Limiting Lame-Duck Collective Bargaining Agreements That Improperly Attempt to Constrain the New President
This presidential memorandum prohibits the execution of collective bargaining agreements (CBAs) in the 30 days preceding a presidential transition that create new obligations, alter existing ones, or extend current agreements.
The order aims to prevent outgoing administrations from binding their successors to policies through last-minute agreements, asserting the new president's authority to manage the executive branch.
Exceptions are made for CBAs primarily concerning law enforcement officers, and the order includes provisions for severability and non-enforceability against the government.
Arguments For
- Intended benefits: Prevents outgoing administrations from using last-minute agreements to bind the incoming president to undesirable policies, ensuring the new administration's ability to implement its agenda.
- Evidence cited: Mentions a Department of Education CBA finalized three days before the new president's inauguration, which limited the agency's ability to bring remote employees back to the office. The memorandum also cites Supreme Court precedent regarding the inability of a president to bind their successors.
- Implementation methods: The memorandum establishes specific standards for CBA duration and approval, detailing the actions agency heads and the Office of Personnel Management must take.
- Legal/historical basis: The memorandum cites Section 7301, Title 5 of the United States Code, and previous Supreme Court rulings on presidential power.
Arguments Against
- Potential impacts: Could disrupt ongoing negotiations and labor relations. May face legal challenges over its potential effect on existing contracts and labor rights.
- Implementation challenges: Might face resistance from unions and agencies accustomed to the existing bargaining processes and timelines. The interpretation and implementation of the 30-day restriction could be contentious.
- Alternative approaches: Could have explored alternative methods for addressing concerns about last-minute agreements, perhaps focusing on legislative efforts or internal agency review procedures.
- Unintended effects: Could potentially discourage collaboration during a transition period. May cause delays in crucial workforce management decisions.
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
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 January 17, 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.
This section establishes the policy's purpose: to prevent outgoing administrations from using last-minute collective bargaining agreements (CBAs) to restrict the incoming president's ability to set policy.
The order cites an example of such a CBA and argues that such agreements undermine democratic governance by overriding the will of the newly elected president.
It references Supreme Court precedent supporting this view
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.
(c) 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(c), 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).
This section outlines specific standards for the duration of Collective Bargaining Agreements (CBAs).
It forbids creating new CBAs, making substantive changes to existing ones, or extending current agreements in the 30 days before a presidential changeover.
However, it allows for automatic renewals under existing contractual terms and makes an exception for CBAs involving law enforcement officials.
It also addresses the handling of existing, unapproved agreements that violate its standards.
**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.
(c) 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 United States, 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.
This section contains general provisions clarifying the memorandum's scope and implementation.
It ensures the memorandum doesn't interfere with existing legal authorities or the OMB's functions and states that implementation depends on available funds.
It includes a severability clause specifying that section 2(d) should be removed if it prevents the order from being viewed as a government-wide rule.
Crucially, it declares the document does not create any legally enforceable rights.