This is Bloomberg Law with June Grossel from Bloomberg Radio. In a five to four vote, the Supreme Court intervened for the first time to bolster President Donald Trump's campaign to wipe out federal spending programs he opposes.
In a Friday order, five of the.
Court's conservative justices cleared the Education Department to withhold money for teacher training projects in eight Democratic states. The Education Department had canceled one hundred four of one hundred and nine grants under two training programs because of concerns about diversity, equity, and inclusion. The justices halted a trial court ruling that had temporarily required the department to keep covering incurred expenses. Chief Justice John Roberts and the court's three liberal justices
indicated they would have denied the government's request. Joining me is an expert in constitutional law. Harold Krant, a professor with the Chicago Kent College of Law, tell us about the cancelation of the grants and the lawsuit by eight Democratic states over.
That the Education Department had decided that, for whatever reason, the too many teacher training grants had been awarded and therefore decided to claw them back. They clawed them back on the grounds that the grants might have in some ways contributed to illegal dei initiatives, So that's unclear, and they used that reason for all of them. Un mass. They didn't individually pick out a grant to the Chicago schools versus New York schools versus their college training program.
They basically issued boilerplate stopping millions of dollars of grants with no specificity, just using boilerplate language. The lawsuit then was filed to attack the administration's to stop the grants, and the trial judge issued a tro saying that the government had to continue honoring the grants until there was
a full decision on the merits of the case. And that's the status of the issue, which was then raised first to the Appellate Court and finally to the Supreme Court on its emergency docket, and the Supreme Court gave the Trump administration a small victory on Friday by saying that the court should not have an issue the temporary restraining order which turned into a quasi injunction in the case, and they should have allowed determination to take effect at
least until deciding the merits of the case.
In everything to do with DEI. The Trump administration says that DEI is unlawful. Is there support for that theory?
Well, in some conceivable contexts, it might be if you end up favoring, you know, women over men for some reason, or if you end up favoring a particular religious group as opposed to another in an effort to attain DEI objectives, that would violate the civil rights laws as well as the Constitution argically, But there's been no showing that that's what's happening in these grants in particular or in other areas.
So the administration is just drawing with a huge broad brush and saying that if you talk about issues of fairness justice, that's a pan amount to violating either the statue or the Constitution.
Explain what the majority said in its opinion. Why did they decide this way?
The real question is why did the Supreme Court take this case at this juncture. But in terms of what it's said, the most reasonable part of what it stated was that the lawsuit was filed in the law court. The theory is that at the bottom of this claim is a claim for namely, that the grant should be funded. That is a claim for money, and therefore the plaintiff should have rallied their claim to the Court of Federal Claims, which is the tribunal that Congress has directed for all
pursuit of monetary claims against the government. And that's a reasonable argument. There is some fuzziness about the Court president about when a claim is won for money. So you could stay in this case that it's about money, or it's about not having your grants arbitrary and capriciously violated. There's two ways to look at it, and so the
court will have to make that decision. Indeed, that is a common issue for almost all of the grants, the hundreds of millions of dollars of grants that the Trump administration has terminated in order to.
Do this, the majority found that the Trump administration would likely win the case.
Well, they didn't say that, interestingly enough, they never talked about well, they never talked about the merits of whether or not the Trump administration had the power to deny the grants. But they did say that the Trump administration may well win on the jurisdictional issue, and so that will have to be decided at some point by the Court's appeals and then, most likely by the Supreme Court, because it is an issue that is underlying all of
these massive grant cases. With respect to the River Bull Harm, the Court was on shakier ground. They seemed to say that the planters all had enough money to continue the programs and weren't relying on these grants. And while that might be true for a five day period, it certainly will not be true for any extended period of time while the litigation continues. So its decision with respect to
harm is very questionable. But again, I think with respect to jurisdiction, the Supreme Court at least made a plausible decision.
So the Chief Justice John Roberts sided with the Court's three liberals who dissented. Kagan wrote a descent, and Justice Jackson wrote a descent that Justice Soda Mayor joined in, but the Chief didn't join in any of those.
It's hard to read the Chief Justice's position here. I mean, at the end of the day, it might be that he resents the Trump administration demanding that the Court used this emergency docket to decide all these cases, and I think there are still at these five or six more pending. That may have been the reason, but we certainly don't know,
because he didn't express it. Justice Bart obviously was the interesting vote because she switched from the prior Supreme Court decision, which cided against President Trump's administration on somewhat similar grounds. So whether she has changed her mind, whether there was something unique about this case, again, we simply don't know.
