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Would an Executive Order Banning Discrimination on Basis of Sexual Orientation Be Constitutional?

By Wilson Huhn Published: May 8, 2012

Gay rights groups have strongly criticized President Obama for refusing to issue an Executive Order banning employment discrimination on the basis of sexual orientation by federal contractors. In my opinion, the President could issue an order prohibiting government agencies from discriminating on the basis of sexual orientation. However, I believe that the President lacks the authority to prohibit discriminatory action by private businesses that are under contract with the government.

On September 24, 1965, President Lyndon Johnson issued Executive Order 11246 prohibiting discrimination on the basis of race, gender, or religion by any agencies of the federal government as well as any companies doing business with the federal government. Gay rights advocates have encouraged President Barack Obama to broaden Order 11246 to add sexual orientation to the list, thus prohibiting companies receiving federal funding from discriminating against gays and lesbians.

On January 13, 2012, the Williams Institute confidentially released this report describing the likely effects of such an order and briefly analyzing its legality and constitutionality. The Williams Institute strongly favors the issuance of an order prohibiting employment discrimination by government contractors.

I agree with the Institute on moral grounds, but I reluctantly conclude that the President lacks the lawful authority to issue an order that would regulate the conduct of private employers. At most, I believe, the President could order government agencies themselves not to discriminate on the basis of sexual orientation in either employment or contracting. However, even if the order were thus limited to government agencies, the President could not order agencies to treat the spouses and domestic partners of government employees as if they were lawfully married, because this would directly violate the federal Defense of Marriage Act.

Here is the key language in the January 13 report of the Williams Institute:

   "The president has the statutory authority to issue an executive order that broadens existing nondiscrimination requirements for federal contractors.
   It is well within the president’s legal authority to issue either an amended or a new executive order to require that federal contractors not discriminate based on sexual orientation and gender identity. Further, courts are generally reluctant to overturn executive orders. The Supreme Court has only overturned two executive orders, and neither involved nondiscrimination requirements. Lower courts have repeatedly upheld executive orders prohibiting discrimination by federal contractors. However, the lack of Supreme
   Court precedent on the constitutionality of nondiscrimination executive orders, as well as the lack of recent case law affirming the constitutionality of such orders, adds a modicum of uncertainty to the legal analysis. If a contractor were to challenge the proposed executive order, courts would most likely use two tests to determine whether the president had authority to issue it: (1) the “economy and efficiency” test; and (2) the conflicts test.
   First, the Federal Property and Administrative Services Act (1949) gives the president broad authority to prescribe policies and directives relating to the federal government’s role in the acquisition of goods and services, so long as there is a sufficiently close tie between the executive order and the “economy and efficiency” of the procurement process. Generally, courts leniently apply the economy and efficiency test to executive orders, giving significant deference to the president. However, some courts apply the test more strictly and require a direct link between the terms of an executive order and the goals of economy and efficiency in government procurement. As described in this memo, inclusive nondiscrimination and benefits policies optimize the economy and efficiency of procurement, and an executive order requiring either should withstand legal scrutiny.
   Second, courts would determine whether the executive order explicitly or implicitly conflicts with any other federal laws. It might be argued that potential conflicts exist with current ENDA legislation related to disparate impact claims, numerical affirmative action goals, and data collection, all of which are prohibited in ENDA as currently drafted, but could be potentially included in an executive order. However, the president’s executive order does not need to include any of these provisions, and even if they are included, conflict issues can be addressed, in part, with changes to future versions of ENDA. If benefits are included in the executive order, it could be argued that this provision may conflict with the Defense of Marriage Act (DOMA), the Employee Retirement Income Security Act (ERISA), and possibly some sections of the Patient Protection and Affordable Care Act of 2010. Legal challenges based on these arguments, however, are not particularly strong because, among other reasons, an employee’s life partner can be recognized without reference to marriage (as the president’s memoranda on employee benefits have recognized), and the contracting power need not implicate ERISA."


The authors of the Williams Institute report betray some anxiety about the constitutionality of issuing an Executive Order. They admit that it might call the constitutionality of Executive Order 11246 into question:


   "However, inclusion of these new characteristics could result in a legal challenge that attacks the entirety of EO 11246. ... Issuing a new executive order with similar language to EO 11246 would avoid the potential for a case challenging these new provisions that could possibly undermine the existing order."

