In his third week in office, President Trump is beginning to meet with resistance to some of his initiatives. Here is the latest.
The Empire Strikes Back
Court blocks voluntary separation program — at least, until Monday. As I reported last week, the administration had offered federal workers an exit package consisting of voluntary resignation in exchange for separation pay through the end of Fiscal Year 2025, which is September 30. As of yesterday afternoon, approximately 40,000 workers had reportedly accepted. The deadline to accept was 11:59 p.m. Eastern yesterday. But in a lawsuit filed in a Massachusetts federal court on Tuesday, three unions challenged the offer and asked the court to grant a temporary restraining order. According to the unions, the offer is “arbitrary and capricious,” and Congress has not appropriated any money that could pay for the packages after March. Yesterday Judge George O’Toole, a Clinton appointee, temporarily delayed the Thursday night acceptance deadline until he can hold a hearing on Monday.
Birthright citizenship ban is enjoined nationwide. According to news reports, there have been nine legal challenges to President Trump’s Executive Order doing away with birthright citizenship. This week, a federal judge in Maryland issued a nationwide preliminary injunction against the EO, on Fourteenth Amendment grounds. (The judge is Deborah Boardman, a Biden appointee.) The Administration can, and no doubt will, appeal to the U.S. Court of Appeals for the Fourth Circuit. This issue is likely to go to the Supreme Court.
NLRB’s Gwynne Wilcox sues over termination. I wrote last week about the President’s termination of Gwynne Wilcox, a Democratic member of the National Labor Relations Board and former Chairman, whose term was not set to expire until 2028. As expected, Ms. Wilcox filed suit this week in federal court in the District of Columbia, alleging that her termination violated the National Labor Relations Act, which provides for termination of Board members only for specified “cause.” She is seeking reinstatement to her position, a declaratory judgment, and other relief. The case has been assigned to Judge Beryl Howell, an Obama appointee.
The President had also terminated two Democratic Commissioners on the Equal Employment Opportunity Commission — Charlotte Burrows, a former Chair, and Jocelyn Samuels. Both Ms. Burrows and Ms. Samuels have said that they will sue.
Less exciting news
Trimming back the regulatory creep. Last Friday (after my Week 2 post was up), the President issued an Executive Order “Unleashing Prosperity Through Deregulation.” The EO says that, with limited exceptions, no federal agency can release new regulations unless it at the same time identifies 10 sets of regulations that can be repealed. The EO applies not only to actual regulations but also to less formal rules, guidance, memoranda, and the like.
The EO states, in part, as follows:
The ever-expanding morass of complicated Federal regulation imposes massive costs on the lives of millions of Americans, creates a substantial restraint on our economic growth and ability to build and innovate, and hampers our global competitiveness. Despite the magnitude of their impact, these measures are often difficult for the average person or business to understand, as they require synthesizing the collective meaning not just of formal regulations but also rules, memoranda, administrative orders, guidance documents, policy statements, and interagency agreements that are not subject to the Administrative Procedure Act, further increasing compliance costs and the risk of costs of non-compliance.
Agency heads will be required to ensure that the “total incremental cost of all new regulations” is less than zero.
This may mean that we won’t be getting any new regulations or guidance from federal agencies — including the U.S. Department of Labor (Wage Hour, Occupational Safety and Health, and Office of Federal Contract Compliance Programs), the NLRB, or the EEOC, for the next four years. I suspect that was the plan all along.
Ban on “lame-duck” collective bargaining agreements. The catchily-titled “Limiting Lame-Duck Collective Bargaining Agreements That Improperly Attempt to Constrain the New President” says that any CBA provisions signed 30 days or less before the inauguration of a new president will not be honored. This, of course, applies only to CBAs involving federal employees, and there are limited exceptions.
Can’t tell the General Counsels without a scorecard. Last week, I reported that President Trump had fired Jennifer Abruzzo, General Counsel of the National Labor Relations Board during the Biden Administration. The Acting GC was Jessica Rutter, who had been Deputy GC under Ms. Abruzzo. This week, the President fired Ms. Rutter and replaced her with new Acting GC William Cowen. Mr. Cowen most recently was Director of the NLRB’s Region 21, based in Los Angeles.
Meanwhile, over at the EEOC, the President has named Andrew Rogers as Acting General Counsel. I reported last week that the President fired Karla Gilbride, the EEOC’s General Counsel during the latter days of the Biden Administration. Mr. Rogers was chief counsel to EEOC Acting Chair Andrea Lucas when she was a Commissioner.
FAQs about the new EEOC. This week, the EEOC published some Frequently Asked Questions about the state of things at the agency. Among other things, the FAQs note that the EEOC currently lacks a quorum but that it will continue to accept and process charges as normal. We had heard rumors that the EEOC (at least, in some parts of the country) had stopped taking action on charges related to discrimination based on sexual orientation or gender identity, but there is no indication of that in these FAQs.
That said, I would expect the new EEOC to take a more narrow view of the U.S. Supreme Court decision in Bostock v. Clayton County, in which the Court held that discrimination based on sexual orientation or gender identity violated Title VII. The majority decision made clear that the Court was not addressing related gender identity issues, including shared restrooms and locker rooms, so I would expect the current EEOC to be less aggressive about charges involving those issues, as well as pronoun rules and usage.
I saved the most exciting news for last: “Career and Technical Education Month” proclaimed. The President designated February 2025 as “Career and Technical Education Month.” What happens to career and technical education in 2026 is not clear.
That’s it for Week 3. Have a lovely Career and Technical Education Month!
