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Obama Should Lead The Way On ENDA

April 15, 2011 3:33 pm ET by Carlos Maza

Members of Congress introduced two major pieces of LGBT legislation yesterday, including the Senate’s 2011 version of the Employment Non-Discrimination Act (ENDA), which would prohibit employment discrimination on the basis of sexual orientation or gender identity.

While some in Congress are working to organize Democratic support behind the bill this year, others have expressed interest in an executive order that would “bar the federal government from contracting with companies that don’t have their own workplace protections for LGBT people.”

The Blade reported that Sen. Jeff Merkley (D-OR) endorsed the idea of such an executive order as ENDA is debated (and likely defeated) in the current Congress: 

“Certainly, I share the perspective that it would be tremendous to accomplish this by legislation,” Merkley said. “But I also feel that this is a conversation that is going to reverberate at a number of levels. You have counties, you have state action and certainly, I feel, it’s a legitimate possibility, and I would support the president saying that contractors who are beneficiaries of federal funds should in fact practice non-discrimination, so I would support that.” 

The prospect of such an order received mixed reactions from some of ENDA’s supporters, however, including Sen. Mark Kirk (R-IL): 

“I would just say when you have executive action without the statute, then quickly that would be wiped out by the next administration,” Kirk said. “The best way to go is a statute where you have a stable decision that can only be overturned by a subsequent act of Congress.”

Kirk also advised against an executive order because of what he said was a “tremendous of uncertainty right now” in the U.S. economy, which is still climbing its way out of recession.

“If we load executive order upon executive order, all which would be wiped out the day after the president of the other party takes power, you really haven’t advanced the ball much,” Kirk said. “That’s why the legislation is absolutely necessary.”

Kirk’s concerns about an executive order are not totally unfounded. It’s hard to argue that actually passing ENDA wouldn’t be a more desirable outcome than an executive order limited to federal contractors. Still, it’s important not to understate the impact that President Obama’s leadership could have on the issue of LGBT employment discrimination.

Executive orders are not as easily reversible as Kirk implies, especially when they deal with civil rights issues. Civil rights protections, even when created through executive orders, tend to quickly generate robust constituent and administrative support, making them difficult to reverse in the futre. Robert Detlefsen, former Director of Research and Education at the Center for Individual Rights, explained this point in a 1993 article examining the Reagan administration’s reluctance to reverse another equal employment order:

[I]f one administration were able to initiate an executive order unilaterally, that is, without the consent of Congress or the courts, then it should have been just as easy for a subsequent administration, acting in accordance with its prerogative, to revise or eliminate a preexisting order… The Reagan administration’s failure to revise Executive Order No. 11246 suggests that, intuition notwithstanding, preexisting executive orders are not always so easy to change. Ronald Reagan was a popular president whose view of civil rights was most definitely in conflict with an executive order program inherited from previous administrations. Yet despite having the legal and constitutional wherewithal to bring the order into line with his own administration’s views on civil rights issues, Reagan apparently felt obliged to maintain the status quo.

Kirk’s concerns about economic uncertainty also fail to form a compelling argument against executive action. If anything, the current economic climate magnifies the need to protect hard-working, qualified LGBT employees from being fired or discriminated against.

Moreover, there should not be an either-or choice between ENDA and an executive order dealing with federal contractors. In fact, executive orders frequently have the effect of generating momentum for Congressional action by mobilizing progressive forces and driving changes in mainstream opinion. Kenneth Mayer, professor of political science at the University of Wisconsin-Madison, echoed this sentiment in a 2002 piece, arguing:

[P]olitically significant executive orders are not merely executive phenomena. As illustrated by the long history of executive orders concerning integration and civil rights—Truman ordering the integration of the armed forces, Kennedy and Johnson requiring affirmative action in federal contracting, Reagan attempting to limit the role of ethnic preferences in federal affirmative action programs—these instruments of presidential authority can animate contending forces, facilitate innovations in the legislative process, codify ideological commitments, and drive social change.

Mayer isn’t alone in his position. In 2000, Bruce N. Reed, President Clinton’s chief domestic policy advisor, told The New York Times “In our experience, when the administration takes executive action, it not only leads to results while the political process is stuck in neutral, but it often spurs Congress to follow suit.”

A Senate Democratic aide told The Blade “The prospects for passing ENDA in the Senate during the 112th Congress are not great, unless there is a major push from President Obama.” What better push than an executive order demonstrating the administration’s firm commitment to anti-discrimination protections for the country’s LGBT employees?

Previously: 

Congress Introduces Two LGBT Bills, Chances For Passage Are Slim

Doing The Right Thing For 2012

Rep. Polis Supports Executive Order To Protect LGBT Employees Of Federal Contractors