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Comforting the Enemy

Democrats are playing a dangerous game with Israel by snubbing the prime minister of America's staunchest Middle East ally. Four Democratic senators, as well as almost two-dozen House members, have already announced that they will not attend Benjamin Netanyahu's speech to a joint session of Congress on March 3. By doing so, they may curry favor with the White House, but they risk sending a dangerous message to Israel's enemies -- especially Iran.

As recently as November, Iran's Supreme Leader, Ayatollah Ali Khamenei, warned that the only "cure" for Israel is to "be annihilated." Is it any wonder that Netanyahu considers a nuclear-armed Iran an existential threat to Israel's very existence?

Israel is the only nation in the world that, from its inception, has been constantly threatened with extinction. Its Arab neighbors have fought repeated wars to destroy the Jewish state. Terrorist organizations have periodically slaughtered Israelis -- aiming their attacks at innocent civilians, even school children. Last year alone, Hamas fired more than 4,000 rockets into Israel from Gaza. Only Israel's superior Iron Dome defense system prevented the rockets from killing hundreds if not thousands of Israelis who were Hamas' intended victims.

So why on earth have Democrats chosen to pick this fight? And make no mistake: It is a handful of Democrats who have turned Netanyahu's speech into a partisan issue.

The White House has from the beginning treated the Netanyahu speech as if it were a sneak attack by an adversary. But Netanyahu seems to have a better understanding of the American concept of the constitutional separation of powers than the president does.

The Speaker of the House can invite whom he chooses to address Congress. And if the president was miffed at the selection of Netanyahu, he could have chosen to voice his objection privately. Instead, he picked a public fight and asked members of his party to choose partisan sides.

Netanyahu recognizes that Congress has a role to play in approving a nuclear agreement with Iran, as the president does not. He will tell Congress why he believes an agreement with Iran that does not eliminate the rogue nation's ability to build nuclear weapons is bad for Israel -- and for the world. And, no doubt, he will encourage Congress to try to stop a bad deal from being implemented.

If some Democrats in Congress want to rubber stamp whatever deal the administration strikes with Iran, they are free to do so. But shouldn't they at least listen to contrary arguments from one of America's most steadfast allies? And shouldn't they be as eager as Republicans to demand a vote on the issue?

The White House has upped the ante in its feud with Netanyahu by sending national security adviser Susan Rice out to warn that the prime minister's speech is "destructive of the fabric of the relationship" between the U.S. and Israel. And Secretary of State John Kerry looked ridiculous this week noting that Netanyahu's support of the invasion of Iraq in 2003 showed that "his judgment (about Iran's nuclear program) might not be correct," because Kerry himself voted to authorize the invasion while in the Senate.

The administration is charting a perilous course here. If Israel is pushed into a corner, it will -- and has every right to -- take action to prevent Iran from developing a nuclear weapon. Reports that Saudi Arabia has secretly agreed to allow Israel to use Saudi airspace if Israel decides to try to take out Iran's nuclear sites make a military option more likely.

Israel is not the enemy. Iran -- especially a nuclear-armed Iran -- is. Yet President Obama seems willing to abandon an ally in hopes of appeasing an enemy. And unfortunately, by boycotting the Netanyahu speech, some Democrats will give aid and comfort to that same enemy. In the end, it will be the United States, as well as Israel, that suffers.

Fisher Is Back!

Supporters of the Center for Equal Opportunity know that we are playing an important role in trying to end racial preferences in university admissions across the country, and have been especially active in Abigail Fisher’s lawsuit against the University of Texas.  Well, a cert petition has now been filed on behalf of Ms. Fisher by her lawyers with the Supreme Court, asking that review be granted of the latest court of appeals decision against her.

Recall that the last time around, the Supreme Court reversed the Fifth Circuit’s similar ruling; Justice Kennedy’s decision said that the court of appeals had not been strict enough in the scrutiny that it applied to the university’s use of racial preferences in admissions. This month’s petition argues that the Fifth Circuit still hasn’t gotten it right and that, indeed, its latest decision is inconsistent with what Justice Kennedy demanded.

Stay tuned.

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Of course, the New York Times’s Linda Greenhouse had to weigh in immediately, defending the use of racial preferences in university admissions.  Here’s my posted response:

The thesis of [Ms. Greenhouse’s] long essay is that the Court should allow universities to continue to engage in racial discrimination, and yet there is not one word explaining why this discrimination is justified. The only justification cited by the university here is that there are "educational benefits" from student body "diversity." What this boils down to is a claim that African American students and Latino students will say things (in or out of class) that would otherwise never have occurred to white and Asian Americans students. The "educational benefits" from these random statements are so "compelling" that they overwhelm the many, undeniable, and heavy costs of racial discrimination -- the unfairness and divisiveness, the resentment and stigmatization, the mismatching that hurts the students who receive the preferential treatment, the lowering of academic standards that inevitably results when less-qualified students are admitted, and getting schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic. It's not worth it.

