The Trump administration has devastated the government workforce and the legal protections that guard it. Shortly after entering office, the administration voided collective bargaining agreements made in the waning days of the Biden administration and empowered the Department of Government Efficiency (DOGE) to engage in large-scale force reductions. In July, the administration recategorized thousands of federal policy-making roles as “Schedule G” workers without career employee protections, building on prior efforts to redefine thousands of workers as “Schedule F” employees lacking merit rights. In August, more than 445,000 federal employeeslost union protections as agencies began limiting union contracts for employees in “national security” roles. Over 148,000 federal workersleft their jobs through the first nine months of the Second Trump administration. More are likely to follow. 

The Supreme Court has not only failed to remedy these actions but now appears set to legitimize them. In the Court’s brief Wilcox opinion, it stayed lower court orders reinstating members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) following Trump’s removal of Biden appointees. The Court’s decision rested on a presumption that “both the NLRB and MSPB exercise considerable executive power” — removing the protected, bipartisan status of the two agencies and threatening the complete erosion of agency independence. If, as expected, the Court formally overrules Humphrey’s Executor in Trump v. Slaughter, the Trump administration will gain full control of the internal government agencies that enforce the labor and employment statutes protecting federal workers from arbitrary or partisan actions, including the Merit Systems Protections Board (MSPB) and the Office of Special Counsel (OSC). Humphrey’s demise will not only escalate the precarity of federal employment but also risks politicizing the day-to-day work of government agencies — a threat to rule of law in the United States.  

Yet federal workers are not powerless. Although the Trump administration and the Supreme Court have collectively weakened many federal labor and employment statutes, federal workers retain significant constitutional protections under the First Amendment. These protections are narrow but possess unique advantages. Unlike union and merit protections for federal workers, the First Amendment cannot be stripped from workers through recategorizing their job titles. Unlike statutory protections predominantly enforced by administrative boards and tribunals, First Amendment protections retain a clearer path to federal appeals courts and are less vulnerable to the partisan takeover of federal investigative bodies and labor boards. Where the Roberts’ Court has generally weakened workers’ ability to unionize, the Court, in Janus v. AFSCME and Kennedy v. Bremerton School District, has generally strengthened rights to free expression in the workplace. The First Amendment offers a constitutional shield that other worker protections lack. 

Recent federal union litigation efforts have taken advantage of this constitutional shield. After the Trump administration sent automated out-of-office messages from employee emails blaming Democrats for September’s government shutdown, the AFGE successfully challenged and enjoined the use of employee emails for political speech. In Fell v. Trump, a pending class action suit in DC District Court, employee plaintiffs argue that they were improperly terminated based on “perceived political beliefs” given their ties to antidiscrimination work. Fell further alleges that the Trump administration’s incapacitation of the MSPB interferes with employee rights to challenge their terminations, opening a potential path to direct district court jurisdiction over some federal employment litigation. In two separate cases, AFGE v. Trump and AFGE v. Noem, the AFGE has similarly challenged the mass stripping of union rights from employees engaged in national security work as illegitimate retaliation for the union’s criticism of the Trump administration. Both cases won initial injunctions but continue to face challenges on appeal, with the former injunction overturned in the Ninth Circuit. They are likely to reach the Supreme Court.  

Although the strength of these First Amendment arguments will ultimately depend on the highest court, they rest on substantial judicial precedent. First, under Garcetti and Pickering, government workers retain the right to speak “as citizens” on “matters of public concern” related to their workplaces, including public critiques of a presidential administration’s departures from civil service norms. Rolling back AFGE membership from previously eligible employees suggests impermissible retaliatory action against the union’s speech, as does terminating employees that criticize the administration outside their workplaces. 

Second, under Rutan, federal workers outside policy-making positions are protected from forced political affiliations, forbidding government agencies from hiring, firing, or promoting workers based on ideological or partisan associations. While the Trump administration may redirect resources away from programs it disfavors, such as antidiscrimination efforts, its targeting of employees outside those programs but previously affiliated with them, as Fell and similar cases allege, evinces the use of prior work history as a proxy for partisan beliefs and loyalties. The use of such proxy characteristics for determining layoffs likely violates the rule prescribed in Rutan and runs counter to the First Amendment. 

Third, in Janus, the Roberts Court struck down agency shop agreements in public workplaces under the guise of protecting employees from coerced speech. The coerced speech at issue in Janus — requiring workers unaffiliated with a union to contribute to the costs of their representation — differs from the speech coerced by the second Trump administration — co-opting worker email signatures to spread partisan messages and mandating that workers engage in speech actions that benefit one political party — but the latter is far more coercive than the former. The coercion rejected in Janus as “seriously imping[ing] on First Amendment rights” only required workers to indirectly subsidize an organization’s speech. The Trump administration’s actions go further than coerced subsidization; they force workers to engage in direct political speech themselves. When compelled speech is not justified as part of a worker’s ordinary duties, the compulsion “plainly violates the Constitution”, as noted by the Janus court. 

The First Amendment offers an additional layer of protection for beleaguered federal workers and an additional tool for their lawyers. But the value of that protection extends beyond the employment status of individual government employees. By shielding federal workers from partisan actions and partisan firings, the First Amendment upholds the neutrality of federal agencies and the expectation that, while federal workers will implement the policies of political appointees, they will not use the government’s power to punish political opponents. Free expression may be federal workers’ protection of last resort, but it is citizens’ first protection in the Constitution.