Presidential Regulation of Private Employment: Constitutionality of Executive Order 12954 Debarment of Contractors Who Hire Permanent Striker Replacements

Michael H. LeRoy

Working Papers from University of Illinois at Urbana-Champaign

Abstract: In Executive Order 12954, President Clinton subjected federal contractors to debarment when they hire permanent striker replacements. Employers have sued to overturn the order, arguing that the order amounts to unconstitutional lawmaking. This Article analyzes the constitutionality of Clinton's striker replacement order by examining 113 presidential orders since 1941 that have regulated collective bargaining and employment discrimination in the private-sector. This research shows that presidents have extensively regulated private employment, often without an express delegation by Congress to do so. Furthermore, presidents usually have been motivated by unpopular social goals, such as ending race discrimination, or unpopular economic goals, such as controlling pay raises to fight inflation or seizing private property affected by labor disputes during a war. Nevertheless, only 1 in 113 executive orders has been overturned by the courts. This Article finds that Clinton's order has ample precedent. Furthermore, it presents detailed information about replacement strikes, including some original research showing that these strikes from 1980-1991 have lasted an average of 229 days. Based on evidence that replacement strikes frequently involve serious disruptions, and occasionally are violent, this Article concludes that the order has a rational basis, because government procurement may be adversely affected by replacement strike externalities that typically last about 8 months.

Date: 1995
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Published by Boston College Law Review Vol. 36, No. 2 (March 1996)

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