Magazine article The American Prospect

The Power to Act: There Is Well-Established Legal Authority for Much Stronger Presidential Action to Promote Good Jobs

Magazine article The American Prospect

The Power to Act: There Is Well-Established Legal Authority for Much Stronger Presidential Action to Promote Good Jobs

Article excerpt

The Employee Free Choice Act is a low priority for the White House and Congress. Legislation mandating a minimum number of paid sick days for all workers couldn't even get congressional action when the country was facing the public-health scares of the H1N1 virus. And bills to curb the practice of misclassifying employees as independent contractors are at the earliest stages of the legislative process.

Does this mean labor rights are doomed by gridlock? Not at all.

The President's Contracting Power. Since the days of Franklin D. Roosevelt, presidents have used their executive power to sign orders aimed at strengthening working conditions for all employees of businesses receiving federal contracts. Roosevelt was the first to sign an order prohibiting defense contractors from discriminating on the basis of race in their workforce.

The authority for presidential executive orders was addressed by the courts only in 1952 when the Supreme Court struck down President Harry Truman's executive order in which he seized the country's steel mills to avoid a threatened strike in the midst of the Korean War. In Youngstown Sheet & Tube Co. v. Sawyer, the Court held that Truman had no authority to seize the mills and instructed that the president's authority to issue an order "must stem from an act of Congress or from the Constitution itself."

The Youngstown opinion did not prohibit the president from using his executive authority to require labor standards in federal contracting. In fact, it made clear that the president may gain his executive authority through an act of Congress-authority the Congress had already conveyed on the president with regard to federal contracting.

In 1949, Congress had passed the Federal Property and Administrative Services Act, commonly known as the Procurement Act, authorizing the president and his subordinates to purchase goods and services for the executive branch. This statute provided the necessary delegated authority to allow the president to condition the receipt of federal contracts on certain requirements, including conditions related to improved labor and employment standards in the workplace. The Procurement Act authorizes the president to adopt procurement policies and directives that provide for an "economic and efficient" procurement system, and thus any conditions ordered by the president must meet that test.

Contracting Requirements Affecting All Workers. Presidents from both parties have used this power extensively to affect all workers employed by federal contractors. Lyndon B. Johnson, expanding the work started by FDR, signed Executive Order 11246 prohibiting discrimination and requiring affirmative action to assure representation of underrepresented minorities in the workforces of businesses receiving federal contracts (the order was later amended to add women). This order required explicit goals and timetables for progress in employing minorities, as well as a nominal end to racial discrimination and exclusion. Aiming to curb inflation, Jimmy Carter issued Executive Order 12092 requiring all federal contractors to agree to abide by certain wage and price controls in order to receive a federal contract. Both Bill Clinton and George W. Bush issued executive orders related to the employment of undocumented workers. Clinton was the first president to prohibit the practice. Bush then required that federal contractors use an electronic employment-verification system to ensure the legal status of their workers.

Each of these executive orders has been challenged, and all have been upheld on the ground that the president has broad authority to place conditions on federal contracts in furtherance of his duty to promote an economic and efficient procurement system. The most helpful guidance in evaluating the legality of such orders can be found in the 1979 D.C. Circuit opinion of AFL-CIO v. Kahn. In Kahn, the court upheld Carter's Executive Order 12092 aimed at curbing inflation. …

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