Policy Brief: Biden’s Equity Executive Order Further Destroys and Divides America
By: Jeffrey Bossert Clark
On February 16, 2023, President Biden issued a new Executive Order (EO 14091). It continues a revolutionary, “all of government” agenda that usurps Congress’s power, diverts federal agencies from their true, targeted missions, and fosters racial division in a manner that violates the U.S. Constitution.
On paper, the goal of EO 14091 is to redress “generations of discrimination and disinvestment.” But it aims to do this by “reject[ing] the narrow, cramped view of American opportunity as a zero-sum game.” In reality, of course, it is the malicious equality-of-result focus that sees equality as a “zero-sum game,” not the classic focus on providing equal opportunity—the rising tide that lifts all boats and generates a positive-sum game.
EO 14091 includes the following major planks:
1) Defining “equity” broadly to protect/advance “Black, Latino, Indigenous and Native American, Asian American, Native Hawaiian, and Pacific Islander persons and other persons of color; members of religious minorities; women and girls; LGBTQI+ persons; persons with disabilities; persons who live in rural areas; persons who live in United States Territories; persons otherwise adversely affected by persistent poverty or inequality.” EO 14091 also protects “intersectionality” by stating a preference for individuals who belong to multiple such communities.
2) Defining sexually protected categories to include pregnancy status, as well as “gender identity; intersex status; and sexual orientation.”
3) Creating an Agency Equity Team within all cabinet agencies and several other bodies (23 in all, ranging from the Justice Department to Environmental Protection Agency (EPA) to the National Aeronautics and Space Administration). These teams are required to coordinate with the Agency’s environmental justice officer and with the “Gender Policy Council.”
4) Making the senior designee at each of these cabinet and other agencies “responsible for delivering equitable outcomes, to the extent consistent with applicable law.” As noted, the focus is on “equal outcomes,” not on equality of opportunity. “[E]quitable delivery of resources and benefits to all” is also required by all of the 23 covered agencies.
Equitable outcomes are to be implemented by means of:
5) Requiring each Agency Equity Team to support equity training and equity leadership development. This not only tries to forever mold the minds of federal officials to think in equity-of-outcome terms, deprioritizing merit, but this EO will also build into the federal bureaucracy and into leadership positions biased officials who will perpetuate Biden policies no matter who leads an administration.
6) Creating a White House Steering Committee on Equity to be run by the Assistant to the President for Domestic Policy. Susan Rice currently serves in this role. She has been an extremely intense partisan and was involved in highly questionable activities like spying on the Trump campaign and “unmasking” Americans in classified intelligence reports. Numerous other Biden Administration EOs on diversity are centralized under her control. We count at least nine other such EOs.
7) Promising to review federal managers based on how they knuckle under to this EO, meaning that agency leaders who just want to, for instance, prosecute ordinary criminals at the Justice Department, clean up environmental messes at the EPA, or help promote the needs of American farmers at US Department of Agriculture will instead receive higher bonuses and be promoted more readily the more “equitable” outcomes they can achieve, regardless of whether that has anything to do with their agencies’ statutory missions.
8) By requiring agency regulations to reflect this new focus on “equitable outcomes,” the provisions of the specific statutory instructions by Congress will be sidelined.
9) The Director of the Office of Management and Budget is to assist in performing the EO 14091 diktats by reviewing internal processes and guidance and by ensuring that all artificial intelligence systems “advance equity.”
10) Establishing a 15% “goal” (read: “quota”) for the federal patronage of socially and economically disadvantaged individuals (“SDBs”).
Problems with EO 14091:
1) Despite citing several statutes – American Rescue Plan Act of 2021 (Public Law 117-2); the Bipartisan Infrastructure Investment and Jobs Act (Public Law 117-58) (Bipartisan Infrastructure Law); division A of Public Law 117-167, known as the Creating Helpful Incentives to Produce Semiconductors (CHIPS) Act of 2022; Public Law 117-169, commonly referred to as the Inflation Reduction Act of 2022; and the Bipartisan Safer Communities Act (Public Law 117-159) – none of them actually support this sweeping action.
2) EO 14091 builds on EO 13985 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government) and other EOs authorizing this “all of government” approach to greater “equity.”
3) The EO thus works much like the National Environmental Policy Act (“NEPA”) (hence, it’s no surprise that EO 14091 references “environmental justice”). Under NEPA, the vast majority of agencies must analyze the environmental impacts of their actions before they finalize them. EO 14091 carries this approach over to identity considerations: racial, gender, sex practice, disability, economic status, etc.
4) However, EO 14091 is not a statute. Whatever the merits or lack of merit, Congress is the body that authorized the broad environmental protection analysis by all agencies. Not so with equity.
5) EO 14091 will also force the violation of basic principles of administrative law because the EO requires agencies to add an equity dimension to all of their decision-making before they have either (a) compared that mission to the terms of the statutes they must fulfill; and (b) at the very least, proposed adding equity as a decisionmaking criterion pursuant to notice and comment rulemaking. Nor (c) has this massive equity-promotion effort been subjected to judicial review and approved by the courts.
6) By protecting seemingly every niche race, sexual, and economic community, EO 14091 will run into significant constitutional equal protection obstacles. Straight, white males (a) will increasingly become a populace that need not apply for federal positions or at least federal promotions; (b) will see new regulations disadvantage them; and (c) will see 15% (and growing over time) federal monies flow away from them. This is not the colorblind Constitution the Framers of the mid-nineteenth century Reconstruction Amendments intended.
7) As a result, EO 14091 proceeds without legislative or constitutional authorization and in reality, subverts both the legal order and the larger constitutional order.
8) Nothing in EO 14091 limits the benefits it provides to American citizens. So the EO creates a favored class of intersectional minorities of various types placed at the top of a pyramid of federal benefits but shunts others to the bottom of the pyramid where they must make comparative sacrifices for the benefit of those favored in the name of equity. This is not the American way. It is radical economic Marxism and cultural Marxism combined.
9) Coupled with the diversity, equity, and inclusion drive being pursued by “woke” corporations and being taught at “woke” universities, developments like EO 14091 threaten to split asunder basic American traditions and the economic progress generations of Americans have died to attain.
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