Comment on Rescissions and Rule Modifications Following the Revocation of EO 11246

The ACR Project filed a comment with the Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP“) and Employment & Training Administration (the “ETA“) in support of proposed rules which take essential steps toward realizing the Constitution’s promise of equality.  You can read that comment, below.

The proposed rules logically follow from President Trump’s January 21st issuance of Executive Order 14173 (the “Equality Order“).  The Equality Order recognized that our Lincolnian Constitution centers around the guarantee of the equal rights of all American citizens.  A central provision of the Equality Order realized this promise by revoking Lyndon Johnson’s Executive Order 11246 (the “Misguided Order“). In 1965, the Misguided Order empowered the OFCCP to create from whole cloth regulations governing the behavior of federal contractors.  No law ever authorized those regulations.  Their legitimacy relied entirely on the standing instruction of LBJ and the alleged consistency of that instruction with federal law.

But those regulations created major inconsistencies with federal law.  Our comment highlights a few examples.  It also suggests a potential improvement and flags an issue DOL may wish to address while adjusting the related regulations.

Even if the Misguided Order’s regulations hadn’t conflicted with actual enacted law, after the Equality Order revoked the Misguided Order, no remaining justification for those regulations remained.

Our comment applauds DOL undertaking the proper housekeeping of purging these regulations now that they are a nullity.  This clarifies the CFR.  It also prevents any future President from trying to revivify them without undertaking a full notice-and-comment rulemaking process.