In 1941, under pressure from Brotherhood of Sleeping Car Porters union president A. Philip Randolph and a burgeoning civil rights movement, President Franklin Delano Roosevelt issued Executive Order 8802, which required that defense contracts include provisions to bar private contractors from discriminating on the basis of race, creed, color or national origin. The order also established the President’s Committee on Fair Employment Practice, which was empowered to investigate discrimination cases and “to take appropriate steps to redress grievances which it finds to be valid.”
In 1943, President Roosevelt issued Executive Order 9346, which applied the anti-discrimination requirement to all government contractors.
In 1948, again under pressure from Randolph and his allies, President Harry S. Truman issued Executive Order 9981, which banned discrimination in the US military. “It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin,” read the order, which established a high-level committee to investigate instances of bias and to make recommendations for how to eliminate it.
In 1951, President Truman issued Executive Order 10308, which created the federal Committee on Government Contract Compliance, which was charged with assuring that federal contractors continued, in the post–World War II era, to comply with the non-discrimination provisions of Executive Order 8802.
In 1953, President Dwight David Eisenhower issued Executive Order 10479, which established the President’s Advisory Committee on Government Organization (an expansion of the Government Contract Committee) to assure that federal contractors respected all anti-discrimination orders and initiatives. Eisenhower’s order declared, “It is the obligation of the contracting agencies of the United States Government and government contractors to ensure compliance with, and successful execution of, the equal employment opportunity program of the United States Government.”
In 1961, President John Fitzgerald Kennedy issued Executive Order 10925, which required government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.” Kennedy’s order also created the President’s Committee on Equal Employment Opportunity, which was to work with federal agencies to advance the initiative. It was chaired by Vice President Lyndon Baines Johnson.
In 1965, President Johnson issued Executive Order 11246, which expanded federal programs to combat discrimination and implement affirmative action programs. The order specifically prohibited “federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.” And it gave the Secretary of Labor the job of administering the order’s anti-discrimination protections and initiatives. “Today,” according to the Department of Labor, “Executive Order 11246, as amended and further strengthened over the years, remains a major safeguard, protecting the rights of workers employed by federal contractors—approximately one-fifth of the entire US labor force—to remain free from discrimination on the basis of their gender, race, religion, color or national origin…and opening the doors of opportunity through its affirmative action provisions.”
Presidents, from George Washington on, have issued executive orders. And in the last century, executive orders have been closely—and consistently—tied to the improvement of the circumstance of workers employed by federal contractors.
So it came as no great surprise when, in his 2014 State of the Union address, President Obama indicated that he would issue executive orders to address pressing issues that fall within his range of responsibility. Specifically, he said he would, like the presidents before him, use his authority to place requirements on federal contractors—including a provision assuring that employers of corporations that gain federal contracts in the future will pay their employees at least $10.10 an hour.
Reasonable people can and should debate the limits of presidential power, particularly when it comes to issues of war and peace, and questions about spying on Americans or politicizing positions of public trust. Any serious discourse on executive overreach would find plenty to criticize in the approaches of all recent presidents—including President Obama.
But “reasonable” and “serious” are not the words that come to mind as the most powerful and prominent Republicans in Congress attack their president’s decision to issue the latest in a long line of executive orders with regard to federal contracts and contractors.
House Budget Committee chairman Paul Ryan, R-Wisconsin, declared, “We have an increasingly lawless presidency where he is actually doing the job of Congress, writing new policies and new laws without going through Congress. Presidents don’t write laws, Congress does.”
Senator Ted Cruz, R-Texas, announced, “Of all the troubling aspects of the Obama presidency, none is more dangerous than the president’s persistent pattern of lawlessness, his willingness to disregard the written law and instead enforce his own policies via executive fiat.”
House Speaker John Boehner, R-Ohio, accused the president of “feeding more distrust about whether he’s committed to the rule of law.” And Congressman Steve King, R-Iowa, said that when Obama told federal contractors how to treat their employees, the president had acted in an “unconstitutional” manner.
If anything, in the weeks since the president’s address, the charges of “lawlessness” have intensified. On Monday, the DC-insider journal Politico featured a gallery of Republican lawmakers and prominent conservatives under the headline “15 Times White House Was Labeled Lawless.”
So here are the questions that might be asked of President Obama’s critics:
Were Roosevelt, Truman, Eisenhower, Kennedy and Johnson lawless presidents?
Did Roosevelt, Truman, Eisenhower, Kennedy and Johnson rule by executive fiat?
Did Roosevelt, Truman, Eisenhower, Kennedy and Johnson feed distrust about whether they were committed to the rule of law?
Did Roosevelt, Truman, Eisenhower, Kennedy and Johnson act in an “unconstitutional manner” when they told federal contractors what to do?
Or is it just President Obama who is “lawless”?
And if by chance, some of the critics might argue that Roosevelt, Truman, Eisenhower, Kennedy and Johnson were “lawless,” then how long would those critics have asked the victims of discrimination to wait for reluctant Congresses to act to eliminate Jim Crow laws and barriers to the American promise that outlined in the immortal declaration that “all men [and women] are created equal.”