Over the past few months, President Obama has either picked up his pen or has seriously considered doing so on a number of big-ticket priorities for the Left — ranging from a minimum-wage increase to executive orders relating to equal pay, which he signed Tuesday.
But while the president has taken executive action on those issues, there’s another major one he hasn’t addresed with an executive order, much to the chagrin of LGBT advocates: enacting protections resembling those that would be provided under the Employment Non-Discrimination Act.
“It’s a total head-scratcher. The president has taken action before on issues positively affecting our community that have required more of his political capital,” says Human Rights Campaign spokesman Fred Sainz. “So, it makes no sense why he wouldn’t immediately proceed to protect at least 16 million workers. This was a campaign promise made almost six years ago.”
In November the Senate passed ENDA, which bans workplace discrimination based on gender identity and sexual orientation. Since then, advocates have been pushing the president to sign an executive order that would ban LGBT workplace discrimination for federal contractors. In March, more than 200 Hill Democrats signed a letter urging Obama to take such action.
The White House position is that it prefers ENDA to pass Congress and doesn’t want to take the onus off of the legislature to move the bill. Unlike a minimum-wage increase to $10.10 and the Paycheck Fairness Act — both of which may not even make it out of the Democratic-controlled Senate — ENDA cleared the upper chamber with bipartisan support.
“The fact is that legislation, which has moved in the Senate, if it were to be passed by the full Congress and signed into law, would have the greatest benefit when it comes to ensuring the rights of LGBT individuals,” White House press secretary Jay Carney said in March. Carney has also said an ENDA-like executive order would be redundant if ENDA passed, a point that advocates have pushed back on.
But just because ENDA made it through the Senate doesn’t mean the House will take it up. (And strong bipartisan support in the Senate sure did a lot push the House to take up immigration reform, right?) House Speaker John Boehner has said ENDA could lead to costly and frivolous lawsuits and that LGBT discrimination is already covered by existing law. Oh, and he’s already told other lawmakers that ENDA won’t pass this year.
Executive orders have obvious flaws for advocates. They are temporary and limited in scope. Some — particularly a potential one regarding deportation enforcement — can also serve as a signal of the low likelihood of Congress moving on related legislation. Republicans have taken major issue with executive actions issued by Obama, saying that they are contributing to a distrust of the administration to enforce the law.
“His difficulty is trying to give Congress the opportunity to do its work,” House Democratic Caucus Chairman Xavier Becerra said. “If unfortunately, Republicans in the House continue to be obstructionists and decide they’d rather be AWOL than get their work done, it would not surprise me if you see the president continue to use his executive authority to try and do the things he can.”
The House Progressive Caucus pushed the administration hard on the executive action that raised the minimum wage for employees of federal contractors. Caucus Cochair Raul Grijalva said there’s a frustration among caucus members that Obama hasn’t signed an ENDA executive order, and that more pressure needs to be exerted on the administration.
“He becomes the right, moral option, and the last option to do something facing discrimination for the communities,” Grijalva said of Obama. “I don’t think the White House likes to be put in this position, put in that role, but that’s the reality as long as these folks are blocking everything.”
Obama moving on executive orders, even if they are limited in scope, also serves to elevate Democratic priorities in a midterm year. The actions taken Tuesday prohibit retaliation against federal contractors’ employees for sharing wage data with each other and direct the Labor Department to collect wage data from them. Obama signed them on Equal Pay Day, which also coincides with a push in the Senate this week to pass the Paycheck Fairness Act. The bill mirrors the executive actions, but applies to all employers, and it also makes employers liable for civil lawsuits.
Advocates for executive actions that just affect federal contract workers argue that they translate into real-life benefits, even if for just a segment of the American population.
“The same logic that the White House is using for all of their executive orders applies to this one — there’s no difference and to suggest otherwise fails logic,” Sainz said of an ENDA executive action. “Congress isn’t acting and the country can’t wait.”
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