Another avenue for extension of the Executive's contract power is in areas within federal jurisdition but which Congress has left unregulated or has regulated only to a lesser extent than that deemed desirable by the Executive. An example of this use of the contract power is found in Executive Order 11,246. In enacting Title VII of the 1964 Civil Rights Act, the Congressional consensus was that the prohibition against discrimination on the basis of race, color, religion, sex and national origin was sufficient to accomplish the objective of eliminating employment discrimination on such bases.

The Executive, however, felt that the then-existing executive order prohibiting discrimination by Government contractors did not go far enough in dealing with the objective of equal employment opportunity, and thus the affirmative action obligation was added to place a greater responsibility on Government contractors.

By using the contract power, the Executive could accomplish many objectives deemed desirable without using the legislative process so long as the particular contract clause does not conflict directly with a federal statute. Thus, this technique affords the Executive a limited bypass of the legislative process and gives it the power to give its objective "the force and effective given to a statute enacted by Congress" 13 without the concurrence of Congress.

Several questions should be answered before this procedure proliferates. The first is whether the concentration of this power in the hands of the Executive is desirable in view of the fact that it allows the President to carry an objective into effect without resort to the legislative process established by the Constitution. In this connection, it is significant to note that Congress considered sanctioning the Executive's use of the contract power to achieve equal employment opportunity but rejected the idea. The original House bill (H.R. 7152) that eventually became the 1964 Civil Rights Act, after numerous amendments, contained a Section 711(b), which read as follows:

"The President is authorized to take such action as may be appropriate to prevent the committing or continuing of an unlawful employment practice by a person in connection with the performance of a contract with an agency or instrumentality of the United States."

During the consideration of H.R. 7152 by the House, Congressman Emanuel Celler (D. N.Y.) sponsored an amendment to eliminate this section of the bill. The amendment was accepted by the House, and in the course of the discussion Congressman John Dowdy (D. Tex.) voiced the view that, "Many of us have felt section 711 to be a highly dangerous section of the bill and accordingly much of our debate has been predicated upon the fact that this language should be removed.'

99 14

With reference to Executive Order 11,246, it has been argued that although this use of the contract power is extraordinary the need for equal employment opportunity justifies this departure from traditional concepts. Those who would rush to the conclusion that the cause of equal employment opportunity does justify a departure from the legislative process would do well to remember that the sword of Executive power cuts in two directions. Thus, the first question that should be considered in connection with Executive Order 11246 is not whether equal employment opportunity should be pursued but whether this means is consistent with the basic framework and power balance with which our form of government has successfully endured innumerable crises over the last two centuries.

HISTORY THAT SHOULD BE REPEATED

At another time in our nation's history, the Supreme Court had occasion to consider whether a crisis of similar magnitude justified an expansion of Executive power. In holding that President Truman's executive order seizing the steel mills during the Korean conflict was unconstitutional despite the pending emergency, Justice Douglas in a concurring opinion gave the sage advice that:

66

The language of the Constitution is not ambiguous or qualified. It places not some legislative power in the Congress; Article 1, Section 1 says 'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

66 Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomorrow another President

13 Farkas v. Texas Instrument, 375 F. 2d at 632.

14 110 CONG. REC. 2575 (February 8, 1964).

might use the same power to prevent a wage increase, to curb trade-unionists, to regiment labor as oppressively as industry thinks it has been regimented by this seizure.

9915

In a separate concurring opinion in the same case, Justice Jackson expressed a similar view concerning the overreaching use of Executive power that is highly relevant and appropriate to the concept behind Executive Order 11,246:

"... The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendancy is strong to emphasize transient results upon policies—such as wages or stabilization-and lose sight of enduring consequences upon the balanced power structure of our Republic." 16

CONGRESS DOES NOT BELONG ON THE SIDELINES

Congress should give thoughtful consideration to and develop a considered national policy on the use of the contract power exemplified by Executive Order 11,246 rather than stand on the sidelines and allow its proliferation without Congressional guidance. Congress should decide the kind of contracts and the kind of ancillary obligations that it will allow the Executive to impose in disbursing the funds that Congress appropriates. A mechanism should be established that will insure a legislative watchdog over the Executive's use of the contract power and will allow the Executive sufficient flexibility to administer efficiently the disbursement of Congressional appropriations.

With specific reference to Executive Order 11,246, Congress should eliminate the double standard that now exists between employers generally, who are required not to discriminate by Title VII of the 1964 Civil Rights Act, and employers who, as Government contractors, are subject to a different standard and a different enforcement procedure in measuring their compliance with the obligation. The identical obligation imposed by Title VII of the 1964 Civil Rights Act should apply, procedurally, substantively and with equal vigor to Government contractors without reference to the extraordinary obligation to take "affirmative action". There is no justification for the multiplicity of government agencies enforcing Title VII of the 1964 Civil Rights Act and Executive Order 11,246. At present, the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance and every agency that awards Government contracts are all involved in enforcement activities. This duplication has produced inconsistent enforcement standards, confusion and a wasteful use of Government manpower and resources.

