Scapegoating and Stereotyping: The Executive's Power over Federal Contractors.

AuthorRachow, Leah C.
  1. INTRODUCTION 529 II. THE EXECUTIVE'S AUTHORITY OVER FEDERAL CONTRACTOR AGREEMENTS 531 A. The Lead Up to EO 13,950 531 B. The President's Authority under FPASA 532 C. History of Executive Orders Impacting Federal Contractors 532 D. The Bounds of Executive Authority over Federal Contract 533 Agreements E. A Boundless Power over Federal Contractors 537 F. What Does Trump's EO 13,950 Require of Federal Contractors? 538 III. ANALYSIS 539 A. The Sufficiently Close Nexus Test 539 B. Comparison of EO 13,950 to Past EOs 540 C. Is the Connection Between DEI training and Government Procurement too Attenuated? 541 D. Does EO 13,950 Violate First Amendment Protections? 542 E. EO 13,950's Chilling Effect 543 IV. RECOMMENDATION 544 A. Future Courts Need to Follow the Fourth Circuit's Lead and Apply a Stricter Analysis 544 B. Congress Should Revisit FPASA and its Grant of Authority to 545 the President C. EO 13,950 Stifled Conversations on Race and Sex 546 V. CONCLUSION 547 I. INTRODUCTION

    On September 22, 2020, former President Donald Trump released Executive Order 13,950, titled Combatting Race and Sex Stereotyping. (1) In its Purpose section, Executive Order ("EO") 13,950 declared that a "destructive ideology" premised on America being "an irredeemably racist and sexist country" is threatening the country and its institutions. (2) The Eo contrasted this ideology with what it considered the fundamental values of our country: that all individuals are created equal and should be given an equal opportunity to pursue happiness and prosper (based on individual merit, however). (3) It emphasized that the Federal civil service system itself is based upon merit principles, and that the men and women who serve this country should not be taught "the lie that the country for which they are willing to die is fundamentally racist"--a sentiment former President Trump asserted was the central theme of critical race theory. (4)

    In regard to federal contractors, it claimed that such teachings promote division and inefficiency by increasing workplace animosity that distracts from pursuing excellence and collaboration. (5) Likewise, it mentioned that such blame-focused diversity training can actually reinforce biases and potentially decrease opportunities for minorities in the workplace. (6) Overall, the EO disallowed race or sex stereotyping or scapegoating from being promoted in the Federal workforce and Uniformed Services or by Federal contractors. (7) While President Joe Biden revoked EO 13,950 his first day in office, (8) the question remains whether the executive has the authority to pass such an order affecting diversity trainings conducted by federal contractors.

    To analyze whether such an order was legal, Part II of this Note details the Executive's authority over federal contractors under the Federal Property and Administrative Services Act (FPASA). First, it details the lead up to former President Trump passing EO 13,950. Second, it describes the grant of authority within FPASA and the orders issued pursuant to this authority. Third, it details the cases dealing with these executive orders. Fourth, it describes the requirements placed on federal contractors by the FPASA.

    Part III begins by summarizing the sufficiently close nexus test from the included case law and shows how an application of this test to Trump's order would likely render EO 13,950 valid. It also highlights the controversy the order has created. Part IV recommends that courts apply a stricter analysis of orders issued under FPASA and that Congress revisit this grant of authority. (9)

  2. THE EXECUTIVE'S AUTHORITY OVER FEDERAL CONTRACTOR AGREEMENTS

    1. The Lead Up to EO 13,950

      Trump allegedly released this order in response to Christopher F. Rufo's claim that Sandia National Laboratories, a federal nuclear research lab, held a "re-education camp" for white males to expose their white privilege and deconstruct their white male culture. (10) Rufo later appeared on Tucker Carlson Tonight, describing his investigations into diversity trainings conducted by the FBI and Treasury Department. (11) He called on then-President Trump to issue an executive order banning critical race theory in the federal government. (12)

      Before Trump released an order, Russell Vought, director of the Office of Management and Budget, released a memorandum directing federal agencies to begin evaluating their training for any critical race theory teachings. (13) Trump then began to tweet about critical race theory (14) as "a sickness that cannot be allowed to continue." (15) While hosting the White House Conference on American History, Trump further criticized critical race theory and The 1619 Project. (16) Five days later, the administration released EO 13,950. (17)