And, a bit earlier, another New York Times columnist, Charles Blow, had written a column on racial and gender disparities in the STEM area, raising similar issues.  Here’s my posted response to that:

It does not follow from Mr. Blow's column that our efforts to attract students into the STEM area should be made with an eye on race, ethnicity, and sex. If there are promising students of any background, they should all be equally encouraged to pursue that promise. But, alas, many people draw the politically correct conclusion that what's needed is some kind of "affirmative action" in the STEM area — which is unfair to those who aren't preferred, and counterproductive (because of "mismatch") for those who are. More here.

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On this front, there was an interesting article in the Los Angeles Times over the weekend about discrimination against Asian Americans in university admissions. Many of those being discriminated against don’t like it — go figure.

And Richard Kahlenberg makes some good points in this piece posted by The Chronicle of Higher Education. There have been recent revelations about the University of Texas’s less-than-transparent admissions process, and Mr. Kahlenberg explains how helping less-qualified, well-off applicants get into the University of Texas is part-and-parcel of the way its racial preferences work, too. Kahlenberg concludes that, in both instances, UT’s president demands, “Give me discretion and ‘trust me’ to do what’s best. But given his record of using discretion for those who least need it, why should we?”

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Finally, this also out of Texas:  One of the issues explored at oral argument last month in Texas Department of Housing and Community Affairs v. the Inclusive Communities Project was whether the defendant in the case could really be said to have done anything that actually had a “disparate impact” on racial minorities. Chief Justice Roberts grilled Solicitor General Verrilli on this point, and never did get a satisfactory answer.

Here’s the issue: The plaintiff in the case is a liberal organization that wants to promote racial integration, and it is unhappy that the Texas state agency there doesn’t distribute tax credits in a way that encourages low-income housing to be built in white areas. But mightn’t poor minorities prefer to have low-income housing built close to where they already live rather than far away?

It’s interesting, then, that this month an op-ed was published by the chairman of another Texas organization, who appears to be just as committed to helping racial minorities as the plaintiff, but complains that what’s needed is more low-income housing in minority areas, not less.

So Chief Roberts’s concern — which I had also raised prior to the oral argument, by the way — is vindicated.

Off to a Busy Start in 2015!

The Center for Equal Opportunity had a busy first month in 2015, so I thought I would bring you up to date on just a few of our activities in January.

First, we’ve been very involved in the “disparate impact” case that was argued before the Supreme Court last month.  In addition to working with the State of Texas (the party in the case), and joining and help write an amicus brief, I’ve also written about the case a number of times, including here and here and here.  I also wrote more broadly about disparate impact in my Martin Luther King Day piece here.  This week I added another piece to the list, which I’ve appended to this email.

Second, I’ve just finished a paper that the Heritage Foundation will publish soon on why Congress lacks authority to re-enfranchise felons (the Constitution makes clear that it’s up to the states), and why the various proposals are unwise policy in any event.  Other Heritage papers are in the works for this year; I published three last year (one cited in the next item).  On the felon-voting topic, by the way, I just had this published in a Wyoming newspaper, since that issue is heating up out there.

Third, with the new and improved Congress, the Center for Equal Opportunity has some interesting opportunities.  We will be meeting this week, per my request, with several individuals and groups about pursuing them (such as the bills discussed here).  I also sent in suggested questions for the Senate Judiciary Committee to put to Attorney General nominee Loretta Lynch during her confirmation hearings last week and the subsequent follow-up now.

Fourth, we’ve been in touch with Abigail Fisher’s lawyers and plan to join and help write an amicus brief when she files her latest cert petition this month to the Supreme Court regarding racial preferences in admission to the University of Texas.

Fifth, we are continuing to warn state and local jurisdictions against using racial preferences in their contracting and hiring (including by sending memoranda this month to a large Georgia county and the new governor of a Midwestern state).

Sixth, in addition to speaking at Yale last fall (regarding the need for intellectual diversity in law schools), I will be speaking at a couple of venues in Alabama (regarding disparate impact) this month and in Cleveland (disparate impact plus affirmative action) in May.

Finally, we continue to weigh in on the Ferguson/Staten Island protests and on race-and-crime issues generally.  Note, by the way, that the Justice Department declared last week:  “Yes, law enforcement must commit itself to systemic change.”  Verdict first, evidence later (if at all), as is typical of this administration’s Justice Department. 

Those are just the highlights from January, and of course we’re continuing with all our other activities, too (such as my frequent writing for National Review Online, catalogued here ). 

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Now, here’s my new piece on “disparate impact” that I promised you earlier in this email:

Terry Eastland has an excellent editorial in the current issue of The Weekly Standard on the case argued before the Supreme Court a couple of weeks ago regarding “disparate impact” and the Fair Housing Act. He discusses, among other things, the attention given at argument to three scattered provisions in the 1988 amendments to the act that the Obama administration argues make sense only if the rest of the act bans disparate impact.

