60 Years Without Congressional Authorization

For roughly 60 years, the Department of Labor’s Office of Federal Contract Compliance Programs enforced a sweeping regulatory regime governing federal contractors—one rooted largely in presidential executive orders rather than laws passed by Congress.

Now, the Department of Labor has acknowledged that much of that regime lacked statutory authority.

In this episode of Unwritten Law, NCLA President and Chief Legal Officer Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Senior Litigation Counsel Kara Rollins to discuss a major change at OFCCP and NCLA’s role in bringing it about.

Kara explains how OFCCP’s regulatory system developed from Executive Order 11246 and expanded over decades, imposing requirements on companies that do business with the federal government. NCLA has argued that executive orders cannot substitute for congressional authorization when the government imposes binding legal obligations.

After Executive Order 11246 was revoked, the Department of Labor reconsidered its implementing regulations. NCLA submitted comments urging the Department not merely to rescind the regulations, but to acknowledge that much of the regime lacked statutory authority in the first place. The Department’s final action embraces that central argument while preserving OFCCP’s enforcement of requirements that do have statutory foundations, including protections concerning veterans and individuals with disabilities.

Mark, John, and Kara discuss what this means for federal contractors, why Congress—not the executive branch—must make the law, and how participating in the public-comment process can actually influence federal policy.

As Mark puts it, this 60-year regulatory regime is “Exhibit A” for Unwritten Law.