisdictions seeking preemptive declarations that the order is lawful.

In May, a federal judge in Kentucky dismissed the case against NTEU, finding that the administration lacked standing, as federal case law has long barred jurists from issuing so-called “advisory opinions” about the legality of a law without an underlying injury. In a 27-page opinion, U.S. District Judge Alan D. Albright, a Trump appointee in Texas’ Western District, followed suit in the case against AFGE.

“Plaintiffs ask this court to do something it should not and cannot do: issue a declaratory judgment pre-approving the acts of executive agencies absent a legally cognizable injury-in-fact,” Albright wrote. “This court is unable to identify a single instance in which a federal court has exercised jurisdiction over agencies seeking a pre-enforcement declaratory judgment approving their desired future course of conduct. Plaintiffs’ suit, however well-intentioned, is an unprecedented invitation for an advisory opinion—one that could open a Pandora’s Box of encouraging the executive branch to seek the judiciary’s blessing for every executive order prior to implementation.”

Though both cases were predicated on federal agencies waiting to formally implement the executive order vis-à-vis the cancellation of union contracts, federal agencies have effectively ended unions’ presence at impacted agencies and agency subcomponents since March. Agencies by their own admission have already ceased participating in collective bargaining negotiations as well as grievance and arbitration proceedings, and federal payroll processors surreptitiously halted the automatic collection of dues from federal employees’ biweekly paychecks in April.

At the heart of Albright’s decision, however, is the fact that the Trump administration filed its lawsuit against AFGE prior to the union’s knowledge of the underlying policy, making it impossible for there to have been a controversy between the parties on this issue. That federal employee unions ultimately filed their own lawsuits to block the order is irrelevant.

“Was there a possibility that a lawsuit seeking to enjoin the executive order would be filed, given the numerous challenges brought against other executive orders? Yes,” Albright wrote. “But Article III standing is not satisfied by mere possibilities or anticipated legal challenges. Here, the parties did not have an ongoing dispute over the executive order when this lawsuit was filed. In hindsight, we know that defendants oppose the executive order and seek a judgment that it is unconstitutional. But plaintiffs have not plausibly shown such a dispute existed when they filed this lawsuit.”

In their own lawsuits, NTEU, AFGE and other unions secured two preliminary injunctions blocking the order’s implementation, though both decisions have been stayed by appellate courts pending further review.

AFGE National President Everett Kelley said his union will continue to fight the initiative, which he and other union leaders have argued is a violation of federal workers’ First Amendment rights.

“We are very pleased that the courts have once again ultimately sided with public servants and AFGE and stopped another attack by this administration on the patriotic, dedicated Americans who serve their country in the federal government,” he said. “AFGE will never stop fighting to uphold our rights, our contracts, the rule of law, and the integrity of the people’s government.”