Separation of Powers by Contract: The Role of Unions in Constraining the Twenty-First Century President

The federal civil service—the approximately 2 million federal government employees who are protected by merit systems— has been in the news more than usual recently. Perhaps at no time since the New Deal has there been such a powerful political movement to strip government workers of their job protections and subject them to political control. Former President Trump has vowed, if re-elected in 2024, to purge thousands of federal civil servants and replace them with political loyalists, claiming to have a list of 50,000 civil servants to terminate. Before dropping out of the Republican presidential primary, both Ron DeSantis and Vivek Ramaswamy similarly vowed to assert greater presidential control over career officials. The Heritage Foundation recently released Project 2025, a 900-page blueprint for expanding presidential control over every part of the executive branch, including civil servants throughout the government’s most important agencies.

These efforts follow on the heels of over a decade of cases before the Supreme Court and the circuit courts of appeal expanding the president’s power to remove political appointees without good cause, and to more closely control the work of administrative law judges.

Such threats to politicize key executive branch agencies have in turn provoked a new round of thinking about how to protect the civil service. Typically, when we think of tools for preserving civil service independence, we think of the merit system—a complex set of statutory rules governing the hiring, firing and discipline that date back to the Pendleton Act of 1883.

But there is another set of tools available. Under the 1978 Civil Service Reform Act (CSRA), civil servants have the right to form labor unions and bargain collectively over the “conditions of their employment,” and to enforce their rights in proceedings before the Federal Labor Relations Authority (FLRA). While labor rights do not figure as prominently in our thinking on presidential power as civil service laws or constitutional concepts like the separation of powers, labor unions have played an increasingly important role in battles for control of the administrative state. Labor rights govern many important areas of federal work that are not covered by civil service regulations, which focus primarily on major employment actions like hiring, firing, and suspending employees. Many of the these working conditions can be important in determining how much practical power the president wields over the civil service.

In an article recently published in the New York University Law Review, I examine the role federal sector unions play in constraining presidential power. These unions can reshape presidential power in two important ways. One is through a collective bargaining agreement (CBA), which can impose enforceable contractual limits on the president’s tools for managing the civil service. The CSRA allows civil servants to bargain over many aspects of their employment, so long as CBAs do not infringe on certain protected “management rights,” including an agency head’s right to “determine the mission, budget, organization, number of employees, and internal security practices of the agency.” 5 U.S.C. § 7106(a).

Contractual provisions can impose a number of important restraints on presidential administration. For instance, CBAs can limit the president’s ability to engage in structural deregulation, a favored tactic of President Trump. When a president wants to prevent an agency—say, the Occupational Safety and Health Administration or the Environmental Protection Agency (EPA)—from carrying out its mission effectively, they might sabotage it by starving it of critical resources or imposing wasteful, abusive, or tedious working requirements on its personnel. This strategy weaponizes quotidian management tools like remote work, office assignments, and shift assignments to demoralize civil servants in disfavored agencies, slowing down their work or forcing them out of government altogether. Collective bargaining is often a workforce’s last and most effective line of defense against structural deregulation. Bargaining has been used to challenge policies like the assignment of untrained guards to dangerous prison details or the reduction in resources available to key departments within the Internal Revenue Service.

Collective bargaining can also reshape important incentive structures and management techniques. For example, performance evaluations impact civil servants’ pay and promotion prospects, and workers are highly sensitive to the incentives these evaluations create. Agency heads can leverage performance reviews to influence how civil servants implement federal policy, rewarding certain types of decisions with favorable evaluations and discouraging other decisions with unfavorable ones. Similarly, productivity quotas can influence enforcement by making certain types of decisions more burdensome than others. An administrative law judge with the Social Security Administration, for instance, might have to build an extensive record to deny a benefits application and ensure that the denial would survive a subsequent appeal. But they might need much less record support to grant an application, since there would likely be no challenge to that decision. Imposing demanding productivity quotas requiring administrative law judges to decide more cases per month would thus likely increase grant rates, because few administrative law judges would have time to build the records necessary to defend denials. Managers can thus increase grant rates, effectively tweaking an area of federal benefits policy, through management techniques rather than guidance or other forms of administrative lawmaking. Unions can and do bargain over these and other management tools, limiting the ways in which agencies can guide civil servants’ decision-making.