Justice Tanji Brown Jackson in descent, said that it was beyond puzzling that a majority of justice is conceived of the government's application as an emergency. I mean, where is the emergency here?
The only emergency is the fact that the money might be spent in the interim for the grants and that the Trump administration will not be able to recollect it. And I think that is probably true to some extent. That would be very difficult for the Trump administration to get back the money because it will be spent, you know, on what Congress wanted to be spent on, which is teacher training.
And maybe this goes to what you said.
Both Justice Kagan and Justice Jackson said that nowhere in the papers does the government defend the legality of canceling the education grants.
Yeah, I mean, the question was one of jurisdiction, but in terms of whether the administration had the power to cancel the grants. There was silence part of the Trump administration because there is not clear law that would authorize the administration to basically cancel the grants because it no longer sees them as a priority. I mean, if they could show that these grants were in some ways fostering illegality,
then they would have cause to cancel the grants. But otherwise the administration needs to honor them, and that they have not done.
As of today, the Trump administration has made seven emergency filings with the Supreme Court. This is the first time they've won. Do you see any significance in that.
I don't. I mean, I think that this might be terribly thought. This might be a case in which the jurisdictional issue is thorny, and therefore the Court thinks that it's likely going to ultimately be decided and favor the Trump administration, and that is plausible. Or it might be that some members of the Court think that it's okay to give the Trump administration little wins as long as it don't buckle in in a major case. That remains, of course, is totally specult. That remains to be seen.
You know, I think this as just the one data point. We're going to see the others again, because there's more cases that are pending before we can make any kount of judgment.
In its papers, the administration is casting the Supreme Court request as having broader significance for the other lawsuits pending. The Acting Solicitor General wrote, only this court can right the ship, and the time to do so is now. I mean, there's a message there that this is broader than just this case.
Well, it's broader in the sense of the jurisdictional posture. And what the acti solcial General may mean is that from now on, all of these cases have been brought before the Court of Federal Claims. And the question is whether the Court of Federal Claims has the capacity to hear all of these cases and to decide them quickly. But this is not a victory on the merits because as we discussed, I mean, the quote mentioned not one win of the fact that the administration has the legal
power to do what it did. Its only question is where the lawsuit should be situated.
As of today.
So the Trump administration today appealed because they don't want to bring the prisoner back from Venezuela. So that is the seventh administration appealed to the Supreme Court on the emergency docket. There are some other ones that seem more urgent. I'm wondering why they picked this one.
I really can't speculate on this one. The only sort of guesswork that I could come up with is that this is not as important as the other ones, and so they wanted to again give Trump a small win before they would have to really buckle down and reach the merits of a case as opposed to just deciding on jurisdictional grounds.
So there have been lots of articles lately. You mentioned Justice Barrett. There have been lots of articles about how she might become a moderate justice, siding more with the middle of the court. But in something like ninety percent of the cases she sides with the conservatives, and so I'm wondering if all this is a little overblown. Because she sided with the liberals in a few.
Cases, there is at least a progression of justice spirit towards the middle, and everybody is holding the breath and watching to see what will happen. I think that that progression may well continue, but that's speculation, but I am very convinced that she will have the opportunity because you're going to be a slew of controversial cases that will have to be decided by the court.
Coming up next on the Bloomberg Lawn Show, I'll continue this conversation with Professor Harold Krent. The latest on the marilynd man who was wrongly deported to a notorious prison in L. Salvador. I'm June Grosso. When you're listening to Bloomberg. Albrego Garcia had been lawfully living in Maryland with his wife and young child, both US citizens. A twenty nineteen immigration court order said he could be deported, but not to L. Salvador, where he says he'd face gang based
extortion and persecution. Nonetheless, immigration officials arrested him on March twelfth and accused him of playing a prominent role in MS thirteen, though he hasn't been convicted of a crime or even charged with one. Garcia was deported to L. Salvador to its notorious prison there on March fifteenth. Despite
the court order. A federal judge gave the government until eleven fifty nine pm Eastern time tonight to return him, and a federal appeals court unanimously declined to block that order, so the Trump administration went to the Supreme Court asking it to block the order. Late this afternoon, Chief Justice John Roberts paused the order, requiring his return by tonight. The Supreme Court is now considering the case, with the Chief Justice asking Garcia's attorneys to file a response by
tomorrow at five pm. I've been talking to Professor Harold Krant of the Chicago Kent College of Law how the Trump administration has very close contacts with the president of l Salvador, and they now have a multimillion dollar contract to house deporties in the prison in El Salvador. Yet the administration is claiming they don't have the power to get him back.
