William M. Leiter
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Abstract
This paper argues that the Obama
Administration has been vigorous in fostering race/ethnic/gender/ disability
affirmative action defined as public and private efforts to reduce--through an
array of preferential treatments--societal/systemic discrimination (as opposed
to intentional mistreatment)
disproportionately affecting protected minorities and females in their
acquisition of benefits. In its exercise of affirmative action, the
Administration has deviated from the pursuit of a “one America/color-blind”
policy adhered to by a large number of citizens through the use of a number of stratagems including the
maintenance of the broad array of existing affirmative-action policies; adding
new affirmative-action undertakings statutorily; and through administrative
regulations, or non-enforcement. These stratagems (examples given herein)
raised vital constitutional issues about the merit of affirmative action,
federalism, and presidential and congressional power. These issues were not
publicly discussed to any substantial degree by the Obama Administration to the
detriment of deliberative democracy which the President had embraced in his
volume, The Audacity of Hope: Thoughts on
Reclaiming The American Dream.
The Prologue
below
concerns the Obama commitment to racial harmony
while pursuing
affirmative action, and is accompanied by a definition of affirmative action in
a portion titled, Affirmative Action and
its Rebadging which, in turn, is followed by these subsections:
The
General Stratagem: Maintain and Expand Affirmative Action
Advancing
Affirmative Action By Statute
Administrative
Enhancement Promoting New and Existing Programs
Administrative Enhancement of
Affirmative Action By Not Enforcing the Laws
Affirmative Action Through Appointment: The Dearth of
Transparency and Constitutional Integrity
All the above “bolded”
subsections may be accessed by using the computer’s find mechanism.
Prologue
President Obama has long advocated racial harmony and the
existence of one America
There's not a
black America America America United
States of America
(APPLAUSE)
The pundits, the pundits like to slice and dice our
country into red states and blue States: red states for Republicans, blue
States for Democrats. But I've got news for them, too. We worship an awesome
God in the blue states, and we don't like federal agents poking around our
libraries in the red states.
We coach little league in the blue states and, yes,
we've got some gay friends in the red states.
(APPLAUSE)
There are patriots who opposed the war in Iraq Iraq
We are one people, all of us pledging allegiance to
the stars and stripes, all of us defending the United States of America.
(APPLAUSE) [1]
The Obama insistence on the “one America America America America
As William Faulkner once wrote, "The past isn't
dead and buried. In fact, it isn't even past." We do not need to recite
here the history of racial injustice in this country. But we do need to remind
ourselves that so many of the disparities that exist in the African-American
community today can be directly traced to inequalities passed on from an
earlier generation that suffered under the brutal legacy of slavery and Jim
Crow. . . .
In the white community, the path to a more perfect
union means acknowledging that what ails the African-American community does
not just exist in the minds of black people; that the legacy of discrimination
- and current incidents of discrimination, while less overt than in the past -
are real and must be addressed. Not just with words, but with deeds - by
investing in our schools and our communities; by enforcing our civil rights
laws and ensuring fairness in our criminal justice system; by providing this
generation with ladders of opportunity that were unavailable for previous
generations. It requires all Americans to realize that your dreams do not have
to come at the expense of my dreams; that investing in the health, welfare, and
education of black and brown and white children will ultimately help all of America
The issue for the Obama Presidency was how to advance
affirmative action—which, as a major concern, seeks to provide benefits on the
basis of race, gender, disability, sexual orientation, and ethnicity while pursuing the professed Administration’s theme of
policies assistive of all Americans. Various stratagems have been employed for
this purpose, all of which associated with constitutional uncertainties. Before
these stratagems are discussed, affirmative action should be defined with
greater clarity.
Affirmative
Action and its Rebadging
Affirmative
action differs from other antidiscrimination initiatives in that (1) it targets
and seeks to remedy systemic-societal bias
(as manifested in public and private illegal action), not malefactors engaged in intentional
discrimination prohibited by law ; (2) in separate programs, or as major
portions of universal programs, it mandates race, ethnic, gender, sexual orientation,
and disability-conscious remedies for the statistical
disproportionately-adverse effects -- the so-called disparate impact -- of societal discrimination on protected
groups, whether or not specific discriminatory intent on the part of defendants can be isolated; and (3) it seeks
to integrate institutions by race, ethnicity, disabled condition, and sex. [8]
Affirmative action connotes remedial consideration of
race, ethnicity, disability, gender, or sexual orientation as a factor, among
others, in decision-making about outreach, jobs, government contracting, K-12
student assignment, university admission, voting rights and housing. The goal
of this process is to redress the disadvantage under which members of
disparately-impacted groups are said to labor. The relative weight accorded to
race, national origin/ethnicity, gender, sexual orientation or disability
varies from program to program. Thus,
affirmative action remedies range from disseminating job information to
preferential employment and admissions practices, classroom integration, the
creation of majority-minority legislative districts, and court-ordered
employment quotas in egregious discrimination cases.
Affirmative action has been
“rebadged.” The need for “diversity” in
school and workplace populations—and the supposed difference in ideas and
practices various groups bring-- has
become a dominant rationale used to support the
race/ethnic/sex/disability-conscious remedies typical of traditional
affirmative action. Why the “retheorization”? Why the “paradigm shift” from
remediation to ideational differences? For one, diversity theory does not
require the demonstration of past or present forbidden discrimination required
by the U.S. Supreme Court since 1989[9] as necessary constitutional
support for disparate-impact affirmative action. Consequently, a barrier to
promoting affirmative action is removed. Ideational diversity, as diversity
theory has it, is required to spur productivity and intellectuality,
irrespective of past or present discrimination. Alternatively, Harvard
sociologist Frank Dobbin argues that diversity rebadging was a
self-preservation “cover” created by affirmative-action devotees in personnel
departments casting about for a theory which could thwart the Reagan
Administration’s efforts to reduce the undesired affirmative-action treatment
afforded protected groups. Professor Dobbin finds a bridge between diversity
and disparate-impact thinking in American political thought. To him, mainstream
American thinking and disparate-impact theory have both subscribed to fair and
equal treatment. Fair and equal treatment and its rejection of racism and
comparable invidious animosities, to the advocates of affirmative action, would
lead naturally to diverse populations at work and in education.[10]
Besides, employing diversity themes lubricates the advance of affirmative
action by making its controversial dimensions more politically palatable. Thus,
in his Executive Order 13583,[11]
President Obama established a “Coordinated Government-Wide Initiative To
Promote Diversity and Inclusion in the Federal Workforce.” This Order did not
focus on remedying racial/ethnic/ gender discrimination through preferential
devices. Rather, we are told that “Our Nation derives strength from the
diversity of its population and from its commitment to equal opportunity for
all. We are at our best when we draw on the talents of all parts of our
society; and our greatest accomplishments are achieved when diverse perspectives
are brought to the bear to overcome our greatest challenges.” The Director of
the federal government’s central hiring agency--The Office of Personnel
Management-- said in connection with the above order: "We're going to be
very aggressive. We're going to dog this from every angle I can." [12]He
drew particular attention to the government's need to hire more Hispanics and
disabled people.[13]
The General Stratagem: Maintain and
Expand Affirmative Action
The Obama Administration inherited a large network of
affirmative-action programs. It committed itself to their maintenance and
expansion without attempting to explain their appropriateness to an American
public which, in large measure, sees itself as “colorblind.” Judgment by merit
is regarded as the key. The President echoed this sentiment in an NBC interview
held at the beginning of 2014 Sochi Winter Olympics. "There is no doubt we
wanted to make it very clear that we do not abide by discrimination in
anything, including discrimination on the basis of sexual orientation. And one
of the wonderful things about the Olympics is that you are judged by your
merit. How good you are regardless of where you come from, what you look like,
who you love -- and that, I think, is consistent with the spirit of the
Olympics. It is certainly consistent with American values, and we want to make
sure the people understand that."[14]
Many
would regard what the President said about American values as contradicted by
the extensive array of affirmative-action programs created by the national
government. The Congressional Research Service -- in its 2011 Survey
of Federal Laws Containing Goals, Set-Asides, Priorities, or Other Preferences
Based on Race, Gender, or Ethnicity [15]– provided a kaleidoscopic,
eye-crossing, summary portrait of 272 federal affirmative-action statutes. Save
for a few exceptions, this Survey does not include the multitude of
affirmative-action administrative regulations that take on the force of law.