In addition to bargaining, unions can also wield significant political and financial power. Unions allow civil servants to pool resources and cultivate a sophisticated plaintiffs’ bar to litigate labor complaints, whistleblower complaints, discrimination claims, and disputes under civil service regulations. Unions also participate heavily in the political process. They lobby Congress to address policies, funding shortfalls, and management practices that impede civil servants’ work. They communicate with the public through organized media campaigns. And they can work with the president and agency heads to reshape agencies’ mission performance in significant ways. During the Clinton Administration, for instance, unions worked closely with agency leadership through labor-management councils to implement broad changes at agencies like the Internal Revenue Service. These tools allow labor to act as a sophisticated and coordinated constituency inside the executive branch that—to some degree at least—can counterbalance the bully pulpit of the president and influence public perception on key policy issues.

Taken together, labor rights can meaningfully impact the implementation of federal policy in key areas. Take immigration as an example. Immigration is an area where presidential power to make policy has expanded dramatically in recent decades.

But enforcement of a presidential agenda requires the cooperation of hundreds of thousands of federal employees across a wide variety of fields, including border policing by Customs and Border Patrol (CBP), policing immigration within the national interior by Immigration and Customs Enforcement (ICE), processing of asylum applications by United States Customs and Immigration Services (USCIS), and adjudication of removal proceedings by Immigration Judges inside the Executive Office for Immigration Review. Typically, the story goes that the president imposes policies with profound implications for the immigration system, such as prioritizing the arrest and deportation of certain populations over others, or setting targets to grant or deny certain numbers of asylum applications or removal challenges.

But through collective bargaining, civil servants can reshape presidential policy initiatives. ICE agents have challenged and defeated policies requiring them to deprioritize the arrest of certain populations (e.g., minors and those without criminal records) and to provide legal information to detained immigrants, on the grounds that those policies improperly alter agents’ conditions of employment. CBP guards have similarly defeated policies altering what types of searches they may conduct at the border, what types of weapons they may carry, or what disciplinary processes they are subject to for misconduct. Immigration Judges can defeat productivity quotas or performance evaluation standards that are designed to force them to move through cases more quickly—measures well known to produce lower win rates for immigrants challenging removals. And USCIS employees may challenge directives pushing them to grant fewer asylum applications.

Federal sector labor unions are likely to grow in political importance in the coming years. Many have vowed to leverage their labor rights to increase their autonomy and to pursue both the economic interests and policy preferences of their members. The union representing many EPA employees, for instance, has sought to negotiate a new CBA enshrining protections for diversity and scientific integrity, and strengthening protections against managerial abuse—measures it says are necessary to prevent a return of Trump-era abuses. Other unions, including those representing CBP and ICE agents, have aligned themselves explicitly with conservative lawmakers, and have vowed to use their political and bargaining clout to advance restrictive immigration enforcement policies.

Presidents have also taken sides in federal sector labor battles, signaling dramatically different approaches to civil service autonomy. While in office, President Trump adopted a particularly hostile approach toward unions, part of his broader attack on the so-called “deep state.” In a trio of executive orders, he severely curtailed unions’ ability to engage in organizing and sought to prevent agency heads from bargaining over any topics not mandated by federal law. His appointees to the FLRA issued unusually anti-labor opinions, in some cases upending decades of settled labor precedent. And he directed particular ire at unions operating in high-salience political areas, unilaterally imposing harsh contractual terms on the union representing Department of Education workers (a move later voided on appeal) and seeking to abolish the union representing Immigration Judges altogether. The Heritage Foundation, in its Project 2025 outline, has encouraged future Republican presidents to continue and expand on these anti-labor measures. President Biden, for his part, reversed many of President Trump’s labor policies and has repeatedly touted his support for federal sector unions, looking to negotiate more labor-friendly contracts and installing more pro-labor appointees at the FLRA.

The upshot of all this is that, like disputes over civil service regulations or the president’s Article II power to remove political appointees, battles over labor are likely to become more intense and higher stakes as broader disputes over the president’s power to control the executive branch play out. Understanding the architecture of federal sector labor law, and how the sometimes obscure rules governing union certification, collective bargaining, and contract enforcement intersect with larger battles over policy and presidential power, will be essential in this new landscape.