That strikes me as just not believable.
It does seem ludicrous, And this whole case is just so sad. I mean, there's an individual who was pulled out of his car driving with his young son, who has a order from an immigration judge that says he has to be protected and not sent back to El Salvador. So what do the authorities do? They without giving me any kind of du process, without ascertaining or giving him
a chance to tell his side of the story. They cut him off to various places in the country and ultimately send him to El Salvador, where there's judicial order saying he can't be sent and when there is a question in court, the attorney doesn't know the answer, and all he can think of is that there was an administrative mistake, and that's what happens when there's no due process. Administrative mistakes can turn out to be in a tragedy.
And then the court says, well, bring him back, and the Trump administration says and actually goes to the Supreme Court and says, that's too broad of an order because we don't know whether we can bring him back. And of course I'm empathetic to a certain extent that the administration may not be able to get him back in
a day. But given the fact that they have something like a six million dollar contract with El Salvador to house these individuals, one would think that they have with enough kind of financial pressure that can be applied upon El Salvador to release the individual at least within a
matter of days. And it's a truly outrageous case. And I have to think that Supreme Court is going to say that maybe the lower court judge needs to narrow the injunction a little bit to use you know, all speed in order to bring him back, or give them a week or something to bring the guy back. But it's just, you know, an administrator's mistake leads to sending somebody away from his family, somebody who's in now being housed with people that he has a protective order against.
It's just simply outrageous.
Do you think the Trump administration is doing this?
Because if they admit this one, if they bring this one back, and it opens the floodgates, because you have all these people, none of them was given a hearing.
You know, I think that here. You know, whether or not mister Garcia was a member or is a member of the gang is unclear, but certainly he has an order to prevent him from doing this. And we don't even know about the other individuals. Right, some were probably gang members, but some were mistaken because of their tattoos
or their friends, et cetera, et cetera. And this again is just a clear example of what happens when you don't follow process, and the administration doesn't want to follow process, and so mistakes are made, mistakes can be fatal. I'm glad in some ways you're going to Supreme Court because I think on the merits, I think the Supreme Court
is going to really administration a loss. Again, I don't know about the scope of the injunction or the speed with which they have to bring him back, but there's no way that the court can justify what happened here because it is a tragedy.
Out of seven emergency applications, this seems to be the first one that is really an emergency.
Yeah, and again I think that the Court is itself backed into a corner by using its emergency doctrine so frequently. But I agree this one is an emergency. The individual's life is probably in danger and his rights were incredibly violated, and so I hope that the Court does use its emergent and see docket to affirm what the lower court has ordered, because that will ensure that the administration acts
with far greater swiftness than otherwise might do. Awesome, incredible after this recent hearing on Friday, is that the Attorney General suspended the government's attorney for being frank before the court and acknowledging that they don't know why this individual was arrested, and they didn't know why that there had been no effort to bring him back once they were alerted of the mistake, and his price for being frank with the court was the fact that the Attorney General
suspended him for being insufficiently loyal to the administration. A chilling moment.
Well, it looks like the court is acting very quickly in this case, because the Chief Justice has ordered Garcia's lawyers to respond by five pm tomorrow.
Thanks so much. How well, that's.
Professor Harold Krent of the Chicago Kent College of Law. Turning now to Trump's battles with federal unions. Trump is making a sweeping attack on collective bargaining rights as he aims to lay off government workers. The administration has moved to invalidate contracts between a swathe of US government agencies and the two largest unions representing federal workers, claiming that the collective bargaining agreements are impeding his efforts to reform
the government and pose a threat to national security. But the unions are fighting back in court. The American Federation of Government Employees and the National Treasury employees. Union have sued the Trump administration in separate lawsuits, saying it's violated the Constitution with its anti union directive, including violating its free speech and due process rights. My guest is labor law expert and Lafasso a perfer asked with the University of Cincinnati.
College of Law.
So this started with the Trump executive order instructing agencies to stop collective bargaining with federal unions because of national security concerns. Tell us about the order and the law he's using.
