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Boston College Law Review Volume 37 Article 1 Issue 2 Number 2 3-1-1996 Presidential Regulation of Private Employment: Constitutionality of a Executive Order 12,954 Debarment of Contractors Who Hire Permanent Striker Replacements Michael H. LeRoy Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Constitutional Law Commons, Labor and Employment Law Commons, and the President/Executive Department Commons Recommended Citation Michael H. LeRoy, Presidential Regulation of Private Employment: Constitutionality of a Executive Order 12,954 Debarment of Contractors Who Hire Permanent Striker Replacements, 37 B.C.L. Rev. 229 (1996), http://lawdigitalcommons.bc.edu/bclr/vol37/iss2/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. BOSTON COLLEGE LAW REVIEW VOLUME XXXVII MARCH 1996 NUMBER 2 BOARD OF EDITORS ELIZABETH A. TAYLOR Editor in Chief JENNIFER A. DUNIAP JOHN W. PICKETT Managing Editor Managing Editor LAURIER W. BEAUI'RE JANET M. GROSSNICKLE DUNCAN B. HOLLIS Executive Editor Solicitations Editor Executive Editor CHRISTINA M. LYONS AMANDA G. DEALY R. DANIEL O'CONNOR Executive Editor Executive Editor—Labor Executive Editor KATHARINE A. PACELEA KATHLEEN SABLONE 'Topics Editor Business Manager EDITORS Articles Editors Note and Production Editors BRADFORD L. CASWELL DAVID H. ABBOTT JEFFREY C. MORGAN DANIEL K. HAMPTON LISA M. ALLEN JENNIFER M. MOTLEY KENNETH R. LEPAGE ANDREW P. BORGGAARD THOMAS M. MULLANEY EMILY E. SMITH-LEE EDWARD S. CHENG DOUGLAS J. NASH VIRGINIA W. WEI TIMOTHY G. CROSS KIRSTEN M. NELSON GEOFFREY A. HOWELL KEVIN M. TORMEY ALEXIS L. MOKOTOFF STEFAN J. VOUNESSEA KRISTIN L. WYNNE SECOND YEAR STAFF AMANDA BURLING MARK S. KADUBOSKI KELLY PIKUS BRIAN PATRICK CAREY DANIEL B. KLEIN MEGAN M. ROSE KEITH A. CUSTIS JACOB N. LESSER NICOLE ROSENKRANTZ JASON E. DUNN DAVID H. LONDON ELIZABETH ROVER BAILEY JOHN B. EAGAN CAMERON S. MATHESON TIMOTHY F. SILVA JEREMY I. FARKAS DAVID M. MCINTOSH MICHAEL G. TAUBER TALINE FESTEKJIAN CARTER MORSE SARAH WALTERS THANDA A. FIELDS LAURENCE P. NAUGHTON DANIEL H. WEINTRAUB STUART J. HAMILTON JOHN E. NILSSON F. CHRISTOPHER WETHLY MICHAEL R. HARRINGTON BRIAN O'CONNOR CHARLES F. WILLSON ANNMARIE F. WIXON ROSALIND F. KAPLAN Sum' T FITZGIBBON Manager of Student Faculty Advisor Publications BOSTON COLLEGE LAW SCHOOL ADMINISTRATION REV. J. DONALD MONAN, SJ., Ph.D., President FRANK B. CAMPANELLA, D.B.A., Executive Vice President REV. WILLIAM B. NEENAN, &J., Ph.D., Academic Vice President & Dean of Faculties AVIAM SOIFER, 13.A„ M. Urban Studies, J.D., Dean BRIAN P. LUTCH, A.B., J.D., Senior Associate Dean for Administration CATHARINE WELLS, BA, MA., J.D., Ph.D., Associate Dean for Academic Affairs R. LISA DiLUNA, A.B., Associate Dean, Dean for Students REV.JAMES B. MALLEY, S.J., A.B., S.T.B., J.D., General Assistant to the Dean MARY P. SQUIERS, BA., J.D., LLM., Director of Academic Services LOUISE M. CLARK, B.S., Director of Admissions and Financial Aid ELIZABETH A. ROSSELOT, B.S., MS., Associate Director of Admissions & Financial Aid JEAN E. FRENCH, BA., M.B.A., bisector of Career Services LINDA S. MALLACH, BA., MA., Associate Director of Career Services ROSALIND F. KAPLAN, 13.5„ Ed.M., Manager of Student Publications MARIANNE E. LORD, B.A., MA., Director of Development IRENE M. FRANCESCONI, BA, Director of the Law School Fund CATHY L DERNONCOURT, BA, Director of Alumni Relations TERRI J. ARNELL, BA, Associate Director of Alumni Relations &' Development AMY S. DerBEDROSIAN, BA., M.BA, Director of Communications FULL-TIME FACULTY MICHAEL ANSALDI, A.B., J.D., Associate Professor of DANIEL KANSTROOM, BA., J.D., LL.M., Assistant Law Professor of Law HUGH AULT, A.B., LL.B., Professor of Law SANFOFtD N. KATZ, A.B., J.D,, Professor of Law DANIEL. BARNETT, BA., J.D., Assistant Professor of ELISABETH KELLER, BA., MA., J.D., Assistant 1 Reasoning, Research & Writing Professor of Legal Reasoning, Research & Writing CHARLES H. BARON, A.B., LL.B., Ph.D., Professor THOMAS C. KOHLER, BA, J.D., LL.M., Professor of of Law Law ARTHUR L. BERNEY, A.B., LLB., Professor of Law CYNTHIA C. LICHTENSTEIN, A.B., J.D., M. ROBERT C. BERRY, A.B., LL.B., Professor of Law Comp. L, Professor of Law MARY SARAH BILDER, BA., A.M., J.D., Assistant BRIAN P. LUTCH, A. , J.D., Senior Associate Dean Professor of Law or Administration ROBERT M. BLOOM, B.S., J.D., Professor of Law RAY D. MADOFF, A.B., J.D., LL.M., Assistant E. JOAN BLUM, BA., J.D., Associate