Compounding this inexplicable omission, the Survey fails to cover
central statutory sources of federal affirmative action, and their amendments,
namely, the Civil Rights Acts of 1964[16]
and the Voting Rights Act of 1965.[17]
These statutes have been judicially and administratively interpreted as
incorporating disparate-impact theory which assumes that minorities have been subject
to prohibited discrimination if they are statistically
underrepresented in the acquisition of benefits available to Americans. This
core assumption has not been subject to public deliberative discussion by the
Obama Administration even though its leader charged with enforcing
affirmative-action regulations—Attorney General Holder-- said[18]
at the beginning of the Obama first term at the Department of Justice
African-American History Month Program:
Though this
nation has proudly thought of itself as an ethnic melting pot, in things racial
we have always been and continue to be, in too many ways, essentially a nation
of cowards. Though race related issues continue to occupy a significant portion
of our political discussion, and though there remain many unresolved racial
issues in this nation, we, average Americans, simply do not talk enough with
each other about race. It is an issue we have never been at ease with and given
our nation’s history this is in some ways understandable. And yet, if we are to
make progress in this area we must feel comfortable enough with one another,
and tolerant enough of each other, to have frank conversations about the racial
matters that continue to divide us. But we must do more- and we in this room
bear a special responsibility. Through its work and through its example this
Department of Justice, as long as I am here, must - and will - lead the nation
to the "new birth of freedom" so long ago promised by our greatest
President. This is our duty and our solemn obligation.
The President, himself, is regarded
as a champion of “deliberative democracy” by a leading Obama scholar.[19]
But the President has failed to publicly discuss affirmative action in any
fashion that can properly be called an exercise in “deliberative democracy.” Of
course, he has made statements here and there supportive of affirmative action,
but overall his has been a hidden-hand and a soft-pedaled commitment. He has
seldom referred to affirmative action and its constitutional uncertainties,
leaving it to his underlings to promote the legislation, draft the regulations,
and otherwise advance its cause. A new
White House Initiative --titled My Brother’s Keeper and to be inaugurated late
February, 2014-- may bring the President more to the forefront of his Administration’s
affirmative action efforts. This initiative reportedly will involve White House
efforts to encourage foundation and corporate leaders to improve educational
and employment opportunities for minority males disproportionately impacted by
impoverishment and the criminal justice system.[20]
As
to uncertainties, for one thing, the Supreme Court has not determined whether
disparate-impact theory conforms with the dictates of the Equal Protection
Clause of the Fourteenth Amendment. The Court has told us that where government
involves itself in racial classifications it must pass strict scrutiny. What
racial classifications are is yet to be defined by the High Court which has
also left unclear a primary dimension of strict scrutiny—the need for
government to demonstrate a compelling governmental interest for engaging in
affirmative action. To Obama, writing in his Audacity of Hope volume,[21]
there is a public benefit which is associated with the Constitution’s
uncertainties, namely, these uncertainties invite “deliberative democracy.”
According to Audacity:
What
the framework of our Constitution can do is organize the way by which we argue
about our future. All of its elaborate machinery—its separation of powers and
checks and balances and federalist principles and Bill of Rights—are designed to
force us into a conversation, a “deliberative democracy” in which all citizens
are required to engage in a process of testing their ideas against an external
reality, persuading others of their point of view, and shifting alliances of
consent.
Importantly,
the President has neglected to advance a “deliberative-democracy” benefit in
connection with race/ethnic affirmative action, and its constitutional issues.
Advancing
Affirmative Action By Statute
Audacity
of Hope[22]
also tells the reader that:
Even as we continue to defend
affirmative action as a useful, if limited, tool to expand opportunity to underrepresented
minorities…we should support targeted programs to eliminate existing health
disparities between minorities and whites. …[A] plan for universal health-care
coverage would do more to eliminate health disparities between whites and
minorities that any race-specific programs we might design. An emphasis on
universal as opposed to race-specific programs isn’t just good policy; it’s
also good politics.
Furthering Obama’s plan for assisting the health-care
needs of underrepresented minorities, the universalistic Affordable Care Act of
2010 (ACA) dramatically extended Medicaid eligibility, the nation’s largest and
largely free health insurance program for low-income people disproportionately
available to minorities. If implemented as the statute directed, the Medicaid
population would have grown by 21.8 million to 82.2 million by 2019.[23]
Additionally, those not eligible for Medicaid are to be liberally subsidized by
the national government when they acquire mandated private insurance—mandates
which impose penalties if not adhered to.[24]
The Obama Administration focused on the Commerce Clause of the Constitution’s
Article I, Section 8 (which grants Congress the power to regulate commerce
among the several states) as authorization for federal health insurance
mandates, arguing that those without insurance when taken collectively imposed
a substantial negative effect on interstate commerce. A minority of the Supreme
Court regarded this as a reasonable argument, but the majority ruled that
requiring health insurance based on the Commerce Clause would grant too much
power to the federal government under that Clause,[25]
thus leaving the question of what power the Commerce did grant unresolved—a
question debated since the earliest days of the Republic. The individual
insurance mandates of the ACA were upheld as appropriate exercises of the
federal tax capacity as the penalties imposed for not obtaining insurance were
regarded as a tax, but the extent to which the national government can employ
its revenue-raising capacity to regulate remains constitutionally debatable.[26]
The Supreme Court did find the required expansion of Medicaid (jointly
administered by the states and the national government) to be an invasion of
state sovereignty unless the states desired to undertake the expansion, thus
imposing a great burden on the Obama design as well as bringing to the
forefront the classic federalism issue of the extent to which state sovereignty
restricts national power.
