White House Whopper on ENDA Executive Order

[Shana A]

White House Whopper on ENDA Executive Order

Filed By Dr. Jillian T. Weiss | April 13, 2012 10:00 AM

http://www.bilerico.com/2012/04/white_house_whopper_on_enda_executive_order.php

The White House is now saying that the reason they're not signing the ENDA Executive Order is because they are passionately and fiercely dedicated to passage of a much more comprehensive LGBT rights bill -- the Employment Non-Discrimination Act.

White House spokesperson Jay Carney said this yesterday:

    And I think, again, the approach that we took in bringing about the repeal -- working with Congress to bring about the repeal of "don't ask, don't tell" is instructive here. And as it did then, our approach to this piece of legislation demonstrates the President's very firm and strong commitment to non-discrimination and to securing equal rights for all Americans...We are, however -- in another demonstration of the President's firm commitment to securing equal rights for the LGBT community -- aggressively pursuing passage of ENDA."

What?! Someone's pants are on fire, and they're not mine.

[tekla]

EOs are in general a bad idea, it's the job of Congress to pass legislation, fire them.

[Jamie D]

EOs are in general a bad idea, it's the job of Congress to pass legislation, fire them.

Tekla is on the right track.

And an Executive Order that "legislates" is also unconstitutional.  EOs must implement existing legislation.
Youngstown Sheet & Tube Co. et al. v. Sawyer.

[tekla]

Most likely a real lawyer would call that 'wrong on the law and wrong on the facts'.  EDNA could easily be argued to enhance previously existing anti-discrimination legislation, it's only creating new categories (administrate law) not creating  new legislation.  And even harder as the Youngtown case would have it, there is no defiance of Congressional orders, as none are existing.

Still, no one is going to do much of anything until after the election.  Except Meh Romney, who still has 6 months to finish taking every side of every issue.  I'm sure he was for EDNA before he was against it.

[Jamie D]

In an announcement that should surprise no one, White House senior advisor Valerie Jarrett told representatives from gay-advocacy groups yesterday that the President would not be signing an executive order on LGBT non-discrimination for federal contractors anytime soon.

"While it is not our usual practice to discuss executive orders that may or may not be under consideration, we do not expect that an executive order on LGBT non-discrimination for federal contractors will be issued at this time. We support legislation that has been introduced and we will continue to work with congressional sponsors to build support for it," she told members of the Center for American Progress, Freedom to Work, HRC and the National Gay and Lesbian Task Force.

- Dan Avery, Invisible Ink, Queerty, 4-12-12

There are only two rationale explanations why Mr. Obama does not issue such an order:
1.  It would be a bad political move, suggesting he puts re-election expediency ahead of any sense of loyalty to a key special interest; or,

2.  The courts would bitchslap such an unconstitutional EO in no time flat.

Take your pick.

[tekla]

1. I though it was a good thing not to cater to special interests, even if they are ones on your side.  Second, its' not going to do this 'key constituency' (which is pretty much BS, they don't have that much voting power, particularly in the areas that are going to matter) if he were to implement this only to lose the election to a muli-billionaire who is a leader in an extremely right wing sexist/racist pseudo-Christian cult who would overturn it as one of his first acts.  Much better to try to win the election and hope the anti-Romney effect pulls down the down ticket.

2. That would take years, at best.

[Jamie D]

Most likely a real lawyer would call that 'wrong on the law and wrong on the facts'.  EDNA could easily be argued to enhance previously existing anti-discrimination legislation, it's only creating new categories (administrate law) not creating  new legislation.  And even harder as the Youngtown case would have it, there is no defiance of Congressional orders, as none are existing.

Still, no one is going to do much of anything until after the election.  Except Meh Romney, who still has 6 months to finish taking every side of every issue.  I'm sure he was for EDNA before he was against it.

We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. The mill owners argue that the President's order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President....

The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure.

- Justice Black for the majority in Youngstown Steel

The argument that an executive order is valid unless it violates a congressional mandate is specious.  The President may not act without a legislative foundation.  In the case of the proposed ENDA, none exists.

[tekla]

The legislative foundation is the long history of non-discrimination laws.  All EDNA does is add a couple more classes.  It creates no new law, but rides on a pretty thoroughly adjudicated foundation.  It sure does not involve any 'taking' or 'seizing' of property by the federal government as Youngstown did and which is what the Youngstown case is based on. Black wrote: There is no statute that expressly authorizes the President to take possession of property as he did here.  And, the facts in that case is that Truman should have evoked Taft-Hartley (which he didn't because he hated it and saw the steel producers and not the unions as the problem), as opposed to using a law (Selective Service) that had no such provisions.

[Jamie D]

The legislative foundation is the long history of non-discrimination laws.  All EDNA does is add a couple more classes.  It creates no new law, but rides on a pretty thoroughly adjudicated foundation.  It sure does not involve any 'taking' or 'seizing' of property by the federal government as Youngstown did and which is what the Youngstown case is based on. Black wrote: There is no statute that expressly authorizes the President to take possession of property as he did here.  And, the facts in that case is that Truman should have evoked Taft-Hartley (which he didn't because he hated it and saw the steel producers and not the unions as the problem), as opposed to using a law (Selective Service) that had no such provisions.

The problem is thatthe creation of new "classes" is not a presidential prerogative.  It is wholly legislative.

Justice Jackson, in his Youngstown concurrence gave a classic, broad overview to thelimits on presidential powers:

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.

(footnotes omitted)

Were Obama to issue an executive order to "enact" a law that repeatedly failed to pass congressional muster, he would place himself squarely in Jackson's third category.

In my opinion, and certainly in the opinion of like-minded libertarians, such an order would be viewed as dictatorial.