President Obama’s decision to sign an Executive Order banning discrimination based on sexual orientation and gender identity by federal contractors is a significant step towards a broader ban than only Congress can establish. As the President noted, Congress has failed to do just that … for decades … and unless voters turn out in massive numbers this fall to cast votes reflecting their anger at Republican lawmakers, it will be a while before the Legislative Branch catches up with the Obama Executive Branch.
Some supporters of the Employment Non-Discrimination Act (ENDA) may fault Obama for some perceived weakness in the Order. And needless to say, opponents of ENDA, including virtually the entire Republican Caucus in the House and Senate as well as their “pro-family” activists around the country who fundraise on their bigotry, will huff and puff about misuse of Executive authority. Expect Speaker John Boehner to issue an addendum to his recent (and absurd) taxpayer-funded lawsuit against President Obama for … doing his job (and, not incidentally, doing the job Republicans in Congress are spectacularly failing to do).
Here are a few observations about the Obama decision:
Most important, of course, is that blatant discrimination in employment by those profiting from federal contracts will be prohibited. It seems difficult to believe, 60 years after Brown v. Board of Education, and 50 years after the signing of the Civil Right Act, that employers are still free to fire (or not hire) qualified men and women because they don’t approve of their private and personal behavior. The President’s action today should not be surprising to anyone. As he noted in his 2013 Inaugural, “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law.” Republicans may not like the fact that the President acted, but they can’t pretend they were not on notice that eventually, he would counteract their inaction and indifference.
In addition, the Executive Order is noteworthy as another illustration of Obama’s newfound willingness to employ Executive authority when Congress fails to act on urgent priorities. As with his initiatives under the Affordable Care Act, the No Child Left Behind Act, and his DREAM initiative under current immigration law, the President is doing what he promised he would do in the 2013 State of the Union message: not allow Republicans to continue to pour sand into the gears of government, complain the transmission doesn’t work, and refuse to take it to the shop to get it repaired. Eventually, Speaker Boehner’s loony lawsuit against presidential initiatives will be heard in a court and thrown out, probably long after Barack Obama is golfing in Hawaii as the former President, but in the meantime, Obama seems intent to utilize the authority Congress regularly gives to presidents to issue regulations to enforce laws, often because legislators don’t want to make the tough implementation decisions.
Obama’s action is also noteworthy because the Order illustrates something which I observed while working with the White House, but which is often overlooked, and that is Obama’s obduracy. True, his willingness to engage in extended and often counterproductive negotiations with implacable enemies can be exasperating, and he should have developed more effective strategies for dealing with GOP nihilism some time ago. But contrary to the popular notion, including among many Democrats, Obama is no pushover. I saw that during the health care negotiations in 2009, after Ted Kennedy’s death cost us our 60 vote majority in the Senate. Some in the White House and Congress argued for abandoning the broad coverage of the proposed law – perhaps limiting it to children (what Speaker Nancy Pelosi derisively termed the “namby panby” option). The popular lore is that Obama waivered and considered diluting the proposed bill to secure passage, but at least from my vantage point, and it was a pretty good one at the time, Obama was dug in and never vacillated. Similarly, he rejected those who argued, in the wake of the Hobby Lobby decision, for a religious cutout from the new Executive Order on contracting. Obama knows his decision to keep the Order broad will result in a court challenge, but he also knows that even a weaker Order would have similarly been challenged, and he rejected the “namby pamby” approach once again.
Still, some will second-guess the precise language and scope of the Executive Order, and predictably, their criticism will be aimed at Obama and liberal Democrats whom they demand approve a tougher policy. We have seen the same syndrome among climate change activists, for example. Obama seemed to recognize this inevitability, noting “I’m going to do what I can with the authority I have to act [and] the rest of you, of course, need to keep putting pressure on Congress.” That doesn’t mean pressuring Pelosi and other ENDA backers to pass legislation they don’t have the votes to pass. It means doing the hard work of organizing the electorate and motivating turnout to punish those who prevent broader policies from being debate. Criticizing Democratic leaders in Congress is a pointless act of political self-indulgence. When progressive voters are organized and vote, the culture in Washington and the work product on Capitol Hill will become more sympathetic. Standing back and clucking that the current effort is insufficient does not contribute to greater success, which will remain elusive until the caucus of progressives is substantially increased. That work needs to be done in the communities of America (which, incidentally, agree with anti-discrimination policies).
There is one area of caution worth noting. As one who spent nearly 40 years working in the Congress – the first branch of government under the Constitution – I am predictably wary of the potential for the resurrection of the Imperial Presidency. Among the most important congressional reforms of the 1970s were those constraining the President from the unfettered exercise of authority that distorted the balance of power that is, for better or worse, the cornerstone of our constitutional system. Angered by the heavy handedness of Lyndon Johnson on foreign policy and Richard Nixon both internationally and with respect to budget and impoundment over-reach, Congress on a bipartisan basis enacted important steps to constrain an over-eager White House and re-inject itself into critical decision-making. Caution is needed to ensure that, in the desire to facilitate policy initiatives, the proper role of the Congress is not undermined by a White House that can inevitably move more quickly and decisively than a diverse legislative body. However, until Congress proves that it can move at all, its members are hard-pressed to chastise the President for employing the powers he has been given both by the Constitution and by statutes approved by the Congress.