Three New Executive Orders Drain the Swamp

On Friday, May 25, President Trump continued to “drain the swamp” by signing three new Executive Orders designed to allow the swifter removal of underperforming government workers, ensure that taxpayer-funded union expenditures are subjected to higher accountability standards, and require a common-sense approach to collective bargaining in government employment. Given that over 2,100,000 people presently work for the federal government, the overhaul of discipline and union policies will enable substantial changes to the currently bloated, and often turgid, personnel bureaucracies throughout the system.

First, in a move that takes square aim against venal/incompetent/AWOL federal government workers, the new EO entitled “Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles” cuts the time it now takes to fire a chronically unfit employee from six months to a year – the current timeline in agencies that have a 120-day waiting period – down to a 30-day period for such workers to demonstrate improvement after being warned of deficiencies. For example, a Post Office employee fired both for using cocaine on her lunch break (which resulted in a felony conviction) and for bringing illegal drugs onto government property, was reinstated by the Merit Systems Protection Board after a mere 90-day suspension. In addition, layoff determinations will now emphasize quality of performance over seniority.

Second, in the EO entitled “Executive Order Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining,” the President directs federal agencies to renegotiate their contracts with public sector unions to cut down on waste. For example, in some instances, the government pays expenses on both sides of a labor appeal, even though unions often have their own resources to pay for such work on the employee side. The government will also publish collective bargaining contracts online so that the American people can gauge for themselves the government’s efficiency at negotiating these agreements.  

Third, the EO entitled “Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use” curbs abuses of government-paid union activities. Presently, for example, some government workers – including one physician in a VA hospital – spend 100% of their time on union activities at government expense, while the government has to contract for additional labor to cover their job duties. Federal employees may now spend no more than 25% of their paid time on union activities, a change estimated to save some $100 million annually. The order also provides that government agencies charge rent to unions occupying federal government space.

In each case, the Executive Orders leave substantial flexibility for individual government agencies and departments to set rules that are appropriate for the agency, within the bounds of existing labor and civil service laws. Currently, it is extremely difficult to fire employees from the civil service, even after felony convictions. On the collective bargaining side, contracts currently may take years to be negotiated, and substantial waste is built into the system, coupled with a lack of transparency to the public both of the process of collective bargaining, and of its substantive effects.

Dr. Jeff T.H. Pon, Director of the U.S. Office of Personnel Management (“OPM”), hailed the new orders as promoting government efficiency and accountability: 

These Executive Orders are about protecting taxpayers’ dollars, including those of our dedicated federal employees, and putting those resources to use in the most efficient and effective way possible,” stated Director Pon.  “By holding poor performers accountable, reforming the use of taxpayer-funded union time, and focusing negotiations on issues that matter, we are advancing our efforts to elevate the federal workforce.  The vast majority of our employees are dedicated public servants who are dedicated to their missions and service to the American people.  It is essential that we honor their commitment, and these measures reflect just that.  Looking ahead, our focus will be on continuing to leverage technology to digitize our federal human resources infrastructure, build modern public human resources systems for the 21^st century, and celebrate the hardworking federal employees who serve our great Nation each and every day.

AG Sessions Upholds Rule of Law by Enforcing Religious Liberty Laws

Pursuant to President Trump's religious liberties Executive Order in May, Attorney General Jeff Sessions today issued interpretive guidance on federal religious liberty laws to federal agencies.  Not only does this protect Americans' important First Amendment rights but it also promotes the rule of law by creating standards for consistent application of existing law across the Executive Branch.  

Attorney General Sessions described twenty religious liberty principles that would be used in Executive Branch actions and summarized in detail the legal basis for these principles (citations omitted):

The people, acting through their Constitution, have singled out religious liberty as deserving of unique protection.  In the original version of the Constitution, the people agreed that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." . . .  

The Free Exercise Clause recognizes and guarantees Americans the "right to believe and profess whatever religious doctrine [they] desire[ ]."  Government may not attempt to regulate religious beliefs, compel religious beliefs, or punish religious beliefs. . . . The Establishment Clause, too, protects religious liberty.  It prohibits government from establishing a religion and coercing Americans to follow it. . . . 

Finally, the Religious Test Clause, though rarely invoked, provides a critical guarantee to religious adherents that they may serve in American public life.  The Clause reflects the judgment of the Framers that a diversity of religious viewpoints in government would enhance the liberty of all Americans.

In addition to the constitutional protections for religious liberty, Sessions summarized federal statutory protections, including the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), Title VII of the Civil Rights Act, and the American Indian Religious Freedom Act.  Taken together with the cases, regulations, and Executive orders interpreting them, these form the basis for protection of religious liberty and the federal government has now been given clear guidance for applying these constitutional and statutory provisions.  Sessions specifically directed the Department of Justice to take actions to implement the guidance, including review by the Office of Legal Policy of any rulemaking or agency action for conformity with the guidance and principles.