The
President has fulsomely praised the Financial Reform Act of 2010.[27]
The Act provides another example of affirmative-action embedment in a
universalistic statute, as it requires the creation of some thirty different
minority and female-inclusion offices to operate as vehicles sensitive to
minority and female needs and interests in such places as the Federal Reserve,
its regional banks, the Federal Deposit Insurance Corporation, the federal
Housing Finance Agency, the National Credit Union Administration, the
Securities Exchange Commission, and the Controller of the Currency.[28] The Consumer Financial Protection Bureau (CFPB) was created by the Act, and its
Director has promised that the Bureau will protect all borrowers against
inequitable lending practices including those which disparately impact
“communities of color.”[29]
Disparate-impact doctrine, he noted, “is applicable for all of the credit
markets we touch, including mortgages, student loans, credit cards and auto
loans.”[30]
“Thus,” one reviewer comments, “if applications by blacks and Hispanics for
mortgage or credit cards produce significantly higher rejection rates than
applications by whites, these reporting agencies could be sued even if their
risk analyses in no way took race into consideration.” [31]
Administrative
Enhancement Promoting New and Existing Programs
A second strategy used during the Obama Presidency to
advance affirmative action was through administrative maintenance and
enhancement action. For example, the Housing and Urban Development (HUD) administrative
regulations governing the implementation of the Fair Housing Act were changed
during the Obama years to prohibit disparate-impact discrimination in the sale
and rental of housing to minorities[32]—a
change very much in conformity with the President’s chagrin over the
discrimination affecting Blacks in the housing realm. During the first
presidential campaign, he noted that [33]:
Legalized discrimination - where blacks
were prevented, often through violence, from owning property, or loans were not
granted to African-American business owners, or black homeowners could not
access FHA mortgages, or blacks were excluded from unions, or the police force,
or fire departments - meant that black families could not amass any meaningful
wealth to bequeath to future generations. That history helps explain the wealth
and income gap between black and white, and the concentrated pockets of poverty
that persists in so many of today's urban and rural communities.
The
U.S. Courts of Appeal have generally ruled that disparate-impact theory can be
used to define prohibited discrimination in the Fair Housing Act. The U.S.
Supreme Court has not, as yet, so ruled.
Critics of the Obama Administration insist that the Administration’s
Chief of the DOJ’s Civil Rights Division, Thomas Perez, attempted to prevent
the Supreme Court from addressing the question of whether the Fair Housing Act
prohibits disparate-impact discrimination.
Perez
underscored his Division’s affirmative-action assault on mortgage-lending
practices in testimony before the Senate Judiciary Committee in March, 2012. [34]
The housing crisis has touched so
many communities across the country.
Communities of color, in particular African Americans and Latinos, have
been hit particularly hard. . . .That is why, in the wake of the housing and
foreclosure crisis, the federal government, under the leadership of President
Obama, has responded forcefully. To address discrimination in lending, Attorney
General Holder created a Fair Lending Unit in the Civil Rights Division’s
Housing and Civil Enforcement Section.
Since the establishment of the Fair Lending Unit, thanks to the
committee career professionals in the
division, we have brought record numbers of enforcement actions. In the approximately 24 months since the
unit was established, the division filed or resolved 16 lending matters. By way of contrast, from 1993 to 2008, the
department filed or resolved 37 lending matters, an average of a little more
than two cases per year.
The division produced unprecedented results in 2011 alone. We filed a record eight lending-related
federal law suits, and obtained eight settlements providing for more than $350
million in relief to the victims of illegal lending practices. This includes our settlement with
Countrywide Financial Corporation, the largest lending discrimination case ever
brought by the Department of Justice. … Our $335 million settlement against
Countrywide is the largest fair housing discrimination settlement in U.S.
At the core of our complaint is a
simple story. If you were African
American or Latino, you likely paid more for a Countrywide loan than a
similarly-qualified white borrower simply because of your skin color. For instance, a qualified nonsubprime
customer in Chicago seeking a $200,000 loan paid an average of about $1100 more
in unnecessary, unjustified fees if she were Latino, and about $1235 more if
African American, than the average amount charged to a similarly situated
non-minority. In addition, if you were
African American or Latino, you were far more likely to be steered into an
expensive and risky subprime loan than a similarly-situated white
borrower. There are thousands of
qualified African Americans and Latinos who should have been placed in prime
loans, but were denied equal credit opportunity. African Americans and Latinos who were
steered paid on average tens of thousands more for their loans, which had other
corrosive features such as prepayment penalties, and these loans carried an
increased risk of default and foreclosure.
One of the insidious aspects of these practices is African American and
Latino borrowers who walked into Countrywide’s door had no idea they could have
gotten a better deal. That is
discrimination with a smile.
The problem associated with Perez’s Countrywide analysis
is that it relied on averages. Some 200 thousand minorities paid more than the
average cost for Whites. But 500 thousand loans were made to minorities which
means that most Blacks and Hispanics paid the average or less. Why should a
claim of prohibited discrimination be made? What about Whites who paid above
the average? Why was there no claim of disparate impact for them? The Fair
Housing Act prohibits all racial/ethnic discrimination, not just some.[35]
Further, the evidence available to the U.S. Civil Rights Commission Staff did
not support the notion that minority racial or ethnic groups were
systematically subjected to predatory lending schemes.[36]
Note has been made that the U.S.
Supreme Court has not determined that the Fair Housing Act recognizes
disparate-impact theory. A case ( Magner
v. Gallagher) which was accepted by the Court where that question could
have been answered involved the City of St.
Paul St. Paul February 3, 2012 , Perez met
with the St. Paul St. Paul
Major
federal administrative units responsible for implementing affirmative action in
private employment are the Equal Employment Opportunities Commission (EEOC) and
the Office of Federal Contract Compliance Programs (OFCCP). Both have been
particularly aggressive in advancing disparate-impact affirmative action during
the Obama presidency, and both have plans to increase their potency during his
second term. The OFCCP is the first focus here. It was created by presidential
executive order, raising the constitutional question whether the birth of this
agency conforms with Article I of the Constitution which allocates the
legislative authority to the Congress of the United States.
Under OFCCP regulations, every nonconstruction contractor
and subcontractor who supplies goods or services to the federal government of
at least $50,000 and has 50 or more employees is required to have an
affirmative action plan. Some 140,000 businesses have such a contractual
relationship.[41]
The annual affirmative action plan[42]
requires an analysis of the percentage of minorities[43]
and women in each work group along with a comparison of the percentage of each
minority group and females to
The percentage of minorities or women with requisite
skills in the
reasonable recruitment area. The reasonable recruitment
area is defined as
the geographical area from which the contractor
usually seeks or
reasonably could seek workers to fill the positions
in question.[44]
Where
minorities are underutilized relative to their availability, contractors are
required—at the pain of losing their contractual relationship with the national
government and other penalties—to undertake good faith efforts to
resolve this underrepresentation. Good faith efforts require the establishment
of goals.
