Page:CRS Report 95-772 A.djvu/11

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pool caused by discriminatory employment practices.[1] Thus, the court made a connection between the executive order and the Federal Property and Administrative Services Act of 1949 (FPSA or Procurement Act)[2] that was sufficient to uphold Executive Order 11246.[3]

Similarly, the court in AFL-CIO v. Kahn,[4] established a "nexus" test in upholding President Carter's executive order directing the Wage and Price Stability Council to establish voluntary wage and price standards for noninflationary behavior for the entire economy and making compliance with those guidelines a factor in determining whether a company could receive a government contract.[5] The court found that there was a sufficiently close nexus between Executive Order 12092 and the efficiency and economy criteria of the Procurement Act. The court specifically emphasized the importance of the wage and price standards and likely savings to the Government.

On March 10, 1995, President Clinton issued Executive Order 12954 prohibiting the use of striker replacements by employers who are performing under federal contracts.[6] Subsequently, the U.S. Chamber of Commerce and other employee associations brought actions for declaratory and preliminary injunctive relief against the Secretary of Labor's enforcement of the executive order.[7] They alleged that the executive order was contrary to the National Labor Relations Act, the Procurement Act and the Constitution. The United States District Court for the District of Columbia did not reach the substantive issues, instead dismissing the action for lack of ripeness.[8] On expedited appeal the Court of Appeals for the District of Columbia reversed the District Court's determination and remanded the case for further consideration.[9] On remand, the District Court again ruled in favor of the executive order.[10] The District Court held that the challenge was not judicially reviewable since the Procurement Act vests broad discretionary authority in the President. In the alternative, the District Court also rejected the appellants' statutory claim on the merits, reasoning that under the executive order the government was acting in a

  1. 442 F.2d 159 (3d Cir. 1971).
  2. 40 U.S.C. § 486(a).
  3. But see Chrysler Corp. v. Brown, 441 U.S. 281 (1978) (the Court casts doubt upon the "nexus" between Executive Order 11246 and the Procurement Act since "nowhere in the Act is there a specific reference to employment discrimination." Id. at fn. 34. However, the Court did not determine the precise source of authority for the executive order since it held that the regulation being challenged there was not authorized by any of the arguable statutory grants of authority.
  4. 618 F.2d 784 (D.C.C. 1979) (en banc).
  5. 43 Fed. Reg. 51375 (1978).
  6. 60 Fed. Reg. 13023 (March 10, 1995).
  7. U.S. Chamber of Commerce v. Reich, 886 F.Supp. 66 (D.D.C. 1995).
  8. Id.
  9. U.S. Chamber of Commerce v. Reich, 57 F.3d 1099 (D.C.Cir. 1995).
  10. U.S. Chamber of Commerce v. Reich, 897 F.Supp. 570 (D.D.C. 1995).