Doing Good the Wrong Way: The Case for Delimiting Presidential Power Under Executive Order No. 11,246

Authors

Andrie K. Blumstein

First Page

921

Abstract

The Note has demonstrated that the concept of affirmative action as embodied in the Executive Order Program induces race-conscious employment programs by federal contractors in contrast to the norm of race-neutral decision making imposed by the Civil Rights Act of 1964. The Note has also argued that a nexus analysis must define the parameters of executive authority to promulgate the Executive Order Program. In other words, there must be a close relationship between the alleged source of executive authority and the President's actual exercise of that authority...

This Note attempts to refine the Presidential power analysis of Youngstown Steel and to reconcile the opinions of Justices Black and Jackson. The Note argues that finding a source for Presidential power (whether statutory or constitutional) and determining whether there are independent limits on Presidential power, are two distinct issues. Going beyond Justice Black's discussions of Presidential authority, Justice Jackson suggested that authorized Presidential power may still conflict with separately existing legislative or constitutional prohibitions on the exercise of Presidential power...

The Note utilizes the recent decision in United Steel-workers v. Weber as a vehicle for discussing the incompatibility of Title VII with the provisions of the Executive Order Program. In sustaining a race-conscious job training quota program, the Court carved out an exception from Title VII's race-neutral language to permit voluntary affirmative action programs. The Weber court construed Title VII to permit private managerial decisions with respect to fair employment matters, with the sole proviso that private employers could not discriminate on the basis of race or sex...

Finally, this Note argues that the best structural analogue to the Executive Order Program is Title VI of the Civil Rights Act of 1964 because both use the threat of a federal funds-cutoff as their primary enforcement mechanism. The federal funds-cutoff is a major weapon in the fight against discrimination under Title VI, but section 604 explicitly withdraws that extremely potent weapon from the federal government's arsenal in the area of employment discrimination, leaving the terms and procedures of Title VII as the exclusive remedy for claims of employment discrimination.

Recommended Citation

Andrie K. Blumstein, Doing Good the Wrong Way: The Case for Delimiting Presidential Power Under Executive Order No. 11,246, 33 Vanderbilt Law Review 921 (1980)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol33/iss4/3