Page:CRS Report 95-772 A.djvu/10

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shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.[1]

The Court's reasoning in Korematsu appears to be consistent with a passage from President Lincoln's message to the extraordinary session of Congress convened on July 4, 1861, in which he asks, "[a]re all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated: Even in such a case, would not the office oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?" Since it appears that the Court may view executive orders more leniently when foreign policy and national security are involved, it is appropriate that we review decisions by the courts involving executive orders that effect the social, economic, and political framework of this country.

FDR was the first President to use executive orders in order to establish an antidiscrimination policy.[2] Executive Order 8802 prohibited discrimination in the employment of workers in "defense industries or government because of race, creed, color, or national origin."[3] Presidents Truman, Eisenhower and Kennedy followed FDR's lead in prohibiting discrimination,[4] but it was President Johnson's executive order which eventually created a stir. In 1965, President Johnson issued Executive Order 11,246 which prohibits employment discrimination because of race, color, religion, sex, or national origin by nonexempt federal government contractors and requires inclusion of an affirmative action clause in all covered federal contracts for procurement of goods and services.[5] Moreover, the order empowered the Secretary of Labor to issue rules and regulations necessary and appropriate to fulfill its propose. Based on this provision, the Philadelphia Plan was promulgated under the Nixon Administration.

The Philadelphia Plan required contractors to set specific goals for hiring members of minority groups as a condition for working on federally assisted projects. The courts upheld the legality of this plan and the executive order upon which it was based. In Contractors Association v. Secretary of Labor, the court found a relationship sufficiently established in respect of federally assisted construction projects because of the strong federal interest in ensuring that the cost and progress of these projects were not adversely affected by an artificial restriction of the labor

  1. Id. at 219-220 (emphasis added).
  2. Exec. Order No. 8802, 6 Fed. Reg. 3109 (1941).
  3. Id.
  4. See Exec. Order No. 10308, 16 Fed. Reg. 12303 (1951); Exec. Order No. 10479, 18 Fed. Reg. 4899 (1953); Exec. Order No. 10925, 26 Fed. Reg. 1977 (1961).
  5. 3 CFR, 1964-1965 Comp., p. 339. The status of this executive order and affirmative action programs in general is now in question. In Adarand Constructors, Inc. v. Pena, 63 USLW 4523 (1995), the Supreme Court altered the standard to be applied to affirmative action programs to that of strict scrutiny. Since the Court remanded the case, the interpretation of this standard with regards to affirmative action will be decided in the near future.