Presidential Authority to Impose Requirements on Federal Contractors [June 14, 2011] [open pdf - 294KB]
From the Summary: "Executive orders requiring agencies to impose certain conditions on federal contractors as terms of their contracts have raised questions about presidential authority to issue such orders. Recently, the Obama Administration circulated, but did not issue, a draft executive order directing 'every contracting department and agency' to require contractors to 'disclose certain political contributions and expenditures.' The draft order cites the President's constitutional authority, as well as his authority pursuant to the Federal Property and Administrative Services Act of 1949 (FPASA), which authorizes the President to prescribe any policies or directives that he considers necessary to promote 'economy' or 'efficiency' in federal procurement. The draft executive order refers to FPASA's goals in that it directs actions 'to ensure the integrity of the federal contracting system in order to produce the most economical and efficient results for the American people.' The draft order has been characterized by some as an 'abuse of executive branch authority' because it resembles the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act that the 111th Congress considered, but did not pass. If issued, the draft order may face legal challenge. […] In the event that Congress seeks to enlarge or cabin presidential exercises of authority over federal contractors, Congress could amend FPASA to clarify congressional intent to grant the President broader authority over procurement, or limit presidential authority to more narrow 'housekeeping' aspects of procurement. Congress also could pass legislation directed at particular requirements of contracting executive orders."
CRS Report for Congress, R41866