President Trump, through the expert assistance of Attorney General Sessions, is fulfilling his promise to "lead by example on religious liberty."  Clarifying and enforcing existing laws is vital to preserving the rule of law, and the Trump-Sessions Department of Justice should be applauded for advancing the rule of law.

Religious Liberty Experts Discussed Current Issues During National Policy Conference

During RNLA's National Policy Conference in May, Prof. Robert Destro from the Columbus School of Law at The Catholic University of America and Kellie Fiedorek of the Alliance Defending Freedom opined on President Trump's executive order on religious liberty, recent litigation, and other current legal issues regarding religious liberty and rights of conscience.  Here are highlights from the discussion.

On President Trump's executive order: 

Ms. Fiedorek: Definitely a step in the right direction that we would have such a commitment from a brand new administration to protecting the religious liberty of all Americans. . . . There is more to be done as we move forward. . . . We still need to see the agencies take action [to protect rights of conscience]. 

Prof. Destro: What you have is a theme that has now been set by the President.  What we need the President to do is to get those agencies staffed up with people who really understand what religious liberty is all about . . . . All you have to do is see how often the Democrats campaign in churches from the pulpit, and then you see on the other side of the spectrum all these churches that are scared to death of the IRS. And what we have found in the abuse of the IRS scandal is that they actually did have something to be afraid of.

On rights of conscience in the post-Obergefell v. Hodges era:

Ms. Fiedorek: We have such a rich history in the United States of balancing very important government interest with a vast variety of viewpoints and protecting individual freedom . . . . In the past few years, we’re seeing a growing intolerance, particularly advanced by the government, for those who want to live and work consistent with their convictions about marriage. . . . We’re seeing the government use the force of law to come after them and attempt to compel them to speak a message or participate in an event that violates their sincerely held beliefs. . . . 

The [Washington State] Attorney General conceded during oral argument that when [Baronelle Stutzman] creates floral arrangements, she does actually engage in speech, that that is actually expression.  He went on to say that the government can dictate and control what type of expression she creates and for what type of events she does so.  I think that should frighten all of us when the government has that much power that it can come in and say this viewpoint is allowed but this viewpoint isn’t. 

Prof. Destro: What we need to do is recapture in our understanding of religious freedom itself is that the Constitution has religious freedom written into its DNA.  Everybody talks about the First Amendment, but the no religious test clause of Article VI was there before the First Amendment was.  And there [are] also the negative implications – the qualifications clause[s] deliberately left religion out of the qualifications. . . . One of the most bloody battles during the Constitutional Convention was over the swear or affirm clause, because Quakers couldn’t swear, and neither could Native Americans. . . . 

This is compulsion again. [Plaintiff] is entirely entitled to use her own money to buy her birth control pills, but she has no right to stick her hand in the wallet of the Little Sisters of the Poor to get her money.  Religious liberty is not an entity to itself.  What was happening, what was suggested in Hobby Lobby and other cases was a public taking for private use. . . . We need to develop a more holistic way of looking at, we are all Americans and the Constitution welcomes us here, and if the New York dressmaker doesn’t have to make a dress for Ivanka Trump, then neither does the florist have to make the bouquet for the gay wedding.

Ms. Fiedorek: Religious freedom is for both the religious and non-religious alike.  It protects all of us.  Civil liberties absolutely travel together, and when one starts to get chipped away at, you’ll soon see other freedoms chipped away at.

On Trinity Lutheran v. Comer:

Ms. Fiedorek predicted a 7-2 decision, based on oral argument (and she was correct when the opinion was released in June): Justice Breyer was very concerned that if the lower court’s ruling stands, what does this mean for other neutral programs and benefits, including safety. . . . [Kagan] said this is a clear burden on a constitutional right, because religious individuals and groups are barred from competing in an otherwise neutral benefit. 

Prof. Destro: We have to come back to this question of neutrality in public programs. . . . The Court has come a long way since 1947 recognizing that there ought to be equal access to public benefits.

Ms. Fiedorek concluded by noting that “[protection of rights of conscience is] necessary now to preserve that marketplace where we can all participate in and engage without fear that the government’s going to punish us for holding a certain belief,” and Prof. Destro agreed that religious liberty has become equated with bigotry, when in reality it is a fundamental right that should be defended.

President Trump Making Good on Promise to Protect Religious Liberty

After years of being under attack, President Trump signed an executive order today protecting free speech and religious liberty:

Section 1.  Policy.  It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.  The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government.  For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans' first freedom.  Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.  The executive branch will honor and enforce those protections.  

Sec. 2.  Respecting Religious and Political Speech.  All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.  In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.  As used in this section, the term "adverse action" means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.  

Sec. 3.  Conscience Protections with Respect to Preventive-Care Mandate.  The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.   

RNLA has a panel at its National Policy Conference on religious liberty tomorrow that will discuss this executive order.  There is still time to register!