I discussed this argument earlier, and made the point that all three provisions involve instances where non-protected characteristics were close enough to protected characteristics that Congress wanted to spell out what was and wasn’t protected a bit more — particularly since Congress was adding “familial status” and “handicap” to the statute at the same time. That is, these provisions were added to clarify in three tricky situations what was and wasn’t disparate treatment — not to ban (only) certain kinds of disparate-impact lawsuits.

Maybe it would help to consider the three hypothetical trialogues below, each among the plaintiff’s lawyer, the defendant’s lawyer, and a liberal judge who might not get the result Congress intended even if he is not using the disparate-impact approach.

Occupancy limits:

Plaintiff’s lawyer: Your honor, my client is a married couple that was happily living in an apartment complex run by the defendant. Then they were blessed with the birth of their first child. But their joy turned to despair when the defendant cruelly informed them that they were going to be evicted because of that birth. This, your honor, is clearly discrimination against families with children.

Defendant’s lawyer: Not true, your honor. The rules of the defendant’s apartment complex clearly state that there is an occupancy limit of two people per apartment.

Plaintiff’s lawyer: But that’s the same thing! Anytime there is a child with parents there is going to be more than two people!

Liberal judge: I agree that this is a distinction without a difference. You lose, landlord.

Drug addicts:

Plaintiff’s lawyer: Your honor, my client was denied an apartment because he has a history of drug addiction, and discrimination on that basis is considered disability discrimination by the federal government.

Defendant’s lawyer: It’s true, your honor, that the federal government considers a history of drug addiction to be a prohibited basis of discrimination. But the problem here is that the plaintiff also had a history of drug-related offenses.

Liberal judge: But wait a minute, you’re saying you concede that you can’t discriminate against someone because they used to be addicted to illegal drugs, but you think it’s okay to discriminate against them because once they possessed drugs illegally? That seems to me to be a distinction without a difference. Of course a drug addict is going to possess drugs!

Defendant’s lawyer:  Well, your honor, perhaps so, but surely the fact that the individual here not only possessed drugs but also sold them should matter.

Liberal judge: So you’re saying that maybe it’s not okay to discriminate against former drug addicts, and maybe it’s not okay to discriminate against a junkie who has a record of illegal drug possession, but if he sold some drugs to fellow junkie at some point then it’s okay to discriminate against him? That still seems like an awfully fine line, given the way that I understand a lot of junkies live, and I don’t see anything to support such line-drawing in the statute. You lose, landlord.

Real-estate appraisers:

Plaintiff’s lawyer: Your honor, my client last year was thinking of selling his “swinging singles” property, and had it appraised at $100,000. For a variety of reasons, he decided not to put the property on the market at that time. Then, as a result of the new provisions of the Fair Housing Act, he had to put in some wheelchair ramps and also had to start renting to families with children. This was costly in terms of outlay, and also resulted in many of our swinging tenants leaving; still, my client is an upstanding citizen and was happy to follow the law.  But when he had the property appraised after this, he was told it was now worth only $90,000! Clearly he is being penalized for no reason except he was complying with the new federal law, and that itself violates the new law.

Defendant’s lawyer: Your honor, my client bases his appraisals of property on simply what price it will get on the open market. It may be true that property with wheelchair ramps and rowdy children is less attractive, but that’s hardly his fault.

Liberal judge: I agree with the plaintiff’s lawyer. It seems to me that if you penalize someone for doing what’s required by federal law, then you yourself are violating federal law. You lose, real-estate appraiser.

Lemmings Over the Cliff

Republicans won big in November on the hopes that a GOP-led Congress could counterbalance President Obama's imperial presidency. But as the deadline approaches to fund the Department of Homeland Security (Feb. 27), it looks like Republicans would rather play chicken with Democrats than actually get something accomplished.

The House has passed a bill funding DHS that includes provisions to undo the president's actions on immigration. Even many of us who support comprehensive immigration reform, including giving some illegal immigrants the ability to earn legal status, have grave reservations about the president's approach. His decision to use executive action to circumvent Congress is a dangerous precedent -- but this is something the courts should decide. A suit filed by 26 states is before a district court in Texas at the moment, and a decision could be handed down any day.

But the bigger issue is whether a fight over what to do about 11 million illegal immigrants currently in the U.S. is worth risking national security for all the 320 million people who live here.

The threats to U.S. security are real -- and they don't come from people who simply want to work here doing jobs most Americans shun. Republicans have allowed themselves to walk into a trap, and they seem to have no idea how to extricate themselves.

Democrats may be the ones filibustering DHS funding, but don't count on the media or the public to blame them if DHS runs out of money at the end of the month. The fact is, most recent polls show that a majority of Americans back the president's policy to grant temporary relief from deportation to many illegal immigrants.

Americans favor the president's action by large margins according to most recent polls, from a low of 52 percent in a January poll by NBC News/Wall Street Journal to a high of 73 percent in a February poll taken by Public Religion Research Institute. More importantly, virtually all polling data show that most Americans believe Congress should enact comprehensive immigration reform that includes legalizing most of those illegally present in the U.S. who have been here for more than five years, have paid taxes and have been otherwise law abiding.

