Obama’s executive order is a nice idea, but it needs to create more than just paperwork


To illustrate a point on executive process, a law professor of mine once muttered, “Executive order and out.” Using law-school style humor (read, not all that funny), he was making a play on the words “over and out” to illustrate the President’s role in actually executing the executive order just signed.

An executive order is a clever caveat to the division of governmental powers which allows the President to quickly make a law in times when federal management necessitates or, say, if Congress isn’t moving fast enough (ahem…Boehner). Congress’ laws directly govern citizens, while a President’s executive order governs the operations of the federal government (indirectly affecting citizens by default). Are executive orders used for political advantage? Sure. Can executive orders be overturned? You bet.

An executive order is really just an instruction handed down from upper management and given to the task force best situated to make it sing. The order becomes law, but unlike a law passing through Congress it comes without a ready-made process to accomplish anything. The “law” remains an abstract notion until it’s actually substantiated.

President Obama’s executive order—signed July 21, 2014—prohibiting federal employers or federal contractors from discriminating against LGBT employees in their hiring, firing, and relational practices is just that. It’s a nice, abstract notion. But it now becomes the responsibility of the Department of Labor Relations to define, fill in, and generally put functionality to the order, all in just 90 days.

Promising in his 2008 campaign to take action against LGBT discrimination in the workplace and with a non-cooperative Congressional House (Boehner has made clear that the Employee Non-Discrimination Act will not be getting a vote this session), this move seems to indicate the formerly reluctant-to-interfere Obama is realizing his time to make good on that promise is running short. Whether the order serves to progress LBGT rights remains to be seen.

Obama’s order (an amendment to previously existing order 11246 issued by President Johnson) to include “sexual orientation” and “gender identity” as protected classes in the federal workplace raises a lot of complicated matters. It may seem trite given the terms’ general understanding, but “sexual orientation” and “gender identity” will need workable definitions that can be practically and universally applied by all federal employers and contractors governed by the order. The defining of these terms alone, however properly done, could make or break the order’s efficacy.

Additionally, the order’s “affirmative action” requirements present a whole new stack of qualifying, logistical, operational, and decisional matters to be resolved. It’s unclear at this point whether current affirmative action standards and processes translate or if the DLR will develop variations in the next three months. 

The President is getting credit for finally delivering on his six-year-old promise to end LGBT workplace discrimination, and we can give him credit for at least showing he’s willing to do more than invite LGBT celebs to dinner or make hopeful speeches. Yet at this point, it’s impossible to say if the EO will open doors to fairness, nudge Congress to pass policy protections for the LGBT community, or just create more bureaucratic paperwork.

Just like the humor present in a law school classroom, the true scope and impact of the President’s order is, as of now, thin.

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