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A Federal Judge’s Point of View on the Blacklisting Rule

This week, the House will take an important step toward protecting workers, small businesses, and taxpayers from the harmful consequences of the Obama administration’s “blacklisting” rule. Republicans have warned for some time that the rule is fundamentally flawed and unnecessary because a system is already in place to hold federal contractors accountable and enforce worker protections.

But you don’t have to take our word for it. A federal district judge has also weighed in. Hours before the rule was set to go into effect, Judge Marcia Crone issued a preliminary injunction blocking enforcement of the rule. Her decision reflects many of the same concerns Republicans continue to raise, specifically that the rule: 
  • 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


It's clear the blacklisting rule has serious flaws. Not only does it threaten constitutional rights, but it’s so unworkable that it would undermine the very system that’s intended to protect workers. Who could possibly gain? 

The answer is union leaders and trial lawyers. As Rep. Bradley Byrne (R-AL) stated at a House Committee on Education and the Workforce hearing on the rule:


This could be particularly devastating for employers that are the target of union corporate campaigns or competitors who simply want a competitive edge against their competition. This highly elevates the risk of frivolous complaints and the loss of business.


We cannot accept a rule designed to cater to powerful special interests at the expense of workers, small businesses, taxpayers, and even our national security. Congress has a clear choice this week and can put a stop to this partisan regulatory scheme once and for all.

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