NCLA Explains Why DOL’s Govt. Contractor ‘Equal Employment Oppty.’ Reporting Was Never Legal

Comments Re: Rescission of Executive Order 11246 Implementing Regulations

Washington, DC, Sept. 17, 2025 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance submitted comments today supporting the Department of Labor’s proposed rescission of its unconstitutional affirmative action and anti-discrimination compliance system for government contractors. The current system places intense, costly reporting burdens on businesses while exposing them to enforcement risks—all without Congressional authorization. DOL’s Office of Federal Contract Compliance Programs (OFCCP) has run its elaborate enforcement and adjudication apparatus overseeing government contractors and subcontractors for nearly 60 years under President Lyndon Johnson’s Executive Order 11246, which President Trump’s own Executive Order rescinded in January. DOL now cites Trump’s E.O. as its only basis for rescinding E.O. 11246’s implementing regulations.

As a civil rights organization, NCLA takes accusations of discrimination seriously and does not condone federal contractor discrimination. At the same time, as an organization that takes the Constitution seriously, NCLA recognizes the role Congress must play in creating any such protections—including OFCCP’s enforcement and adjudication apparatus—through constitutionally prescribed channels. With these considerations in mind, NCLA urges DOL to determine that E.O. 11246 was always constitutionally invalid because Congress never authorized it. This step would clarify contractors’ regulatory reporting responsibilities and enhance the law’s future stability.

Neither the President nor an agency possesses any inherent power to legislate, and Congress never passed a law authorizing E.O. 11246 or the regulations implementing it. So, these executive actions usurped legislative power from Congress, and judicial power to adjudicate regulatory enforcement cases from the courts, violating the vesting clauses in Article I and III of the Constitution. Congress knows how to design and authorize anti-discrimination enforcement regimes, but it did not do so here.

Some recent presidential administrations have suggested that the Federal Property and Administrative Services Act of 1949 authorized E.O. 11246. But any reliance on the so-called Procurement Act as supplying statutory authority for E.O. 11246 is, at best, an unconvincing rationalization after the fact. Moreover, this interpretation comes decades too late to have any convincing insight into the statute’s original meaning. DOL and OFCCP should disclaim any reliance on the Procurement Act and base the rescission on utter lack of statutory authority.

NCLA released the following statements:

“To create lasting change, the Department of Labor should pull out this unauthorized program root and stem. It can do so by finding that there was no statutory authorization supporting E.O. 11,246 then or now. If  DOL does not take this extra step, then the risk of its actions being reversed by a future Administration will be far greater.”
— Kara Rollins, Litigation Counsel, NCLA

“Timely for Constitution Day, NCLA is pointing out another Administrative State monstrosity. For 60 years, nearly all OFCCP’s enforcement and adjudication apparatus has operated without statutory authority. Shameful!”
— Mark Chenoweth, President, NCLA

For more information see the comments page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Joe Martyak
New Civil Liberties Alliance
703-403-1111
joe.martyak@ncla.legal

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