Limiting Lame-Duck Collective Bargaining Agreements That Improperly Attempt to Constrain the New President

Memorandums

TLDR

This executive order restricts federal agencies from creating or modifying collective bargaining agreements in the 30 days before a presidential inauguration, with exemptions for law enforcement. It requires retroactive disapproval of agreements made during this period and faces potential legal challenges regarding its constitutional basis, retroactive application, and unequal treatment of different worker groups.

This memorandum seeks to invalidate last-minute collective bargaining agreements (CBAs) negotiated by federal agencies during presidential transitions.

Summary of key provisions

  1. 30-Day CBA Freeze: Prohibits federal agencies from creating new CBAs, amending existing agreements, or extending contract durations in the 30 days preceding a presidential inauguration.
  2. Retroactive Disapproval: Requires agency heads to reject CBAs finalized during this window if not yet approved.
  3. Law Enforcement Exemption: Exempts CBAs covering law enforcement personnel from these restrictions.
  4. Legal Safeguards: Includes a severability clause to preserve the order if courts challenge the law enforcement exemption.

Questionable Constitutional Basis

The order cites 5 U.S.C. §7301 (general executive branch management authority) but faces tension with:

  • 5 U.S.C. §7114 requiring good-faith bargaining
  • Federal Labor Relations Authority precedent protecting existing CBAs
  • The Supreme Court’s NLRB v. Noel Canning decision limiting lame-duck policy changes

Arbitrary 30-Day Window

The timeframe appears politically motivated rather than policy-driven:

  • No historical precedent for this specific transition period restriction
  • Conflicts with typical 60-90 day transition planning norms

Selective Law Enforcement Exemption

Exempting police unions while restricting other federal workers:

  • Creates unequal labor rights standards
  • Suggests political calculation rather than operational necessity

Retroactive Application Issues

Requiring disapproval of already-negotiated CBAs:

  • Risks violating due process protections
  • Could constitute bad-faith bargaining under 5 U.S.C. §7116

Practical Implementation Challenges

  • Timing Conflicts: Inauguration dates (Jan 20) don’t align with typical fiscal/bargaining calendars
  • Definitional Gaps: No criteria for identifying “substantive changes” to existing agreements
  • Enforcement Mechanism: Relies on political appointees to self-enforce against predecessor’s actions

This follows a pattern from the 2020 transition when the Trump administration similarly attempted to restrict last-minute rulemaking. The Biden administration challenged those restrictions in court, creating potential hypocrisy concerns with this order.

Likely legal challenges:

  • FLRA Jurisdiction: Federal labor law gives FLRA—not OPM—authority over CBA disputes
  • Nondelegation Doctrine: Questionable whether §7301 grants this specific restriction power
  • Due Process Claims: Affected unions could argue vested contractual rights

This memorandum represents a significant expansion of executive authority over federal labor relations, with implementation likely requiring judicial intervention to resolve constitutional and statutory conflicts.

SUBJECT: Limiting Lame-Duck Collective Bargaining Agreements That Improperly Attempt to Constrain the New President

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 7301 of title 5, United States Code, it is hereby ordered:

Section 1.

Policy and Purpose

In the final days of the prior administration’s tenure, it purposefully finalized collective bargaining agreements (CBAs) with Federal employees in an effort to harm my Administration by extending its wasteful and failing policies beyond its time in office. For example, the Department of Education negotiated a CBA on January17, 2025 — 3 days before I took office — that generally prohibits the agency from returning remote employees to their offices.

Such last-minute, lame-duck CBAs, which purport to bind a new President to his predecessor’s policies, run counter to America’s system of democratic self-government. CBAs quickly negotiated to include extreme policies on the eve of a new administration are purposefully designed to circumvent the will of the people and our democracy. Such CBAs inhibit the President’s authority to manage the executive branch by tying his hands with inefficient and ineffective practices. The Supreme Court has explained that a President “cannot choose to bind his successors by diminishing their powers.”

Therefore, it is the policy of the executive branch that CBAs executed in the 30 days prior to the inauguration of a new President, and that purport to remain in effect despite the inauguration of a new President and administration, shall not be approved.

Sec. 2.

Standards for CBA Duration.

(a) No executive department or agency (agency) or agency employees shall make a CBA governing conditions of employment in the 30 days prior to a change in Presidential administrations that:

(i) creates new contractual obligations;

(ii) makes substantive changes to existing agreements; or

(iii) extends the duration of an existing agreement.

(b) Subsection (a) of this section applies only to the extent that its requirements do not prevent CBAs from rolling over under existing contractual provisions.

© To the extent that subordinate agency personnel have executed a CBA that violates the requirements of subsection (a) of this section, but the applicable agency head has not yet approved such agreement pursuant to 5 U.S.C. 7114©, such agency head shall promptly disapprove such agreement as inconsistent with the requirements of this memorandum.

(d) The requirements of this section do not apply to CBAs that primarily cover law enforcement officers, as that term is used in 18 U.S.C. 1515(a)(4).

Sec. 3.

General Provisions.

(a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

© If the Federal Labor Relations Authority or a court of competent jurisdiction issues a final judgment holding that section 2(d) of this memorandum would prevent this memorandum from being considered a Government-wide rule or regulation for purposes of 5 U.S.C. 7117(a)(1), section 2(d) of this memorandum shall be severed and rendered inoperative thereby and given no force or effect.

(d) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the UnitedStates, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(e) The Director of the Office of Personnel Management is authorized and directed to publish this memorandum in the Federal Register.