“Placement goals serve as objectives or targets reasonably attainable by means
of applying every good faith effort”[45]
to overcome the underutilization of minorities and women. In 2011, OFCCP cited
more businesses for affirmative-action violations than at any time in the
preceding nine years. More than half of the violations concerned the failure to
engage in appropriate affirmative action for the disabled and veterans.[46]
While increasing its focus on disparate impact, OFCCP during the Obama years
has acquired large conciliation settlements from businesses charged with
violations, e.g., $3 million from FedEx; and $2 million from Baldor Electric. A
2011 memo of understanding between the EEOC and OFCCP was designed to increase
the capacity of both agencies to investigate affirmative-action violations.[47] OFCCP’s capacity alone has been augmented in
that its full-time staff has grown from some 585 to 755 between 2009 and 2011,
and its funding has increased about 25% during that same time period.[48]
To the human- resources information systems director at St. Jude’s Medical Center Nashville
OFCCP affirmative-action regulations
for veterans and the disabled are prescribed by different regulatory codes than
that covering minorities and women and referenced[51]
above. Veterans are covered by Title 41§ 60-250 et seq of the Code of Federal Regulations.[52]
Under that Code, contractors and subcontractors (including those in
construction) with U.S. contracts of at least $50,000 and 50 employees are
required to have an affirmative-action plan requiring the taking of “positive
steps to attract qualified veterans”[53]
for available employment. This program is to include an active outreach effort
covering organizations knowledgeable about veterans seeking jobs such as employment
agencies and veterans’ societies; plans for hiring veterans; audits to
determine effectiveness; and remedial plans to meet these objectives where they
are not met. Penalities for contractor nonconformity include disbarment from
contractual relations with the federal government.[54]
The Code of Federal Regulations,
Title 41§60-741
et seq [55]
governs the disabled persons affirmative-action responsibilities of federal
contractors/subcontractors (construction or otherwise) holding contracts of
$50,000 or more with 50 employees. These contractors are to engage in extensive
outreach to attract the disabled defined as those who suffer from physical or
mental limitations which substantially interfere with a major life activity.[56]
Contractors are to reasonably accommodate the disabled when such accommodation
is needed to qualify them to perform the required work.[57]
Unlike the requirements for minorities, and females, OFCCP regulations did not
require contractors to establish objectives or goals for the provision of
employment opportunities for both veterans and the disabled. Consequently, OFCCP has, during the Obama
Administration, successfully proposed new regulations that require contractors
to create goals for hiring vets, and qualified disabled which includes a 7%
hiring objective for the latter.[58]
The regulatory change covering goals for the hiring of the disabled has
prompted strong protests from federal contractor representatives. For example,
the head of an organization representing human resources specialists wrote a
senior Obama official responsible for regulatory-rule reform as follows:
[The]
H[uman]R[esources] Policy Association is writing to express its strong concern
regarding the economic analysis conducted by Office of Federal Contract
Compliance Programs (OFCCP) for the Notice of Proposed Rulemaking (NPRM) that
was published on December 9, 2011, revising the regulations implementing the
non-discrimination and affirmative action regulations of Section 503 of the
Rehabilitation Act of 1973 (RIN 1250-AA05). Specifically, we would like to
bring to your attention a new report from Applied Economic Strategies (AES)
that estimates the first year cost of the NPRM [calling for a 7% hiring goal
for the disabled] to be at least $5.9 billion, significantly higher than the
$81.1 million estimated by OFCCP, and well in excess of the $100 million
threshold that triggers a more detailed review of the regulatory burdens and
potential alternatives…. [W]e would ask that the enclosed study be considered
…and that OMB [Office of Management and Budget] ensure that OFCCP has
considered a range of alternatives that would minimize or avoid the substantial
costs that would otherwise be incurred by federal contractors.[59]
The Equal Employment Opportunities Commission was created
by the 1964 Civil Rights Act[60]
to implement the prohibition against racial, ethnic, sexual, and disability
discrimination in private-sector employment opportunities. According to a 2011
Commission interpretation which challenges the Constitutional allocation of
legislative powers to the Congress, EEOC has extended the ban against sex
discrimination to cover LGBT persons.[61]
Title 29 § 1608 et seq of the Code of Federal Regulations delineates
the EEOC’s affirmative-action guidance for minorities and women in the private
arena.[62]
Private employers are encouraged to engage in a self-analysis to determine
whether minorities and women are statistically underrepresented relative to
their availability in the appropriate labor market. If such underutilization is
discovered, employers are urged to exercise good faith by
“initiat[ing] affirmative steps to remedy the situation” through the creation
of long and short-term goals and timetables accompanied by, among other things:
“[a] recruitment program designed to attract qualified members
of the group in question; [and a]systematic effort to organize work and
re-design jobs in ways that provide opportunities for persons lacking
‘journeyman’ level knowledge or skills to enter and, with appropriate training,
to progress in a career field….”[63] Goals and timetables for the utilization of the disabled are not
required by the EEOC. Nonetheless, that agency requires employers to
“reasonably accommodate” the disabled by providing such things as accessibility
and special work tools. The reasonable accommodation mandate is an
affirmative-action vehicle incorporated in the American With Disabilities Act
to help grapple with the systemic, disparate-impact discrimination against the
disabled which Congress found to exist. [64]
Commentators have underscored the
increased EEOC antidiscrimination zealotry in the Obama years. The number of
disparate-impact investigations has increased four-fold, and if these are not
settled—and typically they are not—courtroom litigation on these matters will increase
significantly in 2013-2014.[65]
Under the EEOC’s 2012-2016 Strategic Enforcement Plan the reduction of
disparate-impact discrimination affecting minorities, immigrants, females, LGBT
people will be emphasized.[66] It is estimated that the
disparate-impact suits will account for some one-fourth of all of EEOC
antidiscrimination court filings. EEOC recorded record high monetary recoveries
in 2012 for discrimination victims with $36.2 million funneled to some 3,813
disparate-impact victims.[67] Overcoming the gender pay gap is of
great concern both to the President and the leaders of EEOC and OFCCP. More
activism in this disparate-impact area can be expected in the Obama second
term.[68] Importantly, too, given the large
number of minorities with criminal records, EEOC has insisted that employers be
capable of the difficult task of demonstrating that past criminal activity
would clearly interfere with work ability before applicants are rejected on
criminal records alone.[69]
Administrative
Enhancement of Affirmative Action By Not Enforcing the Laws
In mid-June, 2012, the President, in Rose Garden remarks,
announced that some 800,000 to 1.76 million young-overwhelmingly Hispanic-illegals[70]
would be freed from the oppressiveness of statutorily required deportation by
the process of not executing the laws. Skirting a deliberative-democracy
opportunity, the President said:
In the absence of any immigration action from
Congress to fix our broken immigration system, what we’ve tried to do is focus
our immigration enforcement resources in the right places. . . . We've improved
on that discretion carefully and thoughtfully.