He is issued in executive order based on five USC. Seventy one oh three, and it's really piggybacking on an old executive order that Jimmy Carter issued. And Jimmy Carter issued that executive order shortly after the Act that created the Fair Labor Relations Authority, which is the authority that deals with federal employees. It's the act that gave federal
employees the rights to unite. And that act says that one, it gives them the right to organize, but certain employees don't have the right to organize because of national security, and then it kind of lists a few of those, but then it gives the president power to issue an order excluding any agency or subdivision thereof from coverage under this Chapter if the President determines that the agency or subdivision has as a primary function intelligence, counter intelligence, investigative,
or national security work, and the provisions of this Chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations. So even though all of these employees have somehow been unionized and it's been consistent with national security, he is stated in his executive order that he has to do this because of national security reasons and considerations, and that's the important word, considerations,
because a lot, it is a lot. This is disenfranchising many, many, many employees. So in his view, the fact that they're in a union and their collective bargaining agreement has made it difficult for him to implement his national security policy. That's in and of itself a really broadsweeping order that no president has ever done. Not even after nine to
eleven did we have anything like this. We did have some issues back in nine to eleven, and but much more narrow and national security was much heightened back then when we actually had a threat on the ground.
So after issuing the executive order, the Trump administration doesn't wait to be sued. Instead, it sues in federal court in Texas.
He wants to get around the idea of waiting for all this to happen. So what he did was he filed a complaint in the West Eastern District of Texas, which is a very favorable district to the president's agenda, and he filed this in the Western District of Texas, asking for a declaratory judgment. Now, a declaratory judgment is
under the Declaratory Judgment Act, the Declaratory Judgment Act. It's an old statute, but it is used, and it was a way to distinguish between something called advisory opinions and declaratory judgments. Advisory opinions are not allowed, and declaratory judgments are. An advisory opinion is when the president asked the Supreme
Court for its opinion on whether something's constitutional. So Jefferson did that way back when in the early eighteen hundreds, and the Supreme Court said, justin Marshall said no, no, no, we can't answer that question. That's an advisory opinion, and that's up to you to decide, and you do it and then if you get sued, we will decide that.
And in fact, that's how the Office of Legal Counsel eventually got made because in the Office of Legal Council is an executive branch agency that counsels the president on the constitutionality of his her their acts. So the first question here is is this really declaratory judgment? And as he able to do this, so put aside whether this actually fits into the category of declaratory judgment and whether
it fits into the category of advisory opinions. What he's doing is he is intentionally and I don't blame him for this in terms of the mindset going to a favorable court what's called forum shopping. There's little doubt in my mind that this judge will find in favor of Trump, and we'll go to the Fifth Circuit and the Fifth Circuit will find in favor of Trump. And where does that leave you the Supreme Court if it decides to take the case.
Coming up next on the Bloomberg Law Show, the Union Sue one in California and one in DC. I'm June Grosso and you're listening to Bloomberg. The Trump administration is moving to invalidate contracts between a swamp of US government agencies and the two largest unions representing federal workers, claiming that the collective bargaining agreements are impeding efforts to reform
the government and pose a threat to national security. The unions are fighting back in court, suing the Trump administration saying it violated the Constitution with its anti union directive, including violating its free speech and due process rights. I've been talking to Professor Ann Lafasso of the University of Cincinnati College of Law and tell us about some of the legal questions that come up because of these Trump administration moves.
So this really raises a lot of questions. It raises libor law questions and constitutional law questions. So FIRSUS canny do it, Well, that's what the litigation is going to decide. So he's going to say that he can do it because of national security, and on the face of the statute that is true. He can do things in national security,
but you can't just declare national security. They are certainly taking a broad reading of this statute in a way that the courts don't want broad readings of statutes right now. They don't want that kind of delegation of authority. They've been very very quick to say, uh uh uh, this is too much. Congress didn't delegate this type of authority to anyone, and that's not what the president can do. Okay, that's possible. That's one thing. Another thing would be, well,
it has me consistent with national security. Well, he's arguing that it's the collective bargaining agreement. We turn to work policies that are problematic, and he says.
Some of them.
So wouldn't the solution be if that's true, the dispute is really about the collective bargaining agreements and you avoid them because of national security is concerned, And wouldn't that just go to the FLRA as an administrative proceedings.
The FLRA being the Federal Labor Relations Authority. We'll talk about that in a moment. Let's turn to the two lawsuits by the unions. What are their chief contentions?
The unions are steering and they have three main arguments. First, they're claiming that Trump violated their First Amendment rights by retaliating against them because they spoke in a way that he deems to be anti Trump. Second, they say that Trump's order violates the Fifth Amendments Due Process Clause. The Fifth Amendments Due Process Clause is like the Fourteenth Amendment, but it applies to the federal government about the state governments.
