News Analysis: Obama Executive Order Decision Raises Question Whether He’s Broken 2008 Pledge

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When President Obama’s press secretary on Thursday, April 12, explained the president’s decision not to sign an executive order banning federal contractors from discriminating based on sexual orientation or gender identity, Jay Carney told reporters that “[t]he president is dedicated to securing equal rights for all LGBT Americans, and that is why he has long supported an inclusive Employment Non-Discrimination Act.”

As a candidate for president, though, Obama told an LGBT political group in 2008 that — in addition to supporting the passage of ENDA — he would “support” a “formal written policy of non-discrimination that includes sexual orientation and gender identity or expression … for all Federal contractors” if elected president.

The survey, on which Metro Weekly exclusively reported at the beginning of March, was submitted to the Houston GLBT Political Caucus and signed by Obama on February 25, 2008. It contained four separate questions about employment nondiscrimination — questions 4, 5, 6 and 7 — covering the candidate’s campaign policy and whether it included sexual orientation and gender identity and would apply to his office if elected, whether the candidate would “support such a policy for all Federal employees,” whether the candidate would “support such a policy for all Federal contractors,” and whether the candidate would support ENDA.

HGPC-2.pngAt the time, Obama stated that his campaign had and office would have such a nondiscrimination policy. In one-word “yes” answers, he stated that he would support such a policy for federal workers and for federal contractors. As to ENDA, he stated he would “place the weight of my administration” behind “a fully inclusive” ENDA.

On Thursday, however, Carney told reporters that “our approach is to focus on trying to build and expand support for passage of ENDA.” As to the proposed executive order, he says, “I can tell you that at this time we are not considering such an executive order.”

Does the decision, announced on Wednesday, April 11, not to sign such an executive order at this time constitute Obama having broken his commitment to support a federal contractor nondiscrimination policy as president?

Unlike his commitment to ENDA, the president did not explicitly state his support for signing an executive order to realize his stated support for federal contractor sexual orienation and gender identity employment nondiscrimination.

HGPC-3.pngAt the same time, however, an executive order is the means by which federal contractor nondiscrimination policy has been set in the United States for more than 50 years. Since 1965, when President Lyndon B. Johnson signed Executive Order 11246, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has ensured that all federal contractors doing more than $10,000 in government contract work in a year comply with the executive order’s equal employment opportunity policy. This prohibits discrimination based on race, color, religion, sex, or national origin. It does not include sexual orientation or gender identity. 

What’s more, the call to expand Executive Order 11246 is similar to the expansion that President Bill Clinton made in May 1998 by adding “sexual orientation” to Executive Order 11478, which prohibits discrimination in the federal workforce.

As such, it’s hard to believe — and no administration officials have claimed — that another administrative route to promulgating a policy of protecting federal contractors from discrimination based on sexual orientation or gender identity is in the works. 

It also is true that the administration announced only that Obama would not be signing such an executive order “at this time” and could decide later to sign such an order. That, technically, might prevent a group like Politifact from deeming a “broken pledge” claim to be true. 

But, unlike the legislative commitments made by a candidate, this was a request to commit to supporting a policy as president. Obama responded “yes” — without condition — and there is no other institutional barrier, such as Congress, to prevent the signing of an executive order implementing that policy.

Asked today whether Obama believes the decision not to pursue the executive order at this time constitutes a broken pledge, White House and Obama campaign spokespeople did not respond to emailed requests for comment.

READ the questionnaire: Houston GLBT Political Caucus.pdf

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