- Professor Philip Hamburger, Columbia Law
On July 21, 2014 President. Obama issued Executive Order 13672, amending EO 11246 which has been around since 1965. The new EO added sexual orientation and gender identity to the list of prohibited bases of employment discrimination by federal contractors. The order applies to all employees of a contractor, not just those working on a federal contract. It also requires the contractor to hold itself out to the public as an equal opportunity employer with respect to these newly protected classes, and to post in conspicuous places notice to employees and job applicants of its nondiscrimination duties.
Some religious organizations are federal contractors. This has long been the practice with respect to international relief efforts, as well as for services to meet the religious needs of those in prison and serving in the armed forces. Religious organizations petitioned the White House for an exemption from these new requirements. Although they did not succeed, they were able to convince President Obama to leave intact a more limited religious exception permitting religious organizations to staff on a religious basis, an exception drawn from Title VII of the 1964 Civil Rights Act.
John D. Graham, former Administrator of the Office of Information and Regulatory Affairs (OIRA), and Professor Todd J. Zywicki participated in a Teleforum conference call discussing the use of stealth regulatory tactics by federal agencies to circumvent OIRA review and rulemaking standards under the Administrative Procedures Act. Dr. Graham and Prof. Zywicki addressed the range of tactics used by agencies to bypass OIRA and APA regulatory standards, the implications of such tactics to the democratic accountability and technical competence of agencies, and options for pursuing reform. Both Speakers drew from a multi-author research collaboration organized by the Mercatus Center at George Mason University and edited by Dr. Graham that was published in Volume 37, Issue 2 and the Federalist Edition, Volume 1, Issue 1 of the Harvard Journal of Law and Public Policy.
Politicized spending by the Executive Branch is of increasing interest to social science scholars, transparency advocates, and lawyers. Beginning in 2010, in response to perceived abuses, Congress instituted an earmark moratorium; however, recent research details how political influence perseveres in the merit-based allocation of taxpayer funds. Unlike federal contracts, however, limited judicial remedies exist for challenging politicization in discretionary spending. A recent piece in the Federalist Society’s Engage details how courts will generally defer to agency determinations concerning spending, thus presenting difficulties for lawyers who seek to challenge political spending decisions in the Executive Branch. Our experts discussed the extent and effect of the political influence on spending and the importance of transparency.
Cause of Action, a government accountability group, also is launching a website detailing the phenomenon of Executive Branch earmarks and the transparency problems that persist. The website is available at www.ExecutiveBranchEarmarks.com/.