House Speaker John Boehner challenged his Senate counterparts to "get off their ass" and pass the House bill. But the alternative is for him to exercise some leadership on his side of the aisle. It's easy to get most Republicans to vote for a bill that bashes Obama, but what about offering real solutions to our immigration problem?

The fact is, the Senate passed bipartisan comprehensive immigration reform in 2013, but the House refused to do so. Republicans say they won't pass a comprehensive bill until the border is secured. But the best way to stop people from sneaking into the country illegally (or overstaying their visas) is to give them a path to come legally. It would be both more effective and cheaper to pass legal reform than to spend billions more on higher, longer fences and high-tech ways to deter would-be workers from crossing illegally.

Most Republicans would like to see this issue go away, but they are too timid to stand up to the Steve Kings and Marsha Blackburns of their party.  Blackburn sponsored the amendment to the DHS funding bill that would undo Obama's Deferred Action for Childhood Arrivals, which allowed those brought illegally to the U.S. as children to be exempt from deportation and allowed to work provided they meet certain qualifications, including completing high school and having a clean record.

Twenty-six Republicans voted against the amendment -- good for them. But it will take someone like Boehner to stand up and be counted on the issue. And so far, he's missing in action, willing to call names but not willing to pull his members out of the line of lemmings rushing over the cliff.

The current GOP path is the way to defeat. Americans didn't elect a Republican majority to give the hotheads in the party an avenue to put U.S. security at risk in order to punish children who were brought to America illegally by their parents. The sooner the leadership stands up to such blackmail the better for the party and the country.

Iowa Pitfalls

Rep. Steve King's Iowa Freedom Summit last week was not the most fortuitous launch for Republican presidential hopefuls, but it could have been worse. The Iowa congressman has embarrassed himself and the GOP with his anti-immigrant rhetoric over the years, which is no doubt why some prominent would-be candidates had "scheduling conflicts" that kept them away. Missing from the forum were Jeb Bush, Marco Rubio, Rand Paul and Mitt Romney, whose missteps on immigration last time helped cost him the election.

Most of those attending managed to keep their remarks civil -- attacking President Obama's use of executive action to grant legal status to some five million persons in the country illegally rather than the illegal immigrants themselves.

There were some exceptions. Donald Trump said of the undocumented that "half of them are criminals," and former Sen. Rick Santorum blamed immigrants, legal and illegal, for depressing wages among the native born. Trump is a fool, but Santorum should know better.

Overall, immigration has a net positive impact on the wages of native-born workers, according to most studies. What is more contentious is whether immigrants, especially those who have low education levels and lack legal status, depress the wages of low-skilled American workers.

The National Bureau of Economic Research evaluated the effect of immigrants on American wages from 1990-2004, the period of highest illegal immigration in decades, and found that American wages went up almost 2 percent as a consequence of immigration, legal and illegal. It is easy to forget that immigrants are not only workers; they are also consumers and taxpayers (yes, even illegal immigrants pay taxes). Immigrants expand the pie; they don't just take up a bigger slice.

But not all groups fared equally well. The wages of low-skilled immigrants from earlier cohorts went down about 1 percent in the same time period, largely because these were the workers most likely to be competing with the newcomers. But, as the NBER noted in its findings, even this group may have been harmed less than imagined because many among the older arrivals were relatives and friends of the newcomers and, thus, may have received some non-economic benefits from their migration.

It might be politically useful for someone like Santorum to pander to the small restrictionist base of the GOP when blaming immigrants for wage stagnation, but it certainly won't help lower-middle-class American workers deal with the real problems they face.

And those problems are significant. Wages have stagnated for working-class Americans in recent decades, not because immigrants are stealing good paying jobs, but because our economy has changed. The economy increasingly rewards workers who have the most education. Those who have inferior education credentials (determined both by quantity and quality) suffer. But other factors have played a role, too.

The recession dealt a heavy blow. The economy lost jobs, and the administration's efforts to mitigate the effects actually exacerbated the slow recovery. Ironically, long-term unemployment benefits discouraged workers from re-entering the workforce after they lost their jobs and led to a huge increase in the number of Americans leaving the labor force. A new analysis by NBER out this week concluded that 1.8 million people took jobs in 2014 when their unemployment benefits ran out, including almost 1 million who had dropped out of the labor force.

Geographic mobility is another factor that has depressed prospects for middle-class workers. The U.S. traditionally has had very high rates of mobility, with workers willing to relocate when jobs disappeared from their communities. But Americans are far less likely to do so today, for a variety of reasons, including the difficulty of selling homes whose values declined in the housing bust. Recent immigrants, especially those less skilled, are far more likely than the native born to be willing to chase jobs from one community to another, as a study by Brian C. Cadena and Brian Kovak showed recently.

If the GOP hopefuls spent more time coming up with solutions to the real problems many American workers face instead of blaming immigrants for all their woes, we'd all be better off.