Well, today, we're improving it again. Effective immediately, the
Department of Homeland Security is taking steps to lift the shadow of
deportation from these young people.
Over the next few months, eligible individuals who do not present a risk
to national security or public safety will be able to request temporary relief
from deportation proceedings and apply for work authorization. Now, let's be
clear -- this is not amnesty, this is not immunity. . . . It is --
Q
(Inaudible.)
THE PRESIDENT:
-- the right thing to do.
Q --
foreigners over American workers.
THE PRESIDENT:
Excuse me, sir. It's not time for
questions, sir.
Q No, you
have to take questions.
THE PRESIDENT:
Not while I'm speaking.
Precisely because this is temporary, Congress needs
to act. There is still time for Congress
to pass the DREAM Act this year, because these kids deserve to plan their lives
in more than two-year increments. . . . And
as long as I’m President, I will not give up on this issue, not only because
it’s the right thing to do for our economy -- and CEOs agree with me -- not
just because it’s the right thing to do for our security, but because it’s the
right thing to do, period. . . . And the
answer to your question, sir -- and the next time I’d prefer you let me finish
my statements before you ask that question -- is this is the right thing to do
for the American people --
Q
(Inaudible.)
THE PRESIDENT:
I didn’t ask for an argument. I’m
answering your question.
Q I'd like
to --
THE PRESIDENT:
It is the right thing to do --
Q
(Inaudible.)
THE PRESIDENT:
-- for the American people. And
here’s why --
Q --
unemployment --
THE PRESIDENT:
Here’s the reason: because these
young people are going to make extraordinary contributions, and are already
making contributions to our society. I’ve got a young person who is serving in
our military, protecting us and our freedom.
The notion that in some ways we would treat them as expendable makes no
sense. If there is a young person here
who has grown up here and wants to contribute to this society, wants to maybe
start a business that will create jobs for other folks who are looking for
work, that’s the right thing to do.
Giving certainty to our farmers and our ranchers; making sure that in
addition to border security, we’re creating a comprehensive framework for legal
immigration -- these are all the right things to do.
We have always drawn strength from being a nation of
immigrants, as well as a nation of laws, and that’s going to continue. And my hope is that Congress recognizes that
and gets behind this effort. All right.
Thank you very much.
Q What
about American workers who are unemployed while you import foreigners?
END
The President and his Administration
are no strangers to challenging the Constitution’s stricture that presidents
faithfully execute the laws. Non-execution was a feature of the President’s
efforts to reduce society’s systemic discrimination of the homosexuals. During
the 2008 campaign and thereafter, President Obama emphasized his opposition to
both the Don’t Ask, Don’t Tell Statute (DADT) and the Defense of Marriage Act.
The former statute was the result of a congressional “compromise” crafted to
quiet the hubbub provoked by President Clinton’s proposed executive order
banishing sexual-orientation discrimination in the military.[71] In general, DADT was supposed to hold gays
and lesbians harmless so long as their sexuality was kept in the “dark.” The Constitution’s faithful execution of the
law requirement has been typically regarded as requiring the president’s
officers to defend congressional statutes when they are challenged in court. And
the Obama Administration said that it would defend the statute. According to
law Professor Antony Barone Kolenc’s astute research, this defense was
pretexual and not wholehearted.[72]
In
support of his assertion, Professor
Kolenc details how Justice Department (DOJ) officials vetted their DADT
briefs to LGBT-advocacy group leaders, and
promised to keep DOJ argumentation
free of matters offensive to homosexuals. DOJ briefs in their so-called defense of
DADT amazingly made it clear that the Obama Administration, rather than supporting the statute, viewed it as
unconstitutional! And when an appellate
court ruled against the DOJ’s “defense,” the Administration did not seek
Supreme Court review. Further, Obama Administration argumentation did not
involve the critically strong constitutional and other positions advanced by
its predecessor Bush DOJ.[73]
Pretend
to defend postures by presidents, to Kolenc, seriously frustrates the following
constitutional obligations: the
president’s duty to faithfully execute the laws; the ability of congress to investigate and correct executive
branch undertakings; judicial capacity to weigh and balance arguments presented
to it; the lawyerly duty to present
their best arguments ; and the need to correctly inform the public about
governmental activities. Pretense can
have benefits though in that it may facilitate the achievement of presidential
objectives and lubricate the president’s political flexibility.[74]
Initially,
the Obama Administration also proclaimed that it would judicially defend the
Defense of Marriage Act (DOMA)[75]
which defines marriage as between a man and a woman, and consequently
substantially restricts federal marital benefits to such conventional unions.
The Department of Justice explained that
As it generally does with existing statutes,
the Justice Department is defending the law on the books in court. The
president has said he wants to see a legislative repeal of the Defense of
Marriage Act because it prevents LGBT couples from being granted equal rights
and benefits. However, until Congress passes legislation repealing the law, the
administration will continue to defend the statute when it is challenged in the
justice system.[76]
The
Administration’s initial courtroom brief[77]
of August 3, 2009
prompted a storm of criticism from LGBT advocates. An example of such outrage
follows:[78]
I cannot state strongly enough how
damaging this brief is to us. Obama didn't just argue a technicality about the
case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA
wasn't motivated by any anti-gay animus. He argued why our Supreme Court
victories in Romer[79]
and Lawrence[80]
shouldn't be interpreted to give us rights in any other area (which hurts us in
countless other cases and battles). He argued that DOMA doesn't discriminate
against us because it also discriminates about straight unmarried couples (ignoring the fact that they can get
married and we can't). He actually argued that the courts shouldn't consider Loving v. Virginia, the miscegenation
case in which the Supreme Court ruled that it is unconstitutional to ban
interracial marriages, when looking at gay civil rights cases. He told the
court, in essence, that blacks deserve more civil rights than gays, that our
civil rights are not on the same level. And before Obama claims he didn't have
a choice, he had a choice. Bush, Reagan and
Clinton all filed briefs in court opposing current federal law as being
unconstitutional…. Obama could have done the same. But instead he chose to
defend DOMA, denigrate our civil rights, go back on his promises, and
contradict his own statements that DOMA was "abhorrent." Folks,
Obama's lawyers are even trying to diminish the impact of Romer and Lawrence, our
only two big Supreme Court victories. Obama is quite literally destroying our
civil rights gains with this brief. He's taking us down for his own benefit.
