As unions fight reform, Trump should assert executive power

OPINION:

Americans are right to be concerned about abuses of executive power.

After all, the Biden administration tried to use executive power to do things the Constitution allows only Congress (if anyone) to do, such as forgive student loan debt, impose vaccine and mask mandates, force environmental, social and governance policies on businesses, and ban liquefied natural gas exports.

President Trump is so far using executive power mostly in the right way: not to do an end run around Congress but to bring his branch of government under control.

There is one way he should use his authority especially vigorously: to rein in and ultimately eliminate the power of public-sector unions.

Fortunately, he can do that right now as the unions fight his orders to downsize bureaucracy and eliminate freeloading employees.

On the day he took office, Mr. Trump issued an executive order directing federal agency heads to recategorize certain “career” employees — people who wouldn’t normally lose their jobs when a new president takes office — so they can be terminated more easily.

Then he directed the heads of all federal departments and agencies to order employees working remotely to return to work in person or, it’s implied, face termination.

Then, the administration offered career federal employees a “buyout” that would let them resign immediately while keeping their pay and benefits through September, avoiding the possibility of being laid off later without the generous severance package.

Unions have already brought lawsuits to block the recategorization and buyouts. They’ve also argued that making employees work in person conflicts with collective bargaining agreements that allow for remote work, which no doubt will lead to litigation as well when the administration terminates employees who fail to return to the office.

The Trump administration can and will argue why federal statutes allow the president to take these actions.

However, there’s a bigger, more important reason why Mr. Trump should be able to take these steps or fire virtually any executive-branch employee besides the Vice President.

Article II of the Constitution says, “The executive Power shall be invested in a President of the United States of America.” That’s it. Nobody else in the federal government gets executive power. The president has all of it.

This idea has been called the “unitary executive theory,” and there’s appropriate debate over how far it goes, especially when a president’s actions raise questions about the boundaries among the different branches of authority over matters such as national security.

However, when it comes to hiring, firing and management of executive-branch employees, there should be no question because these matters are essential to the president’s control over his own branch of government.

Unfortunately, for decades, unions and their collective bargaining agreements have hamstrung presidents and the people they’ve chosen to run federal departments and agencies in all the wrong ways. Under a bill President Carter signed in 1978, the president cannot simply reject a proposed union agreement but must go before the Federal Service Impasses Panel, or arbitrator that can make him accept terms he doesn’t want.

Also, union agreements prevent incompetent or unethical employees protected by a union from being fired or even having negative notes placed in their files without notice and an opportunity to bring grievance proceedings, where unions will back even the least deserving member to the hilt.

Unions’ agreements even give them a say over basic management decisions. As Philip K. Howard reports in his book on public-sector unions, “NOT Accountable,” the National Treasury Employees Union agreement requires bargaining over the use of any new technology, even software upgrades.

These unions, which exist to serve their leaders and members at everyone else’s expense, are totally incompatible with the “government efficiency” Mr. Trump is working to achieve and our constitutional structure of government. The president should seize this moment to push them back, ideally all the way. When the right union lawsuit gets to the Supreme Court, he should ask the justices to recognize that the Constitution gives him all executive power and unions no power.

• Jacob Huebert is president of the Liberty Justice Center and represented plaintiff Mark Janus in Janus v. AFSCME, in which the Supreme Court ended mandatory public-sector union fees.