Contracting, Assimilation, and Comparable Worth

There was a recent news story in Madison, Wisconsin, on its mayoral candidates forum, and the story mentioned a discussion there of “minority requirements for contractors,” and whether this is something that Madison should have.  In my published response, I said the answer is no, regardless of the outcome of the “disparity study” that is under way (and also mentioned in the news story). 

It's good to make sure contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex.  But that means no preferences because of skin color, etc. either — whether it's labeled a "set-aside," a "quota," or a "goal," since they all end up amounting to the same thing. 

Such discrimination is unfair and divisive; it breeds corruption and otherwise costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder; and it's almost always illegal — indeed, unconstitutional — to boot (see 42 U.S.C. section 1981 and this model brief), regardless of the findings of any “disparity study.”  

Those who insist on engaging in such discrimination deserve to be sued, and they will lose.  And, the law aside, politically correct discrimination is wrong, just as politically incorrect discrimination is wrong.  The city should make clear that it is interested only in race-neutral ways of achieving equal opportunity in its contracting.

A disparity study, by the way, attempts to justify the use of racial preferences by documenting racial disparities; the problem, of course, is that disparity is not the same as discrimination, and even if there is discrimination it doesn’t follow that preferential treatment is a good way of combating it.

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Following up on a National Review Online post about Governor Bobby Jindal’s recent comments on assimilation, I republished my top-ten list of what we should expect from those who want to become Americans (and those who are already Americans, for that matter). The list was first published in an NRO column nearly 15 years ago, and it was fleshed out in this congressional testimony seven years later:

1. Don’t disparage anyone else’s race or ethnicity.
2. Respect women.
3. Learn to speak English.
4. Be polite.
5. Don’t break the law.
6. Don’t have children out of wedlock.
7. Don’t demand anything because of your race or ethnicity.
8. Don’t view working and studying hard as “acting white.”
9. Don’t hold historical grudges.
10. Be proud of being an American.

My list and Governor Jindal’s appear, unsurprisingly, to be similar — especially, per the National Review Online post, with regard to my last item. 

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The Obama administration’s Department of Labor recently proposed new regulations that are supposed to update the longstanding rules against sex discrimination by federal contractors. Now, for decades the Left has supported the notion of “comparable worth” in this area — that is, requiring equal pay not only for men and women performing the same job but also for different jobs that some bureaucrat believes to have comparable worth even if the market does not agree. For example, kindergarten teachers should get paid the same as truck drivers, because the jobs have “comparable worth” and so it would be sex discrimination to pay the former (mostly women) less than the latter (mostly men).

So, bearing that in mind, is this particular proposed Labor Department regulation an attempt to get the nose of the comparable-worth camel into the tent? Some of the language has been used earlier by the Obama administration but not all of it, to my knowledge, and never in an actual regulation.

§ 60-20.4 Discriminatory compensation.

Compensation may not be based on sex. Contractors may not engage in any employment practice that denies equal wages, benefits, or any other forms of compensation, or equal access to earnings opportunities, on the basis of sex, on either an individual or systemic basis, including but not limited to the following:

(a) Contractors may not pay different compensation to similarly situated employees on the basis of sex. For purposes of evaluating compensation differences, the determination of similarly situated employees is case specific. Relevant factors in determining similarity may include tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, minimum qualifications, and other objective factors. In some cases, employees are similarly situated where they are comparable on some of these factors, even if they are not similar on others. . . .

(d) Contractors may not implement compensation practices, including performance review systems, that have an adverse impact on the basis of sex and are not shown to be job related and consistent with business necessity.

The Center for Equal Opportunity plans to challenge this regulation in a formal comment.

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This week I’ll be speaking on “Why I Hate the Disparate-Impact Approach to Civil-Rights Enforcement, and You Should, Too” at the Federalist Society chapters at the University of Alabama law school and in Birmingham.  If you’re in the area, I’d love to see you there!

Can There Be Nondiscriminatory “Discrimination”?

Last week, the Supreme Court heard oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case in which the Center for Equal Opportunity has been heavily involved.

The question presented in this case is: “Are disparate-impact claims cognizable under the Fair Housing Act?”

Under a disparate-impact claim, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color, or national origin, but also religion, sex, or familial status (that is, having children) – then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application. The defendant can prevail only by showing – to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs – some degree of “necessity” for the policy.

The Supreme Court should reject this approach to civil-rights law enforcement.

1. Text. This approach is flatly inconsistent with the Act’s text.  The text uses not only the phrase “because of” race but also “on account of” and “based on.”  All of these phrases are naturally read to require a showing of discriminatory intent.  The phrase “on account of” also appears in a section of the Act that bans coercion and intimidation of those exercising fair-housing rights, and intent is clearly implied there; and the “because of” and “on account of” language also is used to delineate certain fair-housing violations as crimes, and criminal prosecutions cannot be based on a disparate-impact theory. The disparate-impact approach would also render superfluous many of those provisions in the statute regarding the disabled.  For instance, the failure to make or allow “reasonable modifications” and “reasonable accommodations” could have been attacked under a disparate-impact theory without those provisions.