    2. The President's Authority under FPASA

      The Federal Property and Administrative Services Act (FPASA) was created in response to the procurement and property management issues the government experienced during World War II. (18) Section 101 of FPASA states the purpose of the Act is "to provide the Federal Government with an economical and efficient system for... [p]rocuring and supplying property and nonpersonal services, and performing related functions including contracting...." (19) Section 121(a) gives the president the authority to issue policies and directives considered necessary to carry out FPASA; these policies must be consistent with the stated goals of FPASA. (20)

    3. History of Executive Orders Impacting Federal Contractors

      Trump is not the first president to issue an EO affecting federal contractors for societal impact, and he will certainly not be the last. (21) In 1961, President Kennedy issued EO 10,925, establishing the Equal Employment Opportunity Committee. (22) This order required all government contractors to agree to not discriminate against any employee or applicant based on race, creed, color, or national origin. (23) The order was then superseded in 1965 by President Lyndon Johnson's EO 11,246. (24) President Johnson's order imposed the same requirements on federal contractors already imposed by EO 10,925; (25) however, it charged the Secretary of Labor rather than a presidential committee with administering the order. (26) As amended over the years, EO 11,246 now protects employees of federal contractors from discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. (27)

      President Carter's EO 12,092 furnishes a similar example. It was issued "to encourage noninflationary pay and price behavior by private industry and labor. " (28) Such wage and price standards had to be included in all contracts with federal contractors. (29) Likewise, President Clinton issued EO 12,954, which prevented contracting agencies from contracting with employers who permanently replaced lawfully striking employees. (30)

      President George W. Bush later issued a series of EOs affecting federal contractors. EO 13,201 required all government contracting departments to include contract provisions requiring employers to post a notice to their employees regarding their right to not pay labor union dues for activities unrelated to representational activity. (31) Bush's EO 13,202 provided that the government would neither prohibit nor deny federal contractors from entering project agreements with labor unions. (32) Lastly, EO 13,465, which amended EO 12,989, directed all government contracting departments to only enter contracts with employers who used an electronic verification system to confirm the employment eligibility of their employees in the United States. (33)

      All of the above orders affected federal contractors and the provisions included within their contracts with the federal government. Many also threatened potential cancellation of a contract or debarment from future government contracting if the provisions were not followed. (34)

    4. The Bounds of Executive Authority over Federal Contract Agreements

      These EOs were not without their own legal disputes; each one was challenged in court, with most of them being upheld as a valid exercise of the executive's authority. (35) Farmer v. Philadelphia Electric Co. and Farkas v. Texas Instrument, Inc. both dealt with EO 10,925. (36) In Farmer--while the case centered on whether the EO created a right of action for the employee-plaintiff--the Third Circuit had "no doubt that the applicable executive orders and regulations have the force of law" under Congress's delegation of authority to the executive through FPASA. (37) However, other courts considered this statement dictum since the plaintiff did not raise the issue of whether the executive had the authority to issue EO 10,925. (38) Similarly, in Farkas, the Fifth Circuit noted that while the validity of EO 10,925 was not challenged, the order was issued pursuant to FPASA and thus had the force and effect of law. (39)

      In Contractors Association of Eastern Pennsylvania v. Secretary of Labor, contractor plaintiffs challenged the validity of the "Philadelphia Plan," which the Secretary of Labor instituted pursuant to EO 11,246, (40) requiring specified ranges of minority hires for a federally funded construction project. (41) The Third Circuit upheld the Philadelphia Plan under a Youngstown analysis; (42) it decided that the plan fell under the first category of EOs since Congress had delegated authority for implementing a federally funded project to the executive. (43) While the court noted that the President has "implied contracting authority," (44) it also stated that the plan fell within the executive's FPASA authority. (45)

      On the other hand, the Fifth Circuit held that the President could not prohibit a bona fide seniority system under EO 11,246, since Congress had specifically exempted such systems from Title VII. (46) Likewise, the D.C. Circuit found "it highly unlikely that Congress would have impliedly approved executive interference with the same bona fide...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT