Amicus Brief: Oracle America Inc. v. U.S. Department of Labor, et al.
AMICUS BRIEF SUMMARY
NCLA filed an amicus brief in the U.S. District Court for the District of Columbia in support of Oracle’s case against the Department of Labor (DOL). Oracle challenged a portion of the regulations that set up the enforcement and adjudication system in the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).
NCLA objected to OFCCP’s regulatory regime, because Congress never authorized DOL to internally adjudicate race or sex discrimination claims. Therefore, NCLA believed the Court had to grant Oracle summary judgment, and OFCCP had to stop prosecuting these cases internally unless Congress authorized it.
NCLA is concerned with DOL’s use of unconstitutional ALJs at OFCCP. Like ALJs at SEC , DOL’s ALJs enjoy more than one layer of for-cause removal protection. The Supreme Court has held multiple layers of protection from removal to be a violation of Article II’s Take Care Clause, which obliges the President to ensure that the laws are faithfully enforced. The Supreme Court has ruled that the President is handicapped in carrying out that duty if his executive officers (like ALJs) are too difficult to remove.
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COURT: U.S. District Court for the District of Columbia
DOCUMENT: No. 19-cv-3574 (APM)
ATTORNEYS FOR AMICUS CURIAE NEW CIVIL LIBERTIES ALLIANCE: Kara Rollins, Richard A. Samp
FILED: May 1, 2020
May 1, 2020 | Amicus Curiae Brief of the New Civil Liberties Alliance in Support of Oracle America, Inc.’s Motion for Summary Judgment
May 4, 2020 | NCLA Amicus Brief Exposes Decades-Old Unconstitutional Enforcement Regime at DOL
Washington, DC (May 4, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group filed an amicus brief Friday in the U.S. District Court for the District of Columbia in support of Oracle’s case against the Department of Labor (DOL). Oracle has challenged a portion of the regulations that set up the enforcement and adjudication system in the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). NCLA objects to OFCCP’s regulatory regime, because Congress never authorized DOL to internally adjudicate race or sex discrimination claims. Therefore, NCLA believes the Court must grant Oracle summary judgment, and OFCCP must stop prosecuting these cases internally unless Congress authorizes it.
OFCCP purports to draw its authority from an Executive Order issued by President Lyndon Johnson in 1965, which sought to establish nondiscrimination and affirmative action practices in government contracting. These requirements are mostly enforced by including an Equal Opportunity Clause in federal government contracts, which places a compliance obligation on government contractors, and subcontractors.
But there is one major problem—the Executive Order cited no statutory support authorizing this program’s existence—and there is not any. Under the Constitution, Congress has to pass a law before DOL can authorize its administrative law judges (ALJs) to issue binding rulings. Because neither the President nor a federal agency has any inherent power to make law, it appears DOL has been operating a completely unconstitutional enforcement program for the past 40 years!
Under the original 1965 Executive Order, OFCCP would refer potential enforcement cases to the Department of Justice (DOJ) or the Equal Employment Opportunity Commission (EEOC). But in 1977 DOL issued a Final Rule citing the 1965 Executive Order as its sole authority. Since that time OFCCP has instituted enforcement proceedings for violating the Equal Opportunity Clause based on triggering events like the results of complaint investigations and compliance reviews, the analysis of a contractor’s affirmative action program, or a contractor’s refusal to take certain actions. Although OFCCP’s cases dealing with veterans and disabled employees do have a statutory basis, its other coverage areas (including alleged disparate impact race and sex discrimination) do not.
DOL contends that the 1949 Procurement Act authorizes OFCCP. But that act only gave power to write implementing regulations to the General Services Administration (GSA), not to DOL. And when Congress has created ALJs at other agencies for enforcement purposes, it has provided separate statutory authority for them (not relied on the Procurement Act). So, this latter-day rationalization for the 1977 Final Rule is unconvincing.
NCLA is also concerned with DOL’s use of unconstitutional ALJs at OFCCP. Like ALJs at SEC (whom NCLA is currently suing in the Fifth, Ninth, and Eleventh Circuits over this same issue), DOL’s ALJs enjoy more than one layer of for-cause removal protection. The Supreme Court has held multiple layers of protection from removal to be a violation of Article II’s Take Care Clause, which obliges the President to ensure that the laws are faithfully enforced. The Supreme Court has ruled that the President is handicapped in carrying out that duty if his executive officers (like ALJs) are too difficult to remove.
NCLA released the following statement:
“NCLA does not support race or sex discrimination in any way, shape, or form. As a civil rights organization, we support efforts to root out discrimination from federal contracting. However, hiring and pay discrimination charges are serious allegations, and parties facing such charges deserve due process. Instead, OFCCP has set up an internal adjudication regime without Congressional authorization overseen by ALJs who enjoy unconstitutional layers of protection from removal. Until Congress can fix it, OFCCP’s unconstitutional regime needs to stop.”
—Kara Rollins, Litigation Counsel, 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.
For more information visit us online at NCLAlegal.org.
December 18, 2020 | Midnight Regulation: The State of Regulations thru January 20 is Uncertain
Just as the cherry blossoms bloom here every spring, another regular D.C. occurrence is blooming—midnight regulations. A product of the modern administrative state, the midnight regulation period is the time between a presidential election and the inauguration of a new president, often from a different party, which is marked by increased regulatory activity.
Using the midnight period to push through remaining regulatory wish list items before power is transferred is a bipartisan tradition. Some scholars have estimated that there is an average 17% increase in the number of pages in the Federal Register during the midnight regulation period. The increase is slightly higher when, as is the case this year, the president in office loses re-election.
What kind of numbers are we talking about when we say there is an increase in number of pages in the Federal Register during this period? Tens of thousands. In its last month, the Carter Administration managed to publish more than ten thousand pages of new rules. The Clinton Administration published more the 26,542 pages in the Federal Register during the midnight regulations period.
The increase in regulatory activity has also been observed by comparing the number of major rules, as defined by the Congressional Review Act, 5 U.S.C. § 801 et seq. (“CRA”), published in a Presidential year. For example, the Bush Administration published 105 major rules in 2008 compared to an average of 56 major rules per year between 2001 and 2007. Similar increases are seen when looking at only the number of major rules published in the second half of the year by presidential administrations. For example, during the second half of 2008, there was a 53% increase in number of major rules the Bush Administration published compared to the second half of 2007.
The volume of midnight regulations can also be measured by comparing the average number of rules an administration issues to the number of rules issued per month during the midnight period. As at least one observer has noted, in 2016, the Obama Administration averaged about 45 rules per month. There was a marginal, but not significant, increase to 57 rulemakings in November 2016. But there was a noticeable uptick in December 2016 with 99 regulations being issued. In the waning days, the Obama Administration issued a staggering 61 rules in only 12 working days.
So, where does this leave us in the last days of the Trump Administration? It is likely too early to say. There is little reason to think the Trump Administration will buck the midnight regulation trend but how it will compare to his predecessors’ is unclear. As Susan E. Dudley of the GW Regulatory Studies Center recently noted, the Trump Administration still has some 146 significant regulations pending, but it is unclear if that number under or overestimates the total volume of midnight regulations.
Another issue to consider is that while midnight regulations are measurable in various ways there are other actions agencies can take during this transition period that may greatly impact the administrative state and regulated entities—midnight enforcement actions. Like midnight regulations, midnight enforcement actions often embody the policies of the outgoing administration—a last chance to project the administration’s priorities before leaving office. But unlike midnight regulations, which happen openly on the pages of the Federal Register, midnight enforcement actions are harder to track.
Having practiced administrative law for many years, my colleagues here at NCLA and I are all too familiar with regulatory enforcement complaints being filed in the days leading up to the Inauguration, sometimes even after months or years of silence from agency enforcement staff, see, e.g., Oracle America Inc. v. U.S. Department of Labor, et al. These types of lawsuits are particularly pernicious because they are not subject to the same revocation or review procedures, like the CRA, that midnight regulations are.