This week, sequestration made headlines again, as Lockheed Martin announced its intention to fall in line with the executive branch’s astonishing request that defense contractors wilfully violate the WARN Act. Per its declaration, the firm will defer sending layoff notices made necessary by the sequestration law; and in return they will receive immunity from the consequences, along with a promise that any fines will be picked up by Uncle Sam. This morning, I spoke to Senator Lindsey Graham about the development.
Graham is deeply concerned about the move, and about the lack of attention it is receiving — within and without Congress. The manouvre is “incredibly disturbing,” he told me. How disturbing? “It is exhibit A in the march toward an imperial presidency.” The “statute is clear,” Graham continued, “the WARN Act is the law of the land.” Here, “we have a White House saying, ‘we don’t care what the law we signed says.’” The OMB analysis — which holds that as the law might change, there is no need for businesses to comply with it — is “absurd on its face,” the senator told me, and the Department of Labor’s advisory opinion “a political move.” It is “patently illegal for the federal government to absorb the financial cost of a private company for not following the law. Never have we put the taxpayer on the hook for a private company failing to follow the law.”
Graham wondered aloud, “why are Democrats are not upset about the precedent? This has implications beyond this election cycle.” What implications?, I queried. “Imagine if a Republican president said that, because his proposed tax cuts were likely to become law, there was no need for the existing rates to be paid.” What we have here, I suggested, is the government instructing people to violate the law, and offering to mitigate the consequences. “Yes,” Graham agreed. “It’s crazy legal analysis. We are in danger of being no longer a rule of law nation. It’s a mini-coup.” I asked how this compared to June’s unilateral imposition of the DREAM Act? “This takes the DREAM Act instinct to a new level,” the senator told me. “That was a bastardization of the law — interpreting the law outside of its intent — but this is more dangerous as it ignores what the statute actually says.”
So, what can be done? “Lockheed Martin will give into the administration and ignore the law at their peril,” Graham warned. I asked what happens if the president attempts to reimburse them? “If he tries to go through Congress, well, that’ll never happen.” And if he tries to reallocate funds? “We would shut that down. The Constitution has a balance of powers for a reason. Congressional law cannot be unilaterally discarded by the executive branch.” Indeed, congressional Republicans will perhaps have an easier time controlling the purse strings than they have in reversing the White House’s course. In August, the Democratic senate voted down an effort led by Graham to force defense contractors to comply with the law, when the senate’s Appropriations Committee rejected by 17-13 an amendment that would have overruled the Labor Department’s advisory.
I inquired as to why the White House had made the request in the first place. President Obama undoubtedly agrees with WARN Act’s purpose, Graham averred, “given that in 2007, he proposed extending the notification period from 60 days to 90 days, in order to ‘protect employees.’” So why the change? “Because he wants to avoid hundreds of thousands of layoff notices being delivered on the Friday before election day.”
“In my view,” Graham affirmed, “the Democrats don’t want to fix the sequestration crisis before the election. They want to use it as a bargaining chip against the Bush tax cuts. The White House hasn’t lifted a finger to solve sequestration. I’ve done all I can, but this should be a time for presidential leadership. The commander-in-chief has a moral responsibility greater than the Congress to the armed forces. This is a failure of moral leadership.”