Chair Foxx, Ranking Member Cassidy Call Out Biden Resurrecting Unconstitutional Obama Labor Advisor Policy
WASHINGTON, D.C., March 16, 2023
Today, House Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC) and Senate Health, Education, Labor and Pensions (HELP) Committee Republican Leader Bill Cassidy (R-LA) rebuked the Biden administration’s policy that inserts “labor advisors” across the executive branch to assist labor unions in the acquisition of federal contracts. The lawmakers point out that President Biden’s proposal is substantially similar to an Obama-era policy that was deemed unconstitutional by a federal district court and overturned by a successful 2017 Congressional Review Act (CRA) resolution.
On January 10th, Office of Management and Budget (OMB) Director Shalanda Young and then-Secretary of Labor Marty Walsh issued a joint memorandum directing all federal departments and agencies to designate a labor advisor for federal contracting matters. The policy also forces federal procurement officers to consult the labor advisors regarding a federal contractors’ labor history. With little to no scope of what information the advisors can provide the procurement officers, the policy could allow misguided or erroneous criteria to be included in the procurement process.
“Based on our review, the joint memorandum appears to resurrect unconstitutional policies included in an Obama-era Executive Order (EO) that was enjoined by the U.S. District Court for the Eastern District of Texas in 2016 and that was subsequently disapproved by a joint resolution of Congress that was signed by President Trump in 2017,” wrote the lawmakers. “It is well-settled law that government contractors are entitled to the same First Amendment protections as other citizens…”
“It is unclear to us how labor advisors will work with acquisition authorities; what types of tools, protocols, or information they will share with contractors; or whether the joint memorandum will be required or enforced by DOL,” continued the lawmakers. “Therefore, in order to understand the administration’s decision to announce policy that may violate an employer’s due process rights in a joint memorandum rather than by rulemaking, we ask that you provide the following information by March 30, 2023.”
Additionally, Foxx and Cassidy today urged the Government Accountability Office (GAO) to issue a formal legal opinion as to whether the policy violates the “substantially similar” prohibition of the CRA, which prevents an agency from issuing regulations that are similar to those that have been overturned by a joint resolution of disapproval under the CRA. The lawmakers also urged the GAO to examine if the policy meets the definition of a rule under the CRA, which would allow for another resolution of disapproval. Click here to read the full letter to the GAO.
Read the full letter to OMB Director Young and Acting Labor Secretary Julie Su here.