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The Obama administration’s brief stresses three brief, scattered in the 1988 amendments to the Fair Housing Act:

  • Nothing in this title limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.
  • Nothing in this title prohibits conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).
  • Nothing in this title prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status.

The Obama claim is that there would be no reason for these provisos unless the Act generally allowed disparate-impact causes of action. Of course, it is not particularly surprising or damning that there should be some redundancy in a long statute like this. Legislation is not poetry, and lobbyists are paid to put in suspenders even if a belt might do. 

But it is also worth noting that all three provisos involve instances where non-protected characteristics are close enough to protected characteristics that Congress wanted to spell out what was and wasn’t protected a bit more — particularly since Congress was adding “familial status” and “handicap” to the statute at that very time.

To elaborate: The 1988 amendments expanded the Act to cover not just race, etc. but also “familial status” — that is, to make it illegal to discriminate against families with children. But an occupancy limit on, say, an apartment obviously appears on its face to get close to that line.

Another sort of discrimination prohibited by the 1988 amendments was against the handicapped. Those with a record of drug addiction are considered to fall into this category (so long as it is not “current, illegal drug use . . . or addiction”). So here Congress would have been aware that discrimination against someone because of their record of drug crimes gets close to the line of handicap discrimination. The war on drugs was well under way, and no doubt our legislators wanted to make sure no one could claim their bill was soft on drug traffickers.

As for real-estate appraisals, bear in mind again that disability and familial status had just been added to the statute. Designing (or redesigning) property so that it is accessible to the handicapped can affect its value; changing a building so that it is kid-friendly can, too. What’s more, in both instances the result might be a building that is more expensive to construct but less desirable to the large class of individuals who aren’t being accommodated (the able-bodied, and singles or couples). Either way, Congress did not want real-estate appraisers to be held liable for market pricing that was not their doing.

So these provisions were added to clarify in three tricky situations what was and wasn’t disparate treatment — not to ban (only) certain kinds of disparate-impact lawsuits.

2. History. If there is no textual support for a disparate-impact cause of action in the original Act or its 1988 amendments, and since the legislative history points in the other direction as well, the remaining argument to support disparate impact in fair housing law is that some lower courts had recognized a disparate-impact cause of action under the original 1968 version of the Act, and so Congress implicitly endorsed the approach when it reenacted the statute in 1988 with full knowledge of those decisions.

But Congress also knew that the Supreme Court had not resolved this question. During the summer of 1988, while the amendments were before Congress, the Justice Department was arguing to the Supreme Court that it ought to grant review in a New York case and rule against a disparate-impact approach. In other words, Congress could hardly be said to have been endorsing settled case law by passing the 1988 legislation, because no settled case law existed.

3. Deference.There are some newly minted Obama administration regulations that endorse the disparate-impact approach, and it is argued that the Court should defer to that interpretation of the statute. But there are a number of good reasons why these regulations are entitled to little deference, even beyond the fact that they are inconsistent with the plain words of the statute.

The Fair Housing Act has been on the books since 1968, and during that time the executive branch has sometimes endorsed the disparate-impact approach and sometimes not. For example, President Reagan explicitly rejected the approach in signing major amendments to the Act, and his Justice Department argued against it in a brief to the Supreme Court; the Bushes didn’t think much of it, either.

The Obama administration, on the other hand, is attempting to game the system here; it orchestrated a shady deal with the City of St. Paul to get it to withdraw an earlier case, and meanwhile worked on promulgating those new regulations. “We were afraid we might lose disparate impact in the Supreme Court because there wasn’t a regulation,” said Sara Pratt, an official in the Department of Housing and Urban Development.

In any event, the principle of deference ought to be trumped in this case by the “constitutional-doubt canon.”  The Justices have repeatedly acknowledged that a statute mandating the disparate-impact approach also can encourage race-conscious decision-making; this of course raises serious constitutional issues. The approach raises further constitutional problems here by altering the state-federal balance in far-reaching ways. For example, it renders race-neutral rules – like rules for preserving order in public-housing projects – suspect; the approach will also result in the federal micromanagement of insurance practices, which is at odds with the McCarran-Ferguson Act, a point emphasized in a recent district court decision striking down the Obama regulations.

4. Coherence.One would also expect that, if a statute contemplates use of the disparate-impact approach, it would answer some fundamental questions like how to measure the kind and degree of disparate impact that is required and what sort of rebuttal is needed. But there’s none of that, and the resulting problems are myriad and severe.

For example, what should decision-makers do if a practice has a disparate impact in one location but not in another?  Or if the impact ebbs and flows over time?  What should landlords do if a policy (for instance, excluding felons as tenants) has an unfavorable disparate impact on potential tenants of a particular race, but is welcomed by the incumbent tenants who are predominately of that same race?