Congress should immediately take appropriate steps properly to realign Congressional and Executive authority, and in doing so it might well consider some further words from Justice Jackson's concurring opinion in Youngstown Sheet & Tube Company v. Sawyer. In referring to the overextended use of the executive order, Justice Jackson said:

"... Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.

66

*

*

*

*

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With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations." 17

News Articles

[From the Evening Bulletin, Philadelphia, Oct. 27, 1969]

SENATORS CLASH AT HEARINGS ON PHILADELPHIA PLAN

(By Henry T. Aubin)

WASHINGTON-The Federal Government's Philadelphia Plan entered a new phase of controversy today as Senate conservatives and liberals clashed over the plan's legality.

15 Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579, at 630, 633–634 (1952). 16 343 U.S. at 634.

17 343 U.S. at 653, 655.

At the opening of two-day hearings on the Labor Department's minority-hiring plan by the Senate Judiciary Committee's subcommittee, subcommittee chairman Sam J. Ervin (D-NC) sharply questioned Attorney General John N. Mitchell's contention that the plan's legality is rooted in a 1965 executive order. The order requires government contractors to take "affirmative action" to hire workers "without regard" to their race, color, religion or national origin.

FATALLY DEFECTIVE

Ervin said that the plan is "fatally defective" because it "compels" contractors to make hiring decision based on race.

The plan, originally devised to apply only to Philadelphia, would write the minority-group hiring goals into specifications for bidding on federally financed construction projects of $500,000 or more. The six construction trades affected by the plan-ironworkers, plumbers and pipefitters, steamfitters, sheetmetal workers, electrical workers and elevator construction workers-each has few minority workers.

The plan would require the trades to increase minority-group membership from four percent this year to at least 26 percent by 1973.

On this point, Ervin was reiterating an objection raised last August by Comptroller General Elmer B. Staats and since defied by Secretary of Labor George Shultz and Mitchell on grounds that goals were not quotas and that Staats had no legal right to intrude on this executive branch policy.

SEMANTIC EVASION

Ervin charged Shultz with semantic evasion on the quota issue and said that the Budget and Accounting Act of 1921 authorizes the comptroller general to determine whether "financial transactions have been consummated in accordance with laws, regulations and other legal requirements."

Shultz, Staats and Jerris Leonard, chief of the Justice Department's Civil Rights Division, are scheduled to testify tomorrow.

IRONCLAD BAN

The language of the Johnson Administration's executive order, said Ervin, places "an iron-clad ban or racial considerations in employment by federal contractors."

"It is no more legal for the Labor Department to reverse the meaning of the words 'without regard' than it would be for the department to misspend a congressional appropriation," he said.

He said that the executive order "has been stretched beyond the limits of reason to lend justification" to the plan.

UP TO COURTS

The plan's principal defender, Sen. Jacob K. Javits (R-NY), testified on behalf of eight other senators that by "insuring equal employment opportunity the plan was "directly in accord with the principles underlying" the executive order.

Javits said the courts should settle any questions concerning the plan's legality.

He spoke in behalf of Republican Sen. Edward W. Brooke of Massachusetts, Clifford P. Case, of New Jersey, Robert P. Griffin, of Michigan, the assistant minority leader, and Charles E. Goodell of New York, and Democratic Sens. Fred R. Harris of Oklahoma, Philip A. Hart of Michigan, Edward M. Kennedy of Massachusetts and Birch Bayh of Indiana.

The plan was announced by the Labor Department last June, but its implementation was delayed in the face of congressional and union opposition. The first contract under the plan was awarded last week for work on Children's Hospital and Child Guidance Center in West Philadelphia.

The plan has attracted national attention since the department plans to extend it to nine other cities, two of which-Pittsburgh and Chicago-have recently been the scene of angry confrontations between blacks and whites on the matter of hiring policies.

RIGHTS ACT CITED

Ervin also attacked the plan for "contravening the intent of the most avid proponents of the 1964 Civil Rights Act." He said that the plan's goals-ranges or standards of minority employment-were in direct violation of Title 7 of the 1964 Civil Rights Act, which prohibits quotas on hiring by race.

[From the Sunday Bulletin, Philadelphia, Sunday, Mar. 9, 1969]

U.S. VOIDS PHILADELPHIA PLAN FOR HIRING OF NEGROES

(By Peter H. Binzen)

The U.S. comptroller general has ruled invalid the controversial Philadelphia Plan requiring "representative" numbers of black construction workers on federally-financed projects.

The ruling by Elmer B. Staats knocks out the Philadelphia Plan's key element and throws into question its procedures concerning guarantees for minority-group representation in construction work here.

The Philadelphia Plan took effect late in 1967. It was formulated by the Philadelphia Federal Executive Board, comprising the heads of federal agencies in the five-county area, and enforced by the Federal Office of Contract Compliance.