And they say that the violates due process because they literally stripped these employees of their contractual rights without any due process, which they are titles to under the Fifth Amendment. And three, they say that the executive order violates the separation of powers. From this argument means that Congress made a statute about fifty years ago. That statue get broadly
granted union rights to federal employees with few exceptions. And then presidents have under that act narrow authority to designate certain executive agencies or subdivisions that they deem should not be organized at the moment because of national security reasons. And presidents starting with Jimmy Carter have used that clause, but only to designate very small parts of the of
the federal agencies. This case actually does a sweeping broad declaration of unionizing or evoking the recognition of the union rights of many they're claiming most federal employees. So the AFL and the unions are claiming, which is if you look at the list it is expansive, it's tweeping, it's very broad, it is shocking. Actually, So those are the three things that they are arguing.
Does this all have to do with his attempt to fire federal workers? So he's trying to eliminate the union connection, so he.
Can do this okay, meaning he has authority to do this. Whether he has authority to do with this broadly is very different. So this is clearly part of his agenda to fire the employees because they won't have the collective bargaining rights. They'll still have certain statutory rights, but they won't have their collective bargaining rights, and this way they can fire them more easily, possibly because they're still statutory rights. I mean, if you have a contract rather than being
at well, you have a lot more rights. Everyone would prefer a contract to being at well.
Have these union workers been fired already? Do we know?
I mean, there's so many that I do not know whether any of these have been fired. My guess is that possibly some of them have been fired, but not every single one. But it's so expansive it can't be that I would be surprised if all of these were fired, because it would be the government, right, But you know, you have to ask yourself, really administrative assistants have a
national security role. I mean some might. You know, he has the entire Department of the Treasury except the Bureau of Engraving and Printing, the entire Department of Veterans Affairs, the entire Department of Justice, the entire Department of State, the entire Department of Defense except for any subdivisions excluded previously, so that means they're already in there. The Department of Health and Human Services specifically, and it lists seven agencies,
and then Homeland Security it's lists twelve subagencies. I mean, this is expansive, This is really real a lot of employees, and that is what the shocking part of this is. Now again, like after nine to eleven, you think something Bush might have done something like this, but he didn't do this broad sea recognition of union workers, and that must have been a time that was much more problematic
in terms of national security. And the complaint that he files in the Western District of Texas specifically focuses on the word considerations, so national security considerations, which is a fuzzy word, so he's not claiming that there's actual national security urgency here, And one thing is important for people to understand is that national security is like to get
out jail free cards for the government. When they say national security, that means the courts look at that very seriously because they like to defer to the president of national security. But imagine if the president just has to use the magic words, wave his hand, and then anything he does is then a matter of national security, that he could do whatever you want.
So this is such a broad.
Sweeping interpretation that further consolidates power in the hands of the president and the executive agencies. Now he's actually delegating that authority the agencies themselves, so he's actually telling them that they have to do this. So that's another end run around this to some extent, is that the president is not suing. The agencies are suing, but it's the president who acted, and then they acted under the president's authority.
So that's an interesting twist. This is raising all kinds of issues that are new, that are stretching the law in a way that I have never personally have not seen.
Is the Trump administration also sort of trying to paralyze the FLRA by firing the board chair.
Yes, And he also fired the entire impasses panel last week. So the impasses panel is what decides disputes. When the parties are at impass over something, then it goes to the impassive panel. So if they're bargaining over a contract right now, there's no impasses panel. Every single one of them was fired last week. I mean that's I guess, right, So that's the board. Those are the big guys. Those are the big shots, right, and now they're special government employees.
They're paid minimally, they're paid by the hour. They're not full employees. It's a part time job. So the personal effects on them is much much weaker than what's happening to these actual employees. But it has the same effect on the government, which is to make it dysfunctional. So what he's done is is use this authority in the name of national security to fire most the unionized workforce in the federal government under the guise of national security.
And at the same time he's gotten rid of the agencies but could actually resolve these seats like the FLRI.
What will happen if you end up with conflicting orders from Texas and let's say California, which seems likely.
Well, this is interesting because Texas they're asking for a nationwide declaratory judgment. I would say, there's likely to be some conflict, and there's so many issues here because one issue is can there be parallel seats. So the Trump administration, I certain will argue that there can't be parallel seats in the one in the Western District of Texas is
the correct one. And the unions are going to argue that whether or not there can be parallel seats, his suits cannot be sustained because there's no declaratory judgment that is permitted, that his case doesn't fit under the Declaratory
Judgment Act. So that's what they're so Again, the presidents have used this authority, but never in this broad sweeping way, and it reads very much like an m run around the unions in terms of the rights of the employees, their due process rights, their rights under their contracts, or their contractual rights, all in the name of this so called national security consideration that is undefined.
We'll see how it all plays out in three different courts.
Thanks so much.
And that's Professor An Lafasso of the University of Cincinnati College of law. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to bloomber