And what if a practice is favorable for some racial minority groups (say, Asian Americans) but not for others (say, Latinos) – and, what’s more, the opposite is at the same time true for some minority subgroups (thus, unfavorable for Hmong but favorable for Cuban Americans)? And remember, too, that “majority” groups – whites and men and Christians, for example – must be able to bring these lawsuits, too, or you’ve added an even greater equal protection problem.

Thus:  (a) a foreclosure policy may have no disparate impact on a particular group in pre-recession 2006, but a severe one in 2009; (b) an income-requirement may have no disparate impact on Latinos in Nashville but a severe one in Denver; this may mean that two companies with identical policies have very different liability risks, or the same company may be liable in one city but not in the other (but should the cities be considered separately if it’s the same company?); and (c) the use of credit scoring may have a disparate impact on Latinos but not Asians, but there may be no disparate impact on Cubans and a severe one on the Hmong.

There’s an even more fundamental problem: It is often hard to say whether the impact a practice has on a group is adverse or not.  In the Texas case, for example, the complaint is that low-income housing is being disproportionately located in black areas.  But poor black people might prefer to have housing opportunities near where they already live rather than a long way away, and they could complain about the disparate impact of deliberately changing the system so that they had fewer such opportunities.  Yes, it might interfere with social engineering that would force blacks to relocate to white areas, but might not even the aim of greater integration be met, at least to some degree (depending on racial breakdown of low-income housing recipients – a breakdown that might vary from city to city and county to county) by encouraging non-blacks (not just whites, but also Latinos and Asians) to live in black areas?

These problems make it difficult to decide not only whether there is a disparate-impact in the first place, but also how to weigh properly the defendant’s rebuttal, which in the public housing context – versus, say, employment – will often involve balancing myriad and hard-to-quantify interests. In sum, it is astonishing to interpret a national civil-rights statute in a way that makes identical conduct in one city illegal while allowing exactly the same conduct in another city, just because of the different racial makeup of the two cities.

*          *          *

Let me just add three brief points. First, it’s frequently asserted that we must allow “disparate impact” causes of action because actual discrimination (“disparate treatment”) is difficult to prove. But this is simply not true: The overwhelming majority of housing cases brought and won by the federal government are disparate-treatment cases, as anyone who reads the Department’s press releases every day (as the Center for Equal Opportunity does) can attest. 

Second, many on the other side are arguing that you need the disparate-impact approach in order to go after segregated housing patterns. But of course that is not true if the segregation stems from actual discrimination. And if it is not, then using the disparate-impact approach raises all the usual problems inherent in the disparate-impact approach. For example, how much racial balancing is to be required? What if the reasons for the racial imbalance reflect voluntary decisions or economic realities? What sort of remedies will be required (like deliberate assignments on the basis of race), and what if those remedies end up hurting people (including minorities) on the basis of race? And so on. Besides, if racial imbalances in housing patterns are a result of voluntary choices by individuals, then it’s unclear why this is a huge evil that the government needs to fix.

Finally, I’d note that the National Association of Mutual Insurance Companies submitted excellent testimony on this issue at November 2013 Congressional hearings, which can be read here (starting at page 110 in the hard-copy pagination). 

Here’s hoping the Court does the right thing and puts an end to this nonsense.

Barbarians at the Gate

I would not watch the video of Jordanian pilot Mouath al-Kasaesbeh being consumed by fire, because to do so was exactly what the Islamist barbarians who produced it wanted. They wanted not only to kill their captive in the most horrific way imaginable, but also to burn the images of his immolation into the minds of those who oppose them. Terror is their most effective weapon. The only way they can achieve victory is by frightening people into submission. Scare off those who would join an alliance to fight the Islamic State, and ISIS wins.

But barbarity also has a way of inspiring courage. King Abdullah II of Jordan, no stranger to combat as a former attack helicopter pilot and commander of Jordan's special forces, has vowed a "relentless" fight against ISIS. If the terrorists thought they would make fellow Arabs retreat, they may be in for a rude awakening.

Jordan responded to the murder by flying more sorties over ISIS-held territory in Syria. Other Arab leaders have responded, as well -- though more rhetorically than tactically. But defeating ISIS from the air is unlikely. And here, all civilized nations should be concerned.

Has any war ever been won from 20,000 feet -- short of dropping a nuclear bomb? And even the U.S. victory in the Pacific in World War II with the bombing of Hiroshima and Nagasaki came only after nearly four years of relentless battles on land and sea and in the air.

Yet President Obama has said again and again that he will not put boots on the ground to fight ISIS. Indeed, the president authorized sending more U.S. soldiers to West Africa to fight Ebola last year than he was willing to commit in even an advisory capacity to fight ISIS in Iraq. In September, The Washington Post reported up to 4,000 U.S. military personnel were being sent to Africa to help fight the deadly disease, while the paper reported this week that only about 2,700 U.S. military advisers have been deployed to Iraq to provide security and support to Iraqi troops.

ISIS will not be stopped until nations commit to fight them with all their resources. The Arab world should step up to the plate -- but they won't as long as the U.S. holds back.