A
Washington Post editorial argued that the firestorm associated with the initial
DOJ DOMA defense resulted in a “do-over” of the Administration’s August 24, 2009 defense of the statute. That defense maintained merely that the
plaintiffs arguing against the statute lacked standing “without dabbling in
noxious, outdated and irrelevant arguments.”[81]
“With respect to the merits,” the brief
maintained, “this Administration does not support DOMA as a matter of policy,
believes that it is discriminatory, and supports its repeal.”[82]
However, DOMA’s legitimacy was being defended by DOJ because it had been
judicially upheld in the past and passed mere rationality (non-arbitrary and
capricious) review.[83]
The
DOMA “do-over” did not end with the August 24 milder brief. In February, 2011,
the DOJ—prompted by the President—decided not to defend DOMA in the courts at
all because of its unconstitutionality. The Administration determined
concurrently to continue the statute’s enforcement. To say that DOMA is
unconstitutional, but still enforce it, prompted the Chief Justice to
caustically remark: “I don’t see why he [the President] doesn’t have the
courage of his convictions….” and administer the law in a fashion “consistent
with his view of the Constitution, rather than saying, oh, we’ll wait till the
Supreme Court tells us we have no choice.”[84]
The Chief Justice might very well have concluded that the Administration’s
non-defense of DOMA was politically motivated.
During the oral arguments concerning DOMA’s constitutionality (where the Chief Justice
made his “courage of convictions” remark), he said: “I suppose the sea change
[in support of single-sex marriage] has a lot to do with the political force
and effectiveness of people representing, supporting your side of the
case?....As far as I can tell, political figures are falling over themselves to
endorse your side of the case.”[85]
What
about the Constitution’s faithful execution of the laws requirement? Law Professor Arthur Miller focuses on the
existence of both a written and unwritten constitution for presidents.
Key to the unwritten law guiding presidents is to do what is politically
necessary to promote both an administration’s potency, and the general welfare[86]--
including pluralistically deferring to the interests of as many legitimate
interest groups as is prudently possible.
President Obama seems seriously supportive of LGBT rights, while
understanding the very substantial concern and opposition to them. His
Administration’s partial defense of DADT and DOMA convolutions represent
efforts at attempting to please “all sides.” The problem that the unwritten law of political necessity creates,
as Professor Miller noted, “is obvious: the notion of a government under law is
lost. Perhaps the concept never existed, except in the myth system…. The
President does what the political process allows him to do--or to get away
with.”[87]
In August, 2013, Attorney General Holder—relying on the president’s
Constitutional clemency authority to
grant reprieves, pardons, and commutations for criminal offenses against the
United States—announced a drug charging policy and clemency policy designed to disproportionately
affect people of color. He said: [88]
It’s clear – as we come together today –
that too many Americans go to too many prisons for far too long, and for no
truly good law enforcement reason. . . .
The President and I have been talking about [criminal justice reform] for as long as I’ve known him –[reform] issues he’s felt strongly about ever since his days as a community organizer on the South Side of Chicago. He’s worked hard over the years to protect our communities, to keep violent criminals off our streets, and to make sure those who break the law are held accountable. And he’s also made it part of his mission to reduce the disparities in our criminal justice system. In Illinois, he passed legislation that addressed racial profiling and trained police departments on how they could avoid racial bias. And in 2010, this Administration successfully advocated for the reduction of the unjust 100-to-1 sentencing disparity between crack and powder cocaine. . . . . Right now, unwarranted disparities are far too common. As President Obama said last month, it’s time to ask tough questions about how we can strengthen our communities, support young people, and address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system – as victims as well as perpetrators.
We also must confront the reality
that – once they’re in that system – people of color often face harsher
punishments than their peers. One deeply troubling report, released in
February, indicates that – in recent years – black male offenders have received
sentences nearly 20 percent longer than those imposed on white males convicted
of similar crimes. This isn’t just unacceptable – it is shameful.
It’s unworthy of our great country, and our great legal tradition. And in
response, I have today directed a group of U.S. Attorneys to examine sentencing
disparities, and to develop recommendations on how we can address them.
In this area and many others – in ways both
large and small – we, as a country, must resolve to do better. The
President and I agree that it’s time to take a pragmatic approach. And
that’s why I am proud to announce today that the Justice Department will take a
series of significant actions to recalibrate America’s federal criminal justice
system.
We will start by fundamentally
rethinking the notion of mandatory minimum sentences for drug-related
crimes. Some statutes that mandate inflexible sentences – regardless of
the individual conduct at issue in a particular case – reduce the discretion
available to prosecutors, judges, and juries. Because they oftentimes
generate unfairly long sentences, they breed disrespect for the system.
When applied indiscriminately, they do not serve public safety. They –
and some of the enforcement priorities we have set – have had a destabilizing
effect on particular communities, largely poor and of color. And, applied
inappropriately, they are ultimately counterproductive.
This is why I have today mandated
a modification of the Justice Department’s charging policies so that certain
low-level, nonviolent drug offenders who have no ties to large-scale
organizations, gangs, or cartels will no longer be charged with offenses that
impose draconian mandatory minimum sentences. They now will be charged
with offenses for which the accompanying sentences are better suited to their
individual conduct, rather than excessive prison terms more appropriate for
violent criminals or drug kingpins. By reserving the most severe
penalties for serious, high-level, or violent drug traffickers, we can better
promote public safety, deterrence, and rehabilitation – while making our
expenditures smarter and more productive. . . .
Secondly, the Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances – and who pose no threat to the public. In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons. Today, I can announce additional expansions to our policy – including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.
Secondly, the Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances – and who pose no threat to the public. In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons. Today, I can announce additional expansions to our policy – including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.
Presidential administrations have assumed that the
Constitution admits of executive discretion in the implementation of the laws
in order to conform with political, financial, and administrative needs—needs
that have resulted in much presidential non-enforcement of the laws throughout
our history. Additionally, the broad presidential clemency discretion has been
employed to regulate the administration of federal criminal law. The
Constitution remains unclear as to how clemency and executive discretion—really
presidential vetoes with other names-- are to be squared with the Faithful
Execution requirement and the Constitution’s delegation of legislative
authority to the Congress. Presidents are constrained in this connection
by the political process and/or what they can get away –as Professor Miller
appropriately claims above—and consequently the notion that ours is a
government of laws is greatly cheapened.
