Last week traditional and social media lit up after the White House disclosed President Obama's intention to sign an executive order prohibiting workplace discrimination against gay, lesbian, bisexual and transgender workers of federal contractors and the federal government. It is a sweeping order that affects 24,000 companies employing roughly 28 million workers, or about one-fifth of the nation's workforce. Advocates have worked toward this day since Obama took office. We should certainly celebrate but we should also recognize the limits of these orders and the fragility of the rights recognized and protected by them.
During President Obama's tenure, the LGBT community has seen an unprecedented recognition of our basic rights at the national level. Almost every victory, however, is because President Obama, not Congress, took action. Congress has done almost nothing to advance our rights and with the Bipartisan Legal Advisory Group's defense of DOMA it has, at times, actively sought to prevent recognition of them. Even when Congress repealed Don't Ask Don't Tell it didn't prohibit discrimination against gay and lesbian service members, President Obama did that through Pentagon policy. It was President Obama that directed the Office of Personnel Management to ensure that all gay and lesbian federal employees receive domestic partner benefits. It was President Obama that prohibited health care facilities that receive federal funding from discriminating based on sexual orientation in hospital visitation rights.
President Obama even aided the Supreme Court's decision in United States v. Windsor by declaring the law unconstitutional and refusing to defend it in court. Justice Scalia went so far as to argue in his dissent that President Obama manufactured jurisdiction by refusing to pay the tax refund thus creating the "controversy" necessary to reach the Court. And after Windsor, President Obama decided that the federal government would recognize all same-sex marriages regardless of where the couple lived. Although the pace of change has at times frustrated the LGBT community, he has been a staunch advocate during his six years in office.
Unfortunately, executive orders are a slender reed on which to balance such important human rights. When the next president takes office he or she can, with the stroke of a pen, wipe away all these gains. The so-called Mexico City Policy provides a potent example. The Policy requires all NGOs that receive federal funding to refrain from promoting or performing abortion services in other countries. President Reagan adopted the policy by executive order in 1984; President Clinton rescinded the order when he took office; President Bush reinstituted the order and, you guessed it, President Obama rescinded it. Family planning services blink on and off like a traffic light with each new president.
Even if the next president didn't explicitly rescind these orders, he or she could simply ignore them. President Bush never explicitly repealed the executive order prohibiting discrimination based on sexual orientation in federal civilian workforce but he did insert a religious exemption provision and his Special Counsel Scott Bloch argued during a Senate Hearing in 2005 that the order was "unenforceable." In 2013, a report issued by the Inspector General's Office concluded that Bloch had decided to reverse these protections before he took office and made doing so one of his "highest and most immediate priorities for action [] under his direction." It would be naïve to believe that President Bush was ignorant of Bloch's intentions or actions.
To be sure, executive action has played a critical role in our nation's march towards equality. In its absence, the trajectory of our nation's civil rights movements would have been much different. How would the abolition of slavery have progressed if not for President Lincoln's Emancipation Proclamation? How long would segregation have lingered if not for President Truman's order to desegregate the military or President Eisenhower's decision to send the National Guard to Little Rock? But executive power is limited -- both in scope and in time. Ultimately, we need congressional action. The midterm elections will be held on November 4, 2014, and 35 seats on the U.S. Senate and 435 seats on the U.S. House of Representatives are up for grabs. Statistically, midterm elections tend to go heavily against the party of sitting presidents, more so during the second midterm of a presidency (sixth year).
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