As Sen. John McCain said two weeks ago on CBS's Face the Nation, "We need more boots on the ground. I know that is a tough thing to say and a tough thing for Americans to swallow, but it doesn't mean the 82nd Airborne. It means forward air controllers. It means special forces. It means intelligence, and it means other capabilities."

If the horrific video teaches us anything, it is that the barbarians are at the gate. Either we fight them with all the means we have at our disposal, or we will see more of their torture and killing. We already have witnessed crucifixions, children buried alive, women raped and stoned to death, countless beheadings and now a prisoner burned in a cage.

The Islamists are on the march in the Middle East, Africa and South Asia. They have attacked us in New York, Washington, Paris, Madrid, London, Mumbai and Nairobi. They have threatened to wipe Israel off the face of the Earth and kill all Jews. They force schoolgirls to be sex slaves and kill little boys in their classrooms. How much more will it take until we say "no more"?

If fighting this evil is not worth sacrifice, nothing is. Obama can say, as he did in response to the killing of the Jordanian pilot, that "we'll redouble the vigilance and determination on the part of our global coalition to make sure (ISIS is) degraded and ultimately defeated." But unless he commits to lead the fight, the video of First Lt. al-Kasaesbeh will not be the last grisly death we're asked to witness. We choose courage or submission. There is no middle ground.

Democratic Revolt on Iran

In what was one of the most stunning rebukes of a sitting president by a member of his own party, Sen. Robert Menendez accused President Obama of taking his talking points on Iran "straight out of Tehran" after the president's State of the Union address. It's not the first time the ranking member of the Senate Foreign Relations Committee has disagreed with the president. In early January, when the president announced his unilateral opening to Cuba, Menendez said the administration "got absolutely nothing for giving up everything that the Castro regime wants." Menendez gives hope that there are at least a few Democrats who understand the nature of totalitarian regimes.

Menendez may not be Henry "Scoop" Jackson, the legendary Democratic hawk who was the scourge of the appeasement wing of his party in the U.S. Senate from 1941 to 1983, but he knows a bad deal when he sees one. And the president's line on Iran's nuclear program -- that "we've halted the progress of its nuclear program and reduced its stockpile of nuclear material" -- is nothing short of a lie. Now the question for Democrats will be whether others will join Menendez in pushing for tougher sanctions against Iran. The president has already announced he will veto a sanctions bill, but Menendez would need only 12 other Democrats to join the 54-member Republican majority to overturn a veto.

Wishful thinking? Maybe. But 11 of the current Democrats in the Senate have co-sponsored Iran sanctions legislation along with Menendez. If all of them could be persuaded to vote to overturn a veto, Menendez would need only one more, assuming the GOP ranks hold firm. After all, the stakes are high enough that fear of what Iran could do with a nuclear arsenal might trump the usual partisan politics.

Menendez has introduced a bill with Republican Mark Kirk of Illinois that would apply tough new sanctions if the talks do not produce an acceptable agreement by June 30. Other bills would attempt to force the White House to submit any pact for a Senate vote, which the president has already signaled he won't do.

The administration's negotiations have so far produced nothing but additional time for Iran to build weapons. The interim agreement that the administration credits with "halting" Iran's nuclear program allows Iran to continue to enrich uranium to 3.5 percent purity in unlimited quantities, which is approximately 60 percent of the purity needed to produce weapons-grade material. While the talks have dragged on, Iran has already enriched enough uranium to quickly produce two bombs. Iran is expected to have enough enriched uranium to produce a third bomb by June, when the deadline for a deal lapses -- though the administration has already signaled it will give Iran more time.

Iran is also pursuing enriching plutonium for nuclear weapons. Under the interim agreement that governs the talks, Iran continues its work on the Arak heavy-water reactor, building off site the parts that can quickly be assembled to make the reactor capable of enriching plutonium to nuclear grade when it chooses. The Iranians also have announced they will build two more light-water plutonium reactors.

In addition, Iran continues toward development of an ICBM. Recent analyses suggest they may have a system by the end of this year. Yet, the president thinks the Iranians should be given still more time before they pay any price for their subterfuge.

As evidenced in his cocky performance in the State of the Union address, the president still believes in his own supreme charm and powers of persuasion, which to date have yielded no foreign policy successes. He may ingratiate himself with the Elizabeth Warren wing of the Democratic Party by following this path, but he's risking America's security -- and the world's -- in the process.

Does the Democratic Party really want to be the party of nuclear proliferation, turning a blind eye while one of the most dangerous regimes in the world builds bombs and the capability to deliver them anywhere in the world?

The Democrats need someone who puts American interests first.

Hillary Clinton certainly won't be the one to do so. She has joined Obama in opposing new sanctions, calling them "a very serious strategic error." Had she taken a tougher line, she might actually have proved herself more than the Obama lackey she was during her tenure as secretary of state.

It's important the president be stopped, and the GOP can't do it alone. If ever there was a time for some cooperation across the aisle, it's now. Good for Menendez for stepping up to the challenge.