The National Treasury Employees Union (NTEU) filed a lawsuit Monday in the US District Court for the District of Columbia to enjoin the Trump administration’s recent executive order weakening job protections for career federal employees.

In the complaint, the union requests declaratory and injunctive relief. The order, “Creating Schedule F in the Excepted Service,” was signed last week. It gives agency heads the authority to reclassify certain confidential, policy-making, determining or advocating positions from the career competitive service to a new class, Schedule F. Agency heads could hire and fire Schedule F employees at will. Existing career federal positions would be covered by the order. The union’s complaint opens by declaring that the order “will strip civil service and due process protections from a large swath of federal employees.”

The complaint’s legal argument is that the order exceeds presidential authority. NTEU cites Youngstown Sheet & Tube Co. v. Sawyer, an oft-invoked 1952 Supreme Court decision that explained how presidential power can fall into three categories: the president’s authority is greatest when supported by Congress, middling when Congress is silent, and at its ebb when going against the will of Congress. This executive order, the complaint says, is “a textbook example of the president acting contrary to Congress’s express and limited delegation of authority to the president.”

Congress’s express delegation here takes the form of 5 USC § 3302, which says that the president may only except positions from the competitive service when “necessary” and “as conditions of good administration warrant.”
The complaint argues that “the president’s sweeping order fails to make a meaningful showing that shifting large numbers of federal employees into a new excepted service category so that they can be fired more quickly and without cause is necessary or supported by good administration principles.”