The One Democratic Priority President Obama Won’t Take Executive Action On

His actions on pay equity has some advocates wondering when he’ll sign an order to ban LGBT workplace discrimination.

Brenda Fernandez, along with other protesters and the lesbian, gay, bisexual, and transgender (LGBT) Americans make their views known as they stand outside a President Barack Obama fundraiser at the Fillmore Miami Beach at Jackie Gleason Theater on June 26, 2012 in Miami Beach, Florida. 
National Journal
Elahe Izad
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Elahe Izad
April 8, 2014, 12:09 p.m.

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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