Professor of Legal Professor of Law Reasoning. Research Co' Writing McEWEN, BA., J.D., Associate Professor of Legal MARE. S. BRODIN, BA.,J.D., Professor of Law Reasoning, Research Writing GEORGE D. BROWN, A.B., J.D., Professor of Law JUDITH A. McMORROW, BA./B.S., J.D., Associate DANIEL R. COQUILLETTE, A.B., BA., MA, J.D., Professor of Law Professor of Law ALAN D. MINUSKIN, BA., J.D., Assistant Clinical R. LISA DiLUNA, A.B., M.Ed., J.D., Associate Dean Professor of Law PETER A. DONOVAN, AB., J.D., LLM., Professor of FRANCIS j. NICHOL,SON, SJ., A.B., MA, S.T.L, Law LLB., LLM., SJ.D., Professor of Law Emeritus LESLIE G. ESPINOZA, BA., J.D., Assistant Clinical SHARON HAMBY O'CONNOR, BA, M.S.L.S., Professor of Law J.D., M.E.S., Associate Professor of Law ZYGMUNTANTHONY P. FARLEY, B.A., J.B. J.D., Assistant PLATER, Professor BA„ STD,, of Law Professor of Law SCOTT T. FITZGIBBON, BA., J.D., B.C.L., Professor JAMES R. REPETTI, BA., MBA, J.D., Associate of Law Professor of Law JOHN M. FLACKETT, LL.M., Professor of Law JAMF.S S. ROGERS, A.B., J.D., Professor of Law SANFORD J. FOX, A.B., LL.B., Professor of Law FRANCINE SHERMAN, BA, J.D., Associate Professor JANE K. G1ONFRIDDO, A.B. J.D., Associate Professor of Legal Reasoning, Research & Writing of Legal Reasoning, Research & Writing EMIL SLIZEWSKL A.B., LL.B., Professor of Law PFIYLLIS GOLDFARB, BA., Ed.M., J.D., LLM., Emeritus Associate Professor of Law PAMELA J. SMITH, B.S., M.B.A., J.D., Assistant KENT GREENFIELD, A.B., J.D., Assistant Professor of Professor of Law Law ROBERT H. SMITH, BA., _JD., Associate Professor of DEAN M. HASHIMOTO, A.B., M.S., M.P.H., M.D., Law D., As.sistant Professor of Law AVIAM SOIFER, BA., M.Urban Studies, J.D., Dean FRANK It HERRMANN, S.J., A.B., M.Div., J.D., and Professor of Law Assistant Professor of Law MARK SPIEGEL, A.B., J.D., Associate Professor of Law INGRID M. FILLLINGER, A.B., J.D., Associate PAUL It TREMBLAY, .A., J.D., Associate Clinical Professor of Law Professor of Law RUTH-ARLENE W. HOWE, A.B., S.M., J.D., CATHARWT WELLS, BA., MA, J.D., Ph.D., Associate Professor of Law essor and Associate Deanfor Academic A airs RICHARD G. HUB R, B.S., J.D., LLM. , Professor of AlID C. YEN, B.S., M,S,, J.D., Associate fessor Law Emeritus of Law BOSTON COLLEGE LAW REVIEW VOLUME XXXVII MARCH 1996 NUMBER 2 PRESIDENTIAL REGULATION OF PRIVATE EMPLOYMENT: CONSTITUTIONALITY OF EXECUTIVE ORDER 12,954 DEBARMENT OF CONTRACTORS WHO HIRE PERMANENT STRIKER REPLACEMENTS MICHAEL H. LERoY* A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. —Justice Robert H. Jackson, Youngstown Sheet & Tube Co. v. Sawyer' I. INTRODUCTION On March 8, 1995, President Clinton issued Executive Order 12,954, authorizing debarment of federal contractors who hire perma- *Associate Professor, Institute of Labor 8c Industrial Relations and College of Law, University of Illinois. I thank my family, Janet LeRoy, Sarah LeRoy and Benjamin LeRoy, for their encour- agement and patience. In memory of my loving aunt, Margaret Maate, a survivor of the Holocaust, and her husband and son, respectively, Mihaly Maate and Istvan Maate, who died in a Nazi concentration camp. 1 343 U.S. 579, 634 (1952) (Jackson, J., concurring). 229 230 BOSTON COLLEGE LAW REVIEW [Vol. 37:229 nent striker replacements. 2 He cited the need to promote economy and efficiency in the federal government's procurement of goods and services,3 but undoubtedly, his motivation was to woo organized labor after he strongly supported NAFTA4 and failed to persuade Congress to enact a law to ban hiring of permanent striker replacements.' Sew eral prominent employer groups immediately sued to invalidate the order.6 This matter has significance for the continuing public policy de- bate on whether employers should be prohibited from hiring perma- nent striker replacements. But it has greater significance because it exposes a largely unnoticed phenomenon of presidential regulation of private employment practices. Executive orders in World War II directing federal contractors to end race discrimination are the origi- nal source of affirmative action principles. Recently, the Supreme- Court subjected some of these principles to strict scrutiny,? while 2 Exec. Order No. 12,954, 29 C.F.R. §§ 270.1 to —.23 (1995). Id. § 270.2 (a). 4 See Labor Berates Clinton Over NAFTA, Seems Cool Toward Reconciliation, Daily Lab. Rep. (BNA) No. 222, at AA-1 (Nov.
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