BUILDER REQUIREMENTS

Under the plan, low bidders on projects using federal dollars were required to submit so-called “preaward manning tables."

These job tables had to show exactly how many minority-group workers the contractors would hire in each craft and approximately how long they expected the workers to be on the job.

The tables had to be approved by the contract compliance office before the contracts could be awarded.

It was this requirement that held up millions of dollars worth of construction here last spring and summer. Federal officials sought to enforce the plan and contractors fought it.

It was this same requirement that Staats ruled against.

DISCLOSED IN LETTER

Staat's decision was disclosed in a letter to Rep. William C. Cramer (R-Fla.), an opponent of the Philadelphia Plan and similar minority-group hiring schemes especially as they relate to highway construction. Cramer had asked for a ruling.

Staats' letter was dated last Nov. 18, less than two weeks after the Republican victory at the polls and the election of President Nixon. However, Staats was an appointee of President Johnson in 1966.

Although his ruling was relayed to Warren P. Phelan, chairman of the Philadelphia Federal Executive Board, it has never officially been made public. Many of those close to the operations of the Philadelphia Plan, including some of its labor union critics, said yesterday that they were unaware of the ruling. The critics last year included the General Building Contractors Association, the Pennsylvania State Building Trades Council, AFL-CIO, and State Secretary of Highways Robert G. Bartlett, who charged it would slow down highway building in Pennsylvania.

Most of the critics attacked the plan as an illegal "quota" system that violated, they said, the 1964 Civil Rights Act ban on discrimination in hiring. In other words, they viewed it as discrimination-in-reverse, but discrimination nonetheless.

OTHER GROUNDS

Staats attacked it on other grounds.

He found the requirement for preaward submission of "an acceptable action program" to be incompatible with competitive bidding requirements of the various federal departments.

He indicated that this flaw could be corrected if the invitations for bids spelled out "definite minimum requirements" for acceptable hiring programs.

The comptroller general is Congress' watchdog. It's his job to see that the intent of legislation passed by Congress is carried out.

Actually, the Office of Federal Contract Compliance was established under an executive order rather than an act of Congress.

But Bennett O. Stalvey, regional coordinator of the OFCC and one of the developers of the Philadelphia Plan, said that Staats' opinion apparently was binding at least until it is answered by OFCC lawyers.

"I hesitate to say it (Staats' ruling) is binding," he said, "but I believe it will become binding unless our legal department can answer it.

In the other seven trades, jobs for 529 workers were pledged under Philadelphia-Plan-approved contracts through mid-September last year. Of that number, 132 or about 25 percent were to go to Negroes. There has been no check as to how many Negroes actually got jobs.

City and school board construction is unaffected by Staats' ruling. Clarence Farmer, executive director of the Human Relations Commission, noted that under the city system the procurement commissioner disqualifies from bidding on city contracts, firms whose employment records or pledges on minority-group hirings are unsatisfactory.

The procurement commissioner acts on recommendation of the Human Relations Commission. Farmer said he thought about 600 firms had been disqualified. A similar procedure is followed by the school board

KEY PROVISION

"In effect, it suspends the key part of our plan-the manning table. Some kind of substantial modifications are in order but I don't know what they will be." As things stand now, said Stalvey, his office is no longer insisting on submission of maning tables before contract awards.

Very few construction contracts have been let since Staats' ruling was made, however, because of snow and cold weather. As a result, the full impact of the finding has yet to be felt.

Most of the federal construction work here is financed by three agenciesHousing and Urban Development, Health, Education, and Welfare, and the General Services Administration.

Bernard Sisco, HEW's acting assistant secretary for administration, said in a telephone interview that he received a copy of Staats' ruling only last Wednesday.

"We are looking at the thing very carefully," he said, "but at this point we don't know what impact it will have on our projects."

"UP IN THE AIR"

A HUD official declared, "You could say that things are pretty much up in the air."

He said, however, that since November HUD hasn't begun any projects of $500,000 or more-the minimum size contract covered by the Philadelphia Planin Philadelphia.

A GSA spokesman doubted that the comptroller general's decision had dealt a death blow to the Philadelphia Plan.

"It's still in its infancy," he said. "We'll plug the loopholes. We just have to improve it. I don't think it will ever die."

The plan was directed at increasing black and Puerto Rican representation in eight "critical trades"-steamfitters, sheet metal workers, plumbers, electricians, structural iron workers, roofers, elevator constructors and operating engineers. These are among the highest paying union jobs and, except for the operating engineers, they are the ones with the least minority-group representation. The operating engineers have had substantial numbers of Negroes in their union but most are in the lowest-paid categories.

[From the Washington Star, Washington, D.C., Oct. 29, 1969]

CONGRESS URGED TO END "PHILADELPHIA PLAN" ROW

(By Dana Bullen)

Congress has been urged to clear up a conflict among federal agencies over the validity of a controversial Labor Department plan to promote minority hiring on government construction projects.