Whether the President has the authority to prohibit employment discrimination against gays and lesbians by government contractors presents a question under the doctrine of Separation of Powers. The standard for evaluating the constitutionality of Executive Orders was set forth in the foundation Separation of Powers case Youngstown Sheet & Tube Co. v. Sawyer. In that case the Supreme Court struck down an Executive Order issued by Harry Truman in which he ordered the steel mills to be kept open despite a strike and a lockout. The Korean War was raging, and Truman contended that it was necessary to keep the factories open to support the war effort. Truman issued the order under his authority as Chief Executive and Commander-In-Chief.

Three renowned justices delivered opinions in that case: Hugo Black, Robert Jackson, and Felix Frankfurter. Each of them had been appointed by Franklin Roosevelt and would be politically inclined to support President Truman. But each of them found that the President had exceeded his power.

Each gave a different reason in support of the Court's decision. Black contended that in issuing the Executive Order the President had engaged in lawmaking in violation of his assigned power under the Constitution. Black stated:


   "The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control."


Justice Jackson on this occasion developed his famous "tripartite" theory of Congressional and Presidential power. According to Jackson, Presidential power varies depending upon the extent to which Congress has authorized the President to act:

   "The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
   1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
   2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
   3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."


Jackson found that President Truman's seizure of the steel industry had not been authorized by Congress; that in fact Congress had considered and rejected granting this power to the President in the event of a labor stoppage. Accordingly, the President's power in this context was at its "lowest ebb." Like Justice Black, Jackson found the President's action to be unconstitutional.

Justice Frankfurter added another test for determining whether or not the President has the power to undertake action that the Congress has not specifically authorized by law - a tradition test:


   "To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by 1 of Art. II."


Applying this test, Frankfurter was unable to discover a "systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned" similar to Truman's action in taking control of the country's steel mills to keep them operating. He too voted to strike down the Executive Order.

Would an amendment to Executive Order 11246 adding sexual orientation to the list of prohibited categories of discrimination be constitutional?

The President could certainly issue an order regulating the conduct of the government agencies themselves. The President would be justified in acting to enforce the Equal Protection of the Fifth Amendment, which arguably (in my opinion, almost certainly) would prohibit the government from arbitrarily treating gay and lesbian job applicants and employees differently than heterosexuals. However, the Fifth Amendment does not apply to private companies - not even to private companies that are under contract to the government. Merely entering into a public contract or receiving public funding does not constitute "state action" subject to constitutional restraint.

Accordingly, it would be necessary to apply the three tests from Youngstown Sheet & Tube to determine whether such an order would be constitutional.

Under Justice Black's test an Executive Order prohibiting discrimination by government contractors on the basis of sexual orientation would be clearly unconstitutional. According to Black, such an order would be "policymaking," a "legislative act" that is committed solely to Congress, not the President.

Under Jackson's test the Executive Order would also be of doubtful constitutionality. Congress has considered enacting ENDA (the Employment Non-Discrimination Act) many times and has failed to do so. Like Truman's order seizing the steel mills, an order prohibiting employment discrimination on the basis of sexual orientation would be in the third category of Congressional "disapproval" and would be presumed unconstitutional unless the Constitution disabled the Congress from legislating on this subject and instead vested the power to issue this order solely in the President. That, of course, is not the case. Jackson, too, would conclude that the non-discrimination order was unconstitutional.

Only Justice Frankfurter's opinion would offer substantial support for a Presidential order decreeing an end to employment discrimination by government contractors on the basis of sexual orientation. Executive Order 11246 is nearly 50 years old, and previous executive orders dating back to the Roosevelt administration addressed discrimination by government contractors. The courts might very well uphold a similar executive order or an expansion of 11246 based upon this "systematic, unbroken practice" stretching back seven decades.

But it is not at all a sure thing. Roosevelt's order banning discrimination on the basis of race was issued during World War II when it was necessary to eliminate all forms of employment discrimination that might interfere with the war effort. Furthermore, Roosevelt's and Kennedy's orders were essentially ratified when Congress enacted the 1964 Civil Rights Act which provides substantial statutory authority for Johnson's Executive Order 11246.

The "King's Cure" for employment discrimination against gays and lesbians is not an Executive Order but rather a duly enacted statute. An Executive Order to this effect would almost certainly face a determined legal challenge - a challenge that might very well be successful.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.
 

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