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Federal Judge Reaffirms What We’ve Been Saying All Along

It’s only been a month since the Obama administration finalized a flawed and redundant blacklisting rule. Republicans have repeatedly raised concerns that this executive overreach would strip employers of due process rights and make the current system—which is designed to protect workers—unworkable. At a hearing on the rule last year, Rep. Bradley Byrne (R-AL) stated:


This executive order represents an overstep of authority by the president at the expense of employers and workers.


Fortunately, the day before the administration had planned to begin implementing this overreaching regulatory scheme, a federal judge issued a ruling temporarily stopping it in its tracks. Judge Marcia Crone echoed many of the concerns Republicans continue to raise:

  • Exceeds executive authority: “The Executive Branch does not possess similar authority to modify Congressional enactments such as the [Federal Arbitration Act]. Such overstepping of authority in the guise of enhancing federal procurement practices is unwarranted.” – Judge Crone, page 28

  • Threatens due process rights: “The [Federal Acquisition Regulation (FAR)] Rule likely violates the due process rights of Plaintiffs’ government contractor members by compelling them to report and defend against non-final agency allegations of labor law violations without being entitled to a hearing at which to contest such allegations.” – Judge Crone, page 22

  • Infringes on free speech: “The Executive Order’s unprecedented requirement, as implemented by the FAR Rule and [Department of Labor (DOL)] Guidance, thus compels contractors to engage in public speech on matters of considerable controversy adversely affecting their public reputations and thereby infringing on the contractors’ rights under the First Amendment.” – Judge Crone, page 18

  • Creates a confusing maze of red tape: “An example of the unexplained inconsistencies in the FAR Rule is how the cumbersome new process can possibly avoid bogging down the already overloaded procurement process … The complexity of the DOL Guidance alone is sufficient reason to believe that this new system is likely to lead to delays and arbitrary and inconsistent results in the assessment of contractor responsibility, to the detriment of the procurement system.” – Judge Crone, page 25

The goal behind the administration’s overreaching rule? The Wall Street Journal notes this “has been a top priority of organized labor” and the “point is to provide unions with leverage to extract concessions from contractors that either aren’t unionized or that are negotiating with unions over a contract.” 

Instead of catering to the demands of union leaders, the administration should have been spending its time and resources using the tools they already have to hold federal contractors accountable. 

As Education and the Workforce Committee Chairman John Kline (R-MN) said in response to the judge’s decision, “[the] best way to ensure fair pay and safe workplaces is to enforce current protections, and in light of this decision, it’s time for the administration to do just that.” 


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