A second appeals court has allowed Trump’s anti-union EO to go into effect

A federal appellate court last week issued a formal stay allowing President Trump’s executive order banning unions for two-thirds of the federal workforce to go into effect, effectively extending the short-term hold it placed on a lower court ruling against the edict.

In June, U.S. District Judge James Donato, found that Trump’s invocation of national security to bar collective bargaining at most federal agencies amounted to an illegal pretext to retaliate against the American Federation of Government Employees and other unions that have challenged the president’s policies in court.

But 15-page decision from a unanimous three-judge panel on the U.S. Court of Appeals for the Ninth Circuit rejected that analysis, saying that while the controversial fact sheet may have included “evidence of retaliatory animus” toward unions, it also cited national security. And like a three-judge panel on the D.C. Circuit ruled in May, U.S. Circuit Judges Bridget Bade and Daniel Bress, both Trump appointees, and Judge John Owens, an Obama appointee, found that the president is owed deference from courts on that topic.

“[The fact sheet] states that the [federal labor management statute] allows unions to ‘obstruct agency management,’ including by impeding the removal of employees for ‘poor performance or misconduct,’ which is contrary to the need for a ‘responsive and accountable civil service to protect our national security.’ The fact sheet thus conveys that [the executive order] advances national security by curtailing union activity and undermines the agile functioning of government offices with national security missions.”

The judges sidestepped unions’ claims that the exclusion of federal law enforcement functions—and inclusion of the AFGE-represented U.S. Bureau of Prisons—as well as reported selective enforcement of the executive order within covered agencies, is evidence of the White House's retaliatory intent, finding that the edict likely did not infringe on unions’ First Amendment rights because the president would have issued it even if they hadn’t challenged other workplace policies in court.

“Plaintiffs also rely on the order’s broad scope and allegedly ‘jagged line drawing’ to demonstrate animus,” the panel wrote. “We question whether we can take up such arguments, which invite us to assess whether the president’s stated reasons for exercising national security authority—clearly conferred to him by statute—were pretextual. But even if we assume that the order’s line drawing could constitute some evidence of targeting on the balance of the record before us, the order reflects that the president would have taken the same action even in the absence of the protected conduct.”

Though appeals courts in both AFGE and the National Treasury Employees Union’s lawsuits challenging the order have allowed the measure to be implemented pending further arguments, the International Federation of Professional and Technical Engineers filed its own legal challenge last week, particularly challenging how Defense Secretary Pete Hegseth elected to exempt particular unions from the order’s provisions.