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On January 17, 2025, three days before the presidency changed hands, the American Federation of Government Employees signed a new agreement with the Department of Education. The agreement was negotiated in the usual course and in accordance with a federal statute. But it still caused a stir on Capitol Hill. In a letter to the union, Representative James Comer lamented the agreement’s terms, which extended the prior administration’s telework policies. He criticized those terms as a last-ditch effort to “Trump-proof” the executive branch.

But to some, the idea of “Trump-proofing” the executive branch was a contradiction in terms. In recent years, a growing number of judges and scholars have coalesced around the “unitary executive” theory—the idea that all executive power lies with the president. The theory assumes that the president has a personal responsibility to manage the executive branch. He alone is empowered to “take Care that the laws be faithfully executed.” So in that view, it makes no sense to protect the executive branch from the president. The president is, for all intents and purposes, the executive branch personified.

Given that theory’s growing popularity, it was no surprise that some objected to the last-minute union agreement. But taken to its logical conclusion, the theory would affect more than just one agreement; it would undermine the very idea of collective bargaining in the executive branch. Collective bargaining is ultimately about control; it is designed to rebalance power between management and labor. And when all power is constitutionally vested in management—here, the president—any rebalancing is constitutionally suspect.

This tension isn’t new. It has been around for decades—at least as long as executive employees have had a statutory right to bargain. But the new administration has shown itself willing to challenge settled ideas. It has already thrown off many external brakes, often citing the unitary executive theory. Collective bargaining could very well be next.

Tying the President’s Hands

The unitary-executive theory isn’t new. It stems from Article II, section 1 of the U.S. Constitution. Section 1 says that “the executive Power shall be vested in a President of the United States of America.” By using the definite article—“the”—section 1 suggests that executive power is a single thing. Whatever executive power is, there’s only one of it. And that one, indivisible thing is vested in the president alone.

This linguistic point is as old as the Constitution. But it gained new currency in the 1980s, when the Reagan administration began to question certain limits on executive power. After Watergate, Congress had moved to rein in the president’s discretion. It created fixed terms in office for some officials, including the FBI director, to limit the president’s influence. It also established new inspectors general, who were supposed to monitor executive agencies from within. And it established new civil-service protections, including stronger protections from politically motivated firings.

But not everyone thought those limits were constitutional. Among the skeptics was Edwin Meese III. Appointed as attorney general in 1984, Meese took a robust view of executive power. He argued that the Constitution divided power cleanly among the three branches. Just as all legislative power belonged to Congress, and all judicial power belonged to the courts, all executive power belonged to the president. Power was not shared, but divided. In each of the branches, it was “unitary.” So any efforts by the other branches to limit the president’s executive authority were suspect, if not unconstitutional.

That theory had obvious implications for federal personnel policy. If the president had exclusive power over the executive branch, it followed that he had exclusive power over executive officials. He had to be able to give those officials orders to carry out his policies. And if necessary, he had to be able to remove them from office.

Until recently, the debate around that idea has centered on agency heads. Many “independent” agency heads have been insulated from control by statutory removal protections. But over time, the Supreme Court has pared those protections back. The Court has reasoned that the president can do his job only if he can control the people who work for him. And his most direct means of control is the threat of removal. So at least in most cases, he has to be able to fire agency heads at will. 

But that logic applies to more than just agency heads; it applies to the entire executive workforce. After all, it’s not agency heads who carry out the president’s policies day to day. Agency heads don’t issue citations, approve patents, or dole out benefits. That work is done by front-line employees. Those employees effectively run the executive branch. And today, many of them enjoy a similar buffer against presidential control: collective-bargaining agreements.

Bargaining for Power

Collective bargaining in the executive branch is relatively new. In fact, for most of the country’s history, it was unthinkable. In the 1930s, President Franklin Delano Roosevelt argued that union membership was incompatible with public service. And decades later, the then-president of the AFL-CIO, George Meany, said that it was “impossible to bargain with the government.” But by mid-century, the lack of federal bargaining rights had started to seem anachronistic, even hypocritical. After all, Congress had long since given those rights to private-sector employees. So in 1962, President John F. Kennedy signed an executive order extending bargaining rights to executive-branch employees. For the first time, those employees would bargain collectively with the government.  

For the next decade and a half, collective bargaining remained the product of executive policy. Though bargaining rights were extended and strengthened by later presidents, they still depended on presidential consent. But in the late 1970s, Congress locked in collective bargaining by statute. In Title VII of the Civil Service Reform Act of 1978, it gave executive employees many of the same bargaining rights as private-sector workers. From then on, executive employees would have a statutory right to organize, join unions, and bargain collectively over their working conditions. They would also have new job protection through contractual grievance procedures. They wouldn’t be able to bargain over some conditions; conditions set by some other statute were still off the table. But otherwise, they would have an equal voice over their own terms of work.

Throwing Off the Chains

That division of power sits uneasily beside the unitary-executive theory. The theory is sometimes misunderstood as being only about the power to remove federal officials. That’s probably because removal is the theory’s most litigated aspect. But in fact, removal is only one application of the broader principle. The principle isn’t about firing executive officials; it’s about controlling the executive branch. And collective bargaining limits executive control just as much as any limit on removal. Among other things, collective bargaining prevents the president from unilaterally implementing his preferred management strategies. He can’t just order employees back into the office full time. Nor can he implement other efficiency-promoting measures. Instead, he must negotiate these measures—a process that can take years and cost millions of taxpayer dollars.

The Department of Education agreement is hardly the only example. It stands out because it was signed on the eve of a transition; it was an obvious attempt by one administration to tie down the next. But the federal government has thousands of similar contracts across its vast workforce. Each of those contracts limits the president’s discretion in the same way. They may not have been signed three days before the turnover, but they still tie the president’s hands. They are a check on his control over the executive branch—a check imposed by Congress.

Whether that check is valid remains to be seen. The new administration has already set up a test. In late January, the president repudiated the Department of Education contract, as well as other “lame duck” agreements. He argued that one administration could not limit another’s control over the federal workforce. And if that’s true, it’s true not only for contracts signed in the waning days of the administration. It’s also true for every collective-bargaining agreement in the executive branch. Each one of those agreements is the product of an external brake on the president’s control. So each one of them raises the same questions about the president’s “unitary” authority.

This administration has shown itself willing to test the limits on external controls. One suspects that collective bargaining could be next on its list.