BANNING UNIONS: CRITICIZING THE PRESIDENT IS NOT A NATIONAL SECURITY THREAT

News Item: Trump bans federal unions on ”National Security” grounds. The rational for the National Security designation is that the unions oppose his radical changes to the government.  Just like the democratic party and every Federal Employee.   

If men were Angels, no government would be necessary. If Angels were to govern men, no internal or external controls would be necessary.  James Madison, Federalist Paper No. 51.  

In totalitarian/Fascist regimes, such as Russia under Putin or Italy under Mussolini, or Germany under Hitler — the Leader is the State; he alone represents the Nation and the people. He is the sovereign—I AM THE STATE”  is “Der Fuhrer’s [Leader] motto. Under such regimes there is no division between the Leader and the Nation-any criticism of the leader is criticism of the Mation, and, by definition, treasonous.

For the past 250 years America, at least until January 20^th, was a Constitutional Democracy; the people, not the leader, are sovereign all power rests with them. In a constitutional democracy, the people who hold the ultimate power delegate to the Government certain limited powers. But all remaining powers are retained by the people. As stated in Amendment 10 of the Bill of Rights:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Madison, in Federalist Paper No. 10, begins with the “if men were angels”  quote to emphasize the importance of limiting power. He then explains in detail the Separation of Powers in the Constitution, under which no one branch is supreme; each branch is empowered to limit and restrain the power of the other branches. Madison and founders were primarily concerned with limiting the power of the President, in order that he not claim the power of the king.  For that reason, Madison and Hamilton explain that, as the body most close to the people, Congress represents the will of the people, and as such was considered the most important branch. That is why the legislative authority is the first  Article in the Constitution, and why Congress is specifically called upon to LIMIT the Power of Congress.  Further, they and specifically reject the notion, universal in Totalitarian Nations, that the Leader represents the will of the people.    

As a side note, that is why the Supreme Court decision in the Presidential Immunity case  is fundamentally flawed.  The decision rejects Congressional Limits on Presidential Power without any justification. This is exactly the opposite of what the Constitution requires.

Since Inauguration Day, Donald Trump has been ignoring any Constitutional and Statutory limits. He has seized the power of Congress by impounding funds and abolishing Congressionally established agencies, and he has fired numerous officials despite specific congressional prohibition. He has also repudiated the Constitution by attempting to abolish birthright citizenship [14^th amendment], by refusing to spend money  impoundment] appropriated by Congress, and by refusing or failing to comply with judicial decisions.

The attempt to impound funds authorized by Congress is a complete violation of the most important provision of the Constitution, the sole grant of the authority to raise and spend money to Congress. As Alexander Hamilton noted in Federalist Paper No. 59, allowing a President to usurp the power of the purse is the end of Democracy and the establishment of a Dictatorship. 

Now Trump has expanded his seizure of power by attacking outside organizations or individuals which constitute local centers of power which could resist his attempt to abolish democracy. Specifically, (a) he has attempted to limit the power of the press by intimidation, by firing frivolous lawsuits, and by denying access to information to disfavored media outlets; (b) he has attacked and intimidated  led Universities, attempting to dictate what is taught and threatening to withhold Federal Funds from any University which opposes him; (c) he has attacked states, again threatening to withhold funds for any disobedience, and he attacked Law Firms which represent clients who attempt to hold him to account for his unlawful actions.

The latest attempt by Trump to suppress alternative sources of power is a destroy Executive Order which abolishes all Union Representation in the federal government. This is a direct repudiation of the Federal Service Labor Management Relations act, enacted by Congress in 1978. 

The Act, which has never been amended by Congress. makes the Congressional finding Labor Unions are in the public interest and improve the efficiency of the Government. In relevant part, the  Act establishes specific rights for both Union and Executive Management and also established procedures which are binding on both parties. It also establishes the Federal Labor Relations Authority [FLRA] and Federal Services Impasses Panel {FSIP} to administer the Statute. It is particularly  relevant that the two agencies are granted by Congress the Authority to issue legal findings binding on the Executive Branch, and to prohibit the Executive Branch from violating the law. Over a million Federal Employes are represented by a Union, and it is Unions who, through the FLRA, hold the government accountable. [In addition to banning Unions Trump is attempting to shut down the FLRA in defiance of Congress

The two-rationale offered for the Order are ludicrous on their face. First, thew Order claims that the Unions are hindering government efficiency because they oppose the illegal actions he is taking, such as unlawfully firing thousands  of employees. This is a repudiation of the Statute; Under the Statute, the Union’s primary role is to oppose illegal or arbitrary and capricious action be the Executive. He is abolishing Unions because they are exercising the role authorized by Congress!  This nuts!

Trump’s claim that Union’s are a threat to National Security. If that were the case, why would Congress declare that Unions are in the national interest. Moreover, in the 50 years the Statute has been in effect, no President has ever raised that claim. Finally, he is relying on a provision which only applies to genuine real national security agencies such as the CIA or NSA. The real intent of that provision is not only set forth in the legislative history; I can confirm it because I was here there when these issues were being considered. As a future labor lawyer, it was obviously a topic of great interest.   

The Order should be seen for what it is: an attempt to prevent Unions from protecting the rights of Federal employees and, with the FLRA, to prevent the President from breaking the law. It is significant here that, of the thousands of Federal employees who have been terminated to date, 98% of them have been terminated illegally.  Federal Courts, in lawsuits filed by Unions, have prohibited these actions. . Every other President in history would be to comply with the law. Trump’s response has not been to comply, but to abolish the Unions which are bringing the suit. Trumps response is that, if you can’t win fairly, kill your opponent.

Those who do not support Unions or minimize them should heed Reverend Martin Niemroller about Nazi Germany:  

First, they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.