The Trump administration is proposing to rescind federal affirmative-action mandates for government contractors, which judges in the past strangely upheld, finding that those mandates were a permissible (not mandatory) exercise of the federal government’s powers under the Procurement Act. The New Civil Liberties Alliance argues that those affirmative-action mandates were never valid to begin with:
“The New Civil Liberties Alliance submitted comments today supporting the Department of Labor’s proposed rescission of its unconstitutional affirmative action and anti-discrimination compliance system for government contractors. The current system places intense, costly reporting burdens on businesses while exposing them to enforcement risks—all without Congressional authorization. DOL’s Office of Federal Contract Compliance Programs (OFCCP) has run its elaborate enforcement and adjudication apparatus overseeing government contractors and subcontractors for nearly 60 years under President Lyndon Johnson’s Executive Order 11246, which President Trump’s own Executive Order rescinded in January. DOL now cites Trump’s E.O. as its only basis for rescinding E.O. 11246’s implementing regulations….NCLA urges DOL to determine that E.O. 11246 was always constitutionally invalid because Congress never authorized it. This step would clarify contractors’ regulatory reporting responsibilities and enhance the law’s future stability.
Neither the President nor an agency possesses any inherent power to legislate, and Congress never passed a law authorizing E.O. 11246 or the regulations implementing it. So, these executive actions usurped legislative power from Congress, and judicial power to adjudicate regulatory enforcement cases from the courts, violating the vesting clauses in Article I and III of the Constitution. Congress knows how to design and authorize anti-discrimination enforcement regimes, but it did not do so here.
Some recent presidential administrations have suggested that the Federal Property and Administrative Services Act of 1949 authorized E.O. 11246. But any reliance on the so-called Procurement Act as supplying statutory authority for E.O. 11246 is, at best, an unconvincing rationalization after the fact. Moreover, this interpretation comes decades too late to have any convincing insight into the statute’s original meaning. DOL and OFCCP should disclaim any reliance on the Procurement Act and base the rescission on utter lack of statutory authority.
