
For a long time, when I heard the phrase “hoist by his own petard,” I pictured some sort of medieval knight with a long lance, which somehow reached backward, hooking onto the seat of his pants and lifting him in the air with the force of his own jousting. I know I’m not the only one who imagined this.
But no—a petard is a type of small bomb. In the metaphor, the fool blows himself up.
I feel even more confident that many of those who celebrate President Trump’s incipient war on DEI were also very much against President Biden’s COVID-vaccine policies. How ironic it would be if their successful attacks on the latter helped Trump’s opponents defeat the former.
The FCA Gambit
Trump’s executive order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” aims to use the threat of Department of Justice enforcement of the False Claims Act (FCA) to pressure federal contractors and grant recipients to abandon DEI programs. In essence, the order requires contractors to certify that their DEI policies do not violate federal anti-discrimination laws, particularly Title VII of the Civil Rights Act. If it turns out that they do, their certifications could be deemed “false,” and they could be exposed to ruinous FCA penalties. In addition, the law encourages whistleblowers in such companies to report violations, in return for a potential share of any DOJ recovery.
But it is not clear that President Trump has the authority to issue such an executive order. And it is a series of challenges to Biden’s vaccine mandates, as well as his minimum wage policy, that show why.
Red States Attack Executive Authority Over Contractors
In 1949, Congress enacted the Federal Property and Administrative Services Act (FPASA) to create the modern system of federal government procurement. For decades afterwards, presidents issued executive orders directing that federal contractors comply with certain requirements, sometimes seemingly aimed at advancing policies rather afield of ordinary contract management concerns. And for decades, the courts allowed it.
But in the wake of the COVID pandemic, Biden issued Executive Order 14042, requiring contractors to have their employees vaccinated. Opponents of vaccine mandates—including a number of red state governments—filed challenges, asserting that the order exceeded the President’s authority under FPASA.
Several courts agreed. Reviewing the history of FPASA and executive orders regarding contracting, the Sixth Circuit concluded that the statute was meant to help in “making the government’s entry into contracts less duplicative and inefficient”—that is, that it was focused on “government efficiency, not contractor efficiency.” Then it gave that requirement teeth, holding that Biden’s order did not meet the standard because it was directed to the conduct of contractors, rather than that of the government. Thus, it held the order invalid.
In separate cases brought by other states, the Fifth and Eleventh Circuits went further. Both held that Biden’s vaccine order ran afoul of the “major questions doctrine,” which requires that policy changes of “vast economic and political significance” required specific Congressional authorization. That is, both courts determined that an executive order on government contracting could not be used to accomplish a broader policy goal that was not clearly aimed at efficiency at all.
More recently, several other red states challenged a separate executive order issued by President Biden, which imposed a $15 minimum wage on contractors. While the Tenth Circuit rejected the challenge, the Ninth Circuit held that the minimum wage order, like the vaccine orders, exceeded the president’s FPASA authority.
The Hoist
Under those precedents, Trump’s anti-DEI order could suffer the same fate. Although another executive order dating from 1965 (which Trump rescinded) had long barred discrimination and required that contractors adopt certain affirmative action policies, the Sixth and Eleventh Circuit in the vaccine cases went out of their way to cast doubt on the notion that such anti-discrimination requirements related to “economy and efficiency” and were authorized by FPASA. In the process, they cited a comment in a 1979 Supreme Court decision pointing out that “nowhere in [FPASA] is there a specific reference to employment discrimination.”
As those courts held, it is arguable that anti-discrimination rules—and at least Trump’s battle against wokeness—are about something other than economy and efficiency. Meanwhile, the federal courts have increasingly moved to restrict the executive branch’s authority to set policy through rules binding on private actors—witness the Supreme Court’s disavowal of Chevron deference and adoption of the major questions doctrine. The same logic used to rein in executive rulemaking under Obama and Biden could well be harnessed to limit Trump’s ambitious vision for the presidency.
Of course, the jousting match doesn’t necessarily end there. Were pro-DEI plaintiffs to successfully challenge Trump’s order on these grounds and further entrench the precedent, it could prevent a future Democratic president from re-instituting rules aimed at promoting minority-owned contractors.
The moral for those who now inhabit the White House and those who hope to regain it: be careful where you put that petard.
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