Affirmative Action Through Appointment: The Dearth of
Transparency and Constitutional Integrity
President Obama has pursued affirmative action in his
appointments. For example, at the beginning of the second Obama term, the White
House website proclaimed that a top priority of the President in his judicial
nominations was to “embody an unprecedented commitment to expanding the racial,
gender, and experiential diversity of the men and women who enforce our law and
deliver justice.”[89] Forty-one percent of Obama’s nominees were
women; those for George W. Bush, 21%; and 29% for Clinton. Blacks constituted
16% of the Obama judicial nominees, the same as for Clinton but only 7% of Bush’s
nominees were Black. Fifteen percent of the Obama nominees were Hispanics, but
his immediate predecessors nominated only 9 and 7% respectively. Eight percent
of the Obama nominees were Asians, but Asians accounted for only 1% of the Bush
and Clinton nominees. We also learn
that, for the first time, openly gay persons and Vietnamese, Korean, Chinese,
Filipino and South Asian women were selected for the federal bench. What the
website does not address is the central constitutional question of the merit of
using color, ethnicity, gender, and sexual orientation as factors in judging
people. There has been a woeful neglect of transparency by this Administration
in connection with publicly explaining the reasons for and the merit of
affirmative action which it has so vigorously implemented. The need is
particularly acute in connection with reliance by disparate-impact theory that
invidious discrimination is to be assumed
if protected groups are statisically underrepresented in the acquisition of societal
benefits. Similarly, the Obama Administration, like its
predecessors, has made little effort to publicly expose the vital
constitutional issues addressed above, leaving the nation with a bundle of
ambiguities that they had little help in exploring. As a result, the morality
of the public’s knowledgeable discussion and the morality of deliberative
democracy were much frustrated. One would have had the “audacity of hope” that
President Obama would have publicly presented basic constitutional issues in a
way as to encourage the Constitution’s objective which, as he wrote, [90]
was to foster a “deliberative democracy” in which citizens would “engage in a
process of testing their ideas against an external reality, persuading others
of their point of view, and building shifting alliances of consent.” Alas, this
commendable mode of constitutional integrity was not to be had.
Copyright © 2014 by William Leiter
with all rights Reserved
[1]
From
the Washington Post Transcript of U.S. Senate Candidate Barack Obama’s Speech
at the Democratic National Converntion, July 27, 2004 . Accessible at http://www.washingtonpost.com/wp-dyn/articles/A19751-2004Jul27.html
[2] Barack Obama, The Audacity of Hope: Thoughts on Reclaiming
the American Dream ( Vintage Paperback, 2008), 293.
[3] See Thomas J. Sugrue, Not Yet Past: Barack Obama and the Burden of Race (Princeton , 2010),
117.
[4] Barack Obama, Why Organize Problems and Promise in the
Inner City, Illinois
[5] Sugrue, Not
Yet Past at 46 (cited in note 3).
[6] Remarks by Senator Obama at Howard
University, September 28, 2007. Howard Univ. Transcript http://www.howard.edu/newsroom/news/2007/071001RemarksofSenatorBarackObama.htm
[7] Remarks by Senator Obama on A More Perfect Union , March 18, 2008 . Huffington Post Transcript at http://www.huffingtonpost.com/2008/03/18/obama-race-speech-read-th_n_92077.html
[8] Here,
"discrimination" means invidious
(i.e., unfair or unjust) treatment of people. "Societal (systemic,
disparate-impact) discrimination" means societally-rooted invidious
treatment of people on account of group membership or affiliation. "Protected
group" means the racial and ethnic (national origin/ancestral) groups,
sexuality groups, and disabled people covered by anti-discrimination laws and
regulations. "Minorities" are the racial and ethnic groups so
covered. "Affirmative action" means the general policy for treating
societal discrimination. There are many specific policies for implementing this
general policy.
[10] Frank Dobbin, Inventing Equal Opportunity (Princeton
& Oxford, 2009), 101-160. The concepts “rebadging” and “retheorization” are
from this volume.
[11] August 18, 2011.Accessible at http://www.whitehouse.gov/the-press-office/2011/08/18/executive-order-establishing-coordinated-government-wide-initiative-prom
[12] Cited by Joe
Davidson, Diversity is Among OPM’s
chief’s Top goals, The Washington Post, January 11, 2012, Metro Sect. B04.
[13] Id.
[14] Cited by
Philian Ng & Erik Hayden, Olympics:
Obama, Bob Costas Chat About ‘Tough Guy’ During Interview, The Hollywood
Reporter, February 6, 2014.Accessible at http://www.hollywoodreporter.com/live-feed/olympics-obama-bob-costas-chat-678042
[16]
Pub L 88-352, 78 Stat 241, codified, as
amended, generally at 42 USC § 1971 et
seq (2014).
[17]
Pub L 89-110, 79 Stat 437, codified, as amended, at 42 USC § 1973 et seq (2014).
[18] Attorney
General Holder Speech at the U.S. February 18, 2009 .
Available at: http://www.justice.gov/ag/speeches/2009/ag-speech-090218.html
[19] Rogers Smith, The Constitutional Philosophy of Barack
Obama: Democratic Pragmatism and Religious Commitment, Social Science Quarterly, Vol. 93, Issue 5,
December, 2012, 1251-1271, 151, 1252, 1259, 1260 1262.
[20]
Zachary A. Goldfarb, President Obama to
Launch Major New Effort to Help Young Minority Men Disproportionately Affected
by Prison and Poverty, The Washington Post, February 11, 2014. Accessible
at:http://www.washingtonpost.com/politics/president-obama-to-launch-major-new-effort-on-young-men-of-color/2014/02/11/cc0f0a98-92cd-11e3-b227-12a45d109e03_story.html
[21] See pp. 109-110
(cited in note 2).
[22] Pp. 292-293
(cited in footnote 2).
[23] John E.
McDonough, Inside National Health Reform
(University of California
[24] See Id.
[25]
Independent Business v. Sebelius, No. 11-393, Slip Opinion
(2012). Accessible at: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf
[26]
See McCray v. U.S, 195 U.S. U.S.
[27] U.S., White
House, Remarks by the President at the Signing of Dodd-Frank Wall Street Reform
and Consumer Protection Act, July 21, 2010. http://www.whitehouse.gov/the-press-office/remarks-president-signing-dodd-frank-wall-street-reform-and-consumer-protection-act
[28] Diana
Furchgott-Roth, How Obama’s Gender
Policies Undermine America ( Encounter Books, 2010), 1-47.
[29] Cited by Carl
Horowitz, Obama and Affirmative Action: Why the Second Term Will be Worse, Townhall.com,
January 5, 2013 . http://townhall.com/columnists/carlhorowitz/2013/01/05/obama-race-and-affirmative-action-why-the-second-term-will-be-worse-part-i-n1479259
[30] Id.
[31] Carl
Horowitz, Obama and Affirmative Action: Why the Second Term Will be Worse, Townhall.com,
January 5, 2013 .
[32] U.S.
[33] Remarks by Senator Obama on A More Perfect Union , March 18, 2008 . Huffington Post Transcript at http://www.huffingtonpost.com/2008/03/18/obama-race-speech-read-th_n_92077.html
[35] Holman W.
Jenkins, Jr., Racism Is
Everywhere…Statistically, Wall St. Journal, A11 (January 11, 2012 ).
[36] U.S.
Id
at 110.
[37] Quotes and data
from Mary Jacoby, House Oversight
Democrats Release Perez Testimony, Main Justice—Politics, Policy, and the
Law (March 27, 2013 ).
Accessible at http://www.mainjustice.com/2013/03/27/house-oversight-democrats-release-perez-testimony-on-st-paul/
[38] Id.
