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The Real Tyranny in Government Affirmative Action Cases

This is how a 1965 Executive Order made a single agency prosecutor, judge and jury in federal contracting complaints.

On November 29, multinational tech company Oracle filed suit in the United States District Court against Secretary of Labor Eugene Scalia and Office of Federal Contract Compliance Programs (OFCCP) Director Craig Leen. The complaint alleges the OFCCP’s enforcement and adjudication protocols violate the Constitution, the Civil Rights Act of 1964, and the Equal Employment Opportunity Act of 1972, among other things. 

Secretary Scalia should concede Oracle’s claims. 

Scalia should overhaul OFCCP’s procedures to align with due process. And President Trump should direct other executive agencies to ensure their enforcement practices comply with procedural due process. The time is long overdue to question the administrative tyranny that earmarks our regulatory state by combining legislative, executive, and judicial powers in a single authority. 

The OFCCP in the U.S. Department of Labor acts as legislator, prosecutor, judge, jury, and appellate court in the enforcement of Executive Order 11246. The decree, signed by President Lyndon Johnson in 1965, mandates not only nondiscrimination but also affirmative action by federal government contractors, including the elimination of employment standards with a disparate impact on minorities or women.

It is no disrespect to the OFCCP’s mission to question its combination of powers. James Madison, father of the Constitution, explained in Federalist 47, that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self -appointed, or elective, may justly be pronounced the very definition of tyranny.” 

Furthermore, Justice Felix Frankfurter observed in McNabb v. United States in 1943, “the history of liberty has largely been the history of observance of procedural safeguards.”  

The nondiscrimination-affirmative action standards of the OFCCP were decreed by the executive branch alone. The executive prosecutes and adjudicates alleged violations. The executive imposes sanctions, including fines or permanent disbarment from future federal government contracts—a death sentence for many companies. For them, discretion is the better part of valor. They typically negotiate some type of consent decree with OFCCP to avoid the staggering costs of litigation and the prospect of bankruptcy. That explains the dearth of suits challenging its administrative tyranny.

Due process requires an impartial adjudication of legal claims. The United States Supreme Court elaborated in Marshall v. Jerrico, Inc. (1980):

The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process.” 

An initial due process violation at the administrative stage is not cured by a second proceeding in a court of law where impartiality is honored. The Supreme Court held in Ward v. City of Monroeville (1972) that a defendant “is entitled to a neutral and detached judge in the first instance.”

The OFCCP clearly flunks the due process imperative of impartiality. How can an enforcement office remain agnostic about charges it has previously concluded are substantiated?  The doctrine in Anglo-American jurisprudence that a man cannot be a judge in his own case goes back to Dr. Bonham’s Case (1610) more than four centuries ago. Lewis Carroll captured the procedural bias in Alice in Wonderland: “I’ll be judge, I’ll be jury, said the cunning old Fury:  I’ll try the whole case and condemn you to death.”  

The Trump administration’s defense of OFCCP’s administrative tyranny is dumbfounding. Two days before President Donald Trump was inaugurated, the U.S. Department of Labor filed a lawsuit against Oracle America, Inc. alleging systematic compensation discrimination against female, African-American, and Asian employees compared with their Caucasian male counterparts. The suit continues years after President Trump’s inauguration. The OFCCP’s discrimination theory relies on simplistic, undigested pay disparities that ignore many relevant factors, including education, experience, choice of industry and occupation, hours worked, and flexible work schedules. OFCCP is attempting to resurrect a standard of equal pay for work of “comparable value” which the Supreme Court largely dismissed in County of Washington v. Gunther (1981).

Administrative tyranny was born of the fears of the Great Depression that something—anything-must be tried to alleviate economic hardship. Time-honored procedural safeguards succumbed to the tyranny that the ends justify the means. But violations of the Constitution’s separation of powers are not legitimated by longevity. The United States Supreme Court invalidated hundreds of legislative vetoes that had endured for up to 50 years in INS v. Chadha (1983). Similarly, the Court should not shy from ending longstanding procedural tyranny in regulatory agencies generally, including the Federal Communications Commission, the Federal Trade Commission, the Securities and Exchange Commission, and the Federal Reserve Board, if the Trump administration neglects to cure the vice    

Bruce Fein was Associate Deputy Attorney General and General Counsel of the Federal Communications Commission under President Reagan.