Federal appeals court judges are weighing what limits, if any, exist for President Donald Trump to classify which agencies are essential to national security, while rolling back collective bargaining rights in the process.

Trump signed an executive order in March ending collective bargaining rights with federal labor unions at a wide swath of agencies, on the grounds that those agencies primarily serve a national security mission. He followed that initial executive order with a second order in August, exempting more agencies from collective bargaining.

Under the 1978 Federal Service Labor-Management Relations Statute, national security agencies are exempt from collective bargaining.

District courts temporarily blocked the Trump administration from enforcing its collective bargaining rollback. But the appeals court in May allowed agencies to proceed with enforcement.

A majority of the appeals court determined unions didn’t have the legal right to sue because the Trump administration said it wouldn’t end any collective bargaining agreements while the case is being litigated.

But several agencies have eliminated collective bargaining agreements with their unions after the appeals court’s ruling.

In the latest case, the Department of Homeland Security announced last Friday that it would impose a new “labor framework” in January 2026 that would rescind a collective bargaining agreement between the Transportation Security Administration and the American Federation of Government Employees.

Josh Koppel, a Justice Department attorney representing the Trump administration, said the district court “clearly erred,” when it determined President Donald Trump exceeded his authority in rolling back federal workforce collective bargaining rights.

During oral arguments on Monday before the U.S. Court of Appeals for the District of Columbia, Koppel said national security exemptions under the Federal Service Labor-Management Relations Statute are “a determination for the president to make.”

“Whether an executive agency performs national security work is really a question that the president is best situated to determine — with the president’s understanding of the national security threats, with the president’s understanding of how agencies work together, how they work independently to address those threats, and it’s not something that the courts have particular expertise in,” Koppel said.

“The president is the expert. The executive branch is the expert. Congress also, to some extent, in deciding what is necessary,” he added.

Lawmakers, however, are looking to undo the president’s collective bargaining rollback. The House last week passed the Protect America’s Workforce Act, which would restore collective bargaining rights for a majority of federal employees. The entire Democratic Caucus, along with 20 Republicans, voted in favor of the legislation.

Attorneys representing the plaintiff unions argued that the Trump administration has been overly broad with national security exemptions.

Richard Hirn, an attorney representing the American Foreign Service Association, said the rollback of collective bargaining rights for the State Department’s diplomatic workforce contradicts legislation passed by Congress.

“Congress would never have enacted the Foreign Service Labor-Management Relations Statute … if it had any doubts, as a general rule, it would be consistent with national collective bargaining by the Foreign Service officers, would be consistent with national security,” Hirn said.

“Congress knew what the Foreign Service officers were doing,” he added.

Jason Walta, an attorney representing the Federal Education Association, raised concerns that the Trump administration is selectively enforcing its rollback of collective bargaining rights. The executive orders, he added, carve out an exemption for unions that represent federal police officers and firefighters.

“Even those seem to have a fairly crucial national security function — certainly more crucial than the K-12 teachers that I represent,” Walta said.

Among its members, FEA represents teachers at schools run by the Defense Department.

Walta said the administration has been overly broad in applying a national security mission to an entire department, when that designation only applies to a small portion of its programs.

The entire Energy Department falls under executive order, because of its mission to safeguard the nation’s nuclear stockpile. But the subagency within DOE that performs that function is already excluded under a 2008 executive order from President George W. Bush.

“As I understand the government’s argument, the president could exempt the entire federal government, root and branch, and that would be both unreviewable and a proper exercise of the president’s discretion under this provision,” Walta said.

Paras Shah, an attorney representing the National Treasury Employees Union, told the three-judge panel that the executive order “nullifies most of Congress’s comprehensive federal labor relations scheme.”

“He can do it, and the courts can’t do anything about it so long as he invokes the statute’s narrow national security exemption,” he said.

Shah said the executive order rolled back the collective bargaining rights of three-quarters of the federal employees who had them.

“We can’t collectively bargain for them. Their rights are gone,” he said.

Koppel said those statistics “are a little misleading.” Four agencies that fall under the executive order — the departments of Defense, Veterans Affairs, Justice and Homeland Security — make up about 60-70% of the federal workforce.

“When plaintiffs bandy about these numbers, what they’re really talking about in the main is these really core national security agencies,” Koppel said.

The appeals court judges raised several questions about the scope and limits of the president’s discretion to set these national security exemptions to collective bargaining.

“It is a presidential determination, but the statute provides certain criteria for that determination,” Judge Neomi Rao, a Trump appointee, said during oral arguments.

Judge Bradley Garcia, a Biden appointee, said the court “ought not to second-guess” Trump’s determination of which agencies fall under the national security category, but added the “concern would be if the record reveals or suggests that the president didn’t make those determinations.”

“We can try to find out what definition the president applied, and if it is an utterly unreasonable definition, we can, in fact, have to step in and set aside this order,” Garcia said.

The executive order excludes the entire Treasury Department from collective bargaining because it affects the economic strength of the United States.

Judge Douglas Ginsburg, a Reagan administration appointee, questioned whether the Trump administration was taking an overly broad approach to its national security classifications of entire departments.

“Doesn’t the president then have some obligation to specify what really, where really is the primary function, since the consequence is overwhelmingly felt by people who don’t have that?” Ginsburg asked.

Koppel told the judges that because the Treasury secretary serves on the national security council, the department should be considered a national security agency.

“The president could say this agency — Department of Defense, Department of Energy — has as a primary function national security work, and even if there are subdivisions that do not, that is still the primary function of the agency, and the president doesn’t need to go to a lower level,” Koppel said.

However, Koppel also argued that Trump exempted some agency subdivisions from the executive order, demonstrating that the scope of the executive order was not all-encompassing.

“The president clearly was not just looking at one subdivision, saying, ‘They have a primary function of national security. Therefore, I’m going to exclude the entire agency.’ The president did do tailoring,” he said.

Garcia, however, raised some concerns about the scope of that tailoring.

“One reading of that is that the president applied a reading, under which any employee that does anything that promotes the general welfare of the United States is doing national security work,” Garcia said.

“This is my fundamental question: Your arguments about non-reviewability suggest that the president ought to almost always win in a case like this, but the fact that there are statutory terms — national security, primary — that can be judicially reviewed in edge cases means that your threshold argument that courts never review any determination under the statute is at least on a shaky ground,” he added.

Before getting into the merits of the case, Koppel argued that these cases challenging the breadth of the executive orders should be first heard by the Federal Labor Relations Authority.

“FLRA has jurisdiction to consider whether these agencies are properly excluded from the provisions of the FSMLRS,” Koppel said.

The FLRA often adjudicates whether individual employees perform national security work to determine whether or not an employee can be part of a collective bargaining unit.

Shah said the FLRA is not well-suited to judge whether the executive orders exceed the president’s authority.

Last year, in its ruling in Loper Bright Enterprises v. Raimondo, the Supreme Court struck down a precedent that required courts to defer to federal agencies’ reasonable interpretations of ambiguous laws.

“It’s never decided whether an executive order like this is valid or not, so it cannot apply its distinctive knowledge to that question — especially in this day and age, post-Loper Bright, where anything it says will not get deference in any event,” Shah said.

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