[39] Mount Holly Mt. Holly Gardens United States
[41] Kathleen
Miller, Uncle Sam Wants You to Hire More
Vets, Women, and Minorities, Bloomberg’s Business Week, July 19, 2012 .
[42] The
requirements of the affirmative action plan are delineated in the U.S. Code of
Federal Regulations, Title 41§60-2 et seq.
http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=3b71cb5b215c393fe910604d33c9fed1&rgn=div5&view=text&node=41:1.2.3.1.2&idno=41
[43] Defined as
Blacks, Hispanics, Asians/Pacific Islanders/American Indians/Alaskan Natives.
[44] CFR Title 41
§60-2.14 (c) (1).
[45] Id at §
60-2.16(a).
[46] Kathleen
Miller, Uncle Sam Wants You to Hire More
Vets, Women and Minorities, Bloomberg’s Business Week, July 19, 2012 . Accessible at http://www.businessweek.com/articles/2012-07-19/uncle-sam-wants-you-dot-dot-dot-to-hire-more-vets-women-and-minorities
[47] Tara M.
Kennedy, Beware of Increased OFCCP
Activity, Warner Norcross & Judd LLP—Attorneys at Law, September 9,
2012. http://www.wnj.com/Publications/Beware-of-Increased-OFCCP-Activity
[48] Miller, Uncle Sam Wants You to Hire More Vets, Women
and Minorities, Bloomberg’s Business Week, July 19, 2012 (cited and hyperlinked in note 46).
[49] Id.
[50] Id.
[51] Code of Federal
Regulations Title 41 §60-2 et seq (hyperlinked in note 42).
[52] U.S.
[53] Id at
§60-250.44 et seq.
[54] Id at §
60-250.66 et seq.
[55] U.S. Code of Federal Regulations Title 41§60-741 et seq. http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=e0c0f81d1bfd863065fd2cacd8728001&rgn=div5&view=text&node=41:1.2.3.1.11&idno=41
[58] OFCCP News Release on Final Rules on Hiring
Disabled Persons, August
8, 2013 . Available at: http://www.dol.gov/opa/media/press/ofccp/OFCCP20131578.htm
[59] Letter from
Daniel Yager, President and General Counsel HR Policy Association, to Cass
Sunstein, Office of Management and Budget, July 24, 2012. http://www.hrpolicy.org/downloads/2012/OMB_Ltr_on_AES_Cost_Study.pdf
[60]42 U.S.C. §2000e
et seq.
[61] Mia Macy v.
Eric Holder, Equal Employment Opportunity Commission Opinion, ATF 2011-00751http://www.google.com/search?hl=en&source=hp&q=AT+2011-00751&gbv=2&oq=AT+2011-00751&gs_l=heirloom-hp.12...3859.18844.0.25641.13.13.0.0.0.0.250.2017.1j10j2.13.0...0.0...1c.1.aIWACYlWKag
; and Crystal Proxmire, EEOC Seeks Solid
LGBT Discrimination Cases, Between the Lines, January 17, 2013.http://www.pridesource.com/article.html?article=57954
[62] U.S.
[63] U.S.
[64] 42 USC §§12101;
12112 (2013).
[65] Sue Reisinger, EEOC 2012 Report Shows Fewer Discrimination
Suits, More Investigations, Corporate Counsel, November 30, 2012 . Accessible at: http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=1202579787314&EEOC_2012_Report_Shows_Fewer_Discrimination_Suits_More_Investigations&slreturn=20130029202032
[66] Chai Felblum, 3
Take-Aways From the EEOC Strategic
Enforcement Plan, Corporate Law Report, January 9, 2013 . See: http://corporatelaw.jdsupra.com/post/3-take-aways-from-the-eeocs-strategic-enforcement-plan;
and Gary Siniscalo, Lauri A. Damrell, Stephanie Albrecht, EEOC Releases Its Strategic Enforcement Plan, Orrick Employment Law and
Litigation Blog, January 9, 2012. See: http://www.jdsupra.com/legalnews/eeoc-releases-its-strategic-enforcement-20677/
[67] Teresa
Anderson, EEOC Announces Record
Recoveries, Security Management, November 26, 2012 . See: http://www.securitymanagement.com/news/eeoc-announces-record-recoveries-0011062
[68] Timothy Long
and Lauri Damrell, Dealing With Complex
Gender-Discrimination Issues in the Workplace, Law.com, November 28, 2012 . Available at: http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=1202579488303&Dealing_with_Complex_GenderDiscrimination_Issues_in_the_Workplace&slreturn=20130029221125
[69] Catherine M.
DAdalino, Mike Farnam, and Jessica Milko, Hired
& Fired: How Employer Can Avoid Liability, Risk Management, August 20,
2012.Available at: ccchttresident
Up://rmmagazine.com/2012/08/30/hired-fired-how-employers-can-avoid-liability/
[70]
Robert J. Delahunty & John X. Yoo, The
Obama Administration’s Nonenforcement of Immigration Laws, The DREAM Act, and
the Take Care Clause, 91 Texas Law Review,781(2013), 783.
[71]
Michael J. Klarman, From the Closet to
the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford,
2012), 43-44, 46-47.
[72]
Antony Barone Kolenc, Pretend to Defend:
Executive Duty and the Demise of ‘Don’t Ask, Don’t Tell,’ 48 Gonzaga. L.
Rev. 107 (2012/2013).
[73]
Id at 138-140.
[74]
Id at 140-144.
[75]
Pub. L. 104-199, § 3, 110 Stat. 2419, 2419 (1996).http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/html/PLAW-104publ199.htm
DOMA’s sections of LGBT concern are codified at 1 U.S.C. § 7 (2010), and 28 U.S.C. § 1738C (2010).
[76]
Obama’s Gratuitous Insult to Gay Couples,
The Daily Dish—The Atlantic.Com, June 12, 2009 .
[77]
Defendant United States of America’s
Notice of Motion and Motion To Dismiss; Memorandum of Points and Authorities In
Support of Thereof, Smelt v. USA, Case No: SAC V09-00286 Doc (MLGx), August
3, 2009. Available at http://www.scribd.com/doc/16355867/Obamas-Motion-to-Dismiss-Marriage-case
[78]
Id. Court citations and italics added.
[79]
Romer v. Evans, 517 U.S.
[81]
DOMA Do-Over: The Justice Department Gets
it Right This Time, The Washington Post, August 31, 2009, Regional Ed., p.
A14.
[82]
Reply Memorandum In Support of Defendant , United
States of America August 24, 2009 . Smelt v. USA
[83]
Id.
[84]
Oral Arguments in U.S. v. Windsor,
No. 12-307, Washington, D.C., March 27, 2013, p. 12. Oral argument transcript available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-307.pdf
[85]
Id.
[86]
Arthur S. Miller, The President and
Faithful Execution of the Laws, 40 Vand. L. Rev. 389 (March, 1987), 394.
[87]
Id.
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