House Republicans just passed the Maloney amendment, which supports President Obama's Executive Order 13672. For those who don't know, that executive order states that the federal government is not allowed to discriminate in employment on the basis of gender identity, and that federal contractors are not allowed to discriminate in employment on the basis of either orientation or gender identity. In this Facebook post, Republican Congressmen Justin Amash justifies his support for the Maloney amendment, by arguing that it brings the rules for federal contractors in line with rules for the federal government; Bill Clinton passed an executive order in 1998 which stated that the federal government is not allowed to discriminate in employment on the basis of orientation, so Obama is placing the same requirement on federal contractors. Here is what Amash says:
You believe nondiscrimination laws generally do more harm than good, and you’ve shown that the Maloney amendment is substantively inconsequential. Why vote for it?
The Maloney amendment is like a sense of Congress regarding the Obama executive order from 2014. When analyzing the amendment, it’s important to recognize that we start with a flawed system. The question is not whether the system is perfected through the Obama executive order, which the Maloney amendment supports, but rather whether that executive order makes the system better or worse, more or less consistent with the Rule of Law. The executive order isn’t something I would have written, but it does create consistency between the nondiscrimination policies that apply in federal employment and those that apply in employment by federal contractors. This consistency reflects the principle that an agent of the federal government—being paid with taxpayer funds—must follow the rules that apply to the government in interactions with third parties. The Maloney amendment affirms this important principle.
Instead of (or in addition to) employing its own workers to complete a project, the federal government may pay a contractor to employ people on behalf of the government. The federal government—representing taxpayers in the contract—offers work to the contractor in exchange for consideration that includes following the government’s own nondiscrimination policies in the performance of the contract.
Why must an agent of the federal government follow the rules that apply to the government in interactions with third parties?
This principle is a general rule of governance that protects the rights of Americans. For example, the federal government cannot get around the Fourth Amendment simply by contracting with a telecommunications firm to provide warrantless access to the private communications of Americans. We correctly recognize that the Constitution prohibits an agent of the government from doing what the government itself cannot do.
Shouldn’t anyone be eligible for taxpayer-funded contracts and grants regardless of actions?
No. Most Republicans rightly oppose taxpayer funding of abortions and have sought to prohibit organizations that perform abortions from receiving taxpayer funds. Government officials routinely make decisions about eligibility for taxpayer funding based on the actions of the potential recipient. Libertarians and conservatives understand that no contractor or grantee has an absolute right to taxpayer funds. Americans may disagree about the relative morality of abortions and employment discrimination, but we can agree on applying a single standard to taxpayer funding of contentious moral issues.
My question is, is it true that it's a "general rule of governance" that "an agent of the federal government—being paid with taxpayer funds—must follow the rules that apply to the government in interactions with third parties"?
Amash seems to think that following this principle is necessary for the rule of law. Is this just a belief Amash and others subscribe to, or has it been affirmed by case law, or what? Does anyone know if any legal scholars or political theorists have written more extensive justifications of this principle?
