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How the Trump Justice Department is Defending Free Speech

Attorney General Jeff Sessions wants college campuses to become what many of them once were—places of “robust debate.” That is a worthy project, and I wrote about it this week in The Weekly Standard. By the way, I recently joined the Center for Equal Opportunity as a senior fellow.

“The American university was once the center of academic freedom,” said Attorney General Jeff Sessions in his speech at the Georgetown Law Center this week. It was “a place of robust debate, a forum for the competition of ideas.” But over the years it has become “an echo chamber of political correctness and homogeneous thought, a shelter for fragile egos.

Sessions called for “a national recommitment to free speech on campus.” Administrators and faculty would defend free expression “boldly and unequivocally,” he said, and the Justice Department would do its part by enforcing federal law, defending free speech, and protecting “students’ free expression”—of all points of view.

As a demonstration of its intentions, the Justice Department has filed a “Statement of Interest” in a campus free speech case from Georgia Gwinnett College that is almost unpronounceable: Uzuegbunam v. Preczewski. At issue is the constitutionality of a school policy that limits student expressive activity to two very small “free-speech zones. Sessions said there would be more such filings, and a department officer confirmed that there would be a second next week.

Federal law provides for the not widely known Statement of Interest. It says that the attorney general may send any officer of the department to any state or federal district to attend to the interests of the United States in a suit pending in a federal or state court.
The Obama Justice Department used statements of interest in what the New York Times in 2015 called “a novel legal campaign that began early in the administration and has expanded.” Where such statements typically were filed in cases involving national security or diplomacy, now they were being filed in private cases involving civil rights. According to the Times, the cases concerned legal aid, transgender students, juvenile prisoners in solitary detention, and people who take videos of police officers. And while the filings didn’t say which party should win, “they [gave] clear support to plaintiffs and put the federal government in cases ... at the forefront of civil rights law.”

“By using such court filings in civil rights cases,’ said the Times, “the Obama administration is saying it has an interest in preserving constitutional rights in the same way it has an interest in foreign policy. ... Neither career Justice Department officials nor longtime advocates can recall such a concerted effort to insert the federal government into local civil rights cases.”

Sessions’ speech raises the question of whether the Trump Justice Department will indeed make a similarly concerted effort to insert the government into local free speech cases arising from colleges and universities. The government’s involvement could help. After all, as Sessions said in his speech, “[A]ction to ensure First Amendment rights [on campus is long] overdue.”

Trump Tweets While Americans Suffer and Wait

Puerto Rico and the U.S. Virgin Islands drowned while President Donald Trump tweeted. It is hard to conclude otherwise. On Sept. 20, Hurricane Maria -- the second major hurricane in less than two weeks -- hit the islands, which together are home to some 3.5 million American citizens. Yet for a week following the devastation, the president found it somehow more important to focus his personal attention on tweeting about football players and the owners of their teams than he did on his job as commander in chief.

The only possible way to save lives and restore order on the islands was to order a massive deployment of U.S. troops to help their fellow Americans immediately after the hurricane hit, but it took almost a full week for that to happen. Army Brig. Gen. Rich Kim did not arrive until Sept. 27 to take control of some 5,000 active-duty forces operating on the ground and 2,500 National Guardsmen, but far more troops are needed. Some experts have suggested that 50,000 is a more realistic number.

The White House was proactive in both Texas and Florida when huge hurricanes headed their way, earning the president deserved credit for doing what he needed to help Americans whose lives were upended and property was destroyed. But American citizens who live in U.S. territory in the Caribbean seemed to be an afterthought in Trump world. When the president finally addressed the American people on the issue -- a week after Maria made landfall -- it was mostly to announce he would head to the Caribbean for a photo-op next week. And instead of reminding everyone that all Puerto Ricans are American citizens, he bragged about how many Puerto Ricans he knows as a native of New York City -- which was cringe-worthy, given his history as a landlord who declined to rent to Puerto Ricans (and blacks and Dominicans) in the 1970s until forced to do so by the U.S. Department of Justice.

This has been a bad week for the president and his White House -- and not just on the administration's slow response to Hurricane Maria. Trump personally managed to reignite a protest movement that had largely died down -- namely, some players kneeling rather than standing for the national anthem at football games -- by calling protesters SOBs and urging their employers to fire them. He failed to rally enough support among Republicans for the Senate to vote on yet another health care reform bill, killing reform for this year. And Trump's endorsement failed to sway voters in Alabama, as Trump's candidate lost to a former judge who twice defied his duty to enforce the U.S. Constitution in his courtroom.

On Wednesday, the president tried to refocus -- this time on tax reform, which has been a long time coming. But given his short attention span, he's unlikely to keep the focus there for long. I worked in President Ronald Reagan's White House as director of public liaison during the fight for tax reform that started in 1985. I know what razor focus looks like; President Reagan had it, as did every member of his team. It was every day, every week for months until the president signed the Tax Reform Act of 1986. It involved hundreds of speeches by the president and members of the administration and visits and calls between members of Congress and the president, his Cabinet and other officials. I coordinated bringing groups into the White House for briefings with administration officials -- friendly groups, as well as those who were skeptical and needed convincing. It was also a bipartisan effort. I remember flying with the president on Marine One into Rep. Dan Rostenkowski's Chicago district (the Democratic congressman was chairman of the House Ways and Means Committee and a sponsor of the tax reform bill) to marshal support. If President Trump wants tax reform, he will need that kind of effort and attention. Pardon me for wondering what the game plan is for this White House.

Americans deserve a president who can keep his mind focused on important things -- such as saving lives in natural disasters by ordering the number of personnel and material commensurate with the scope of the disaster, day one, not stoking culture wars, and working with Congress to pass legislation by getting on the phone, meeting, strategizing and compromising, if necessary, not figuring out whom to blame for failing. Will America ever get from Donald Trump the president it deserves? He's more than eight months into his term, and we haven't yet.

While No One Was Looking

With all eyes focused, rightly, on Texas and the victims of Hurricane Harvey, it is easy to overlook the grave threat to constitutional democracy the president issued when he pardoned former Maricopa County Sheriff Joe Arpaio last week. On its surface, the pardon looks like just another nod to rabid anti-immigration forces. Arpaio is best known for his aggressive -- and unconstitutional -- tactics in Arizona against anyone he or his deputies suspected to be an undocumented immigrant, even if the person had committed no crime. Under Arpaio's orders, deputies could stop and demand proof of legal status of anyone they chose. A federal judge ordered the practice stopped because it violated the Fifth Amendment, which guarantees due process to everyone, but Arpaio defied the order. The judge found that Arpaio's actions showed contempt of court and would have sentenced the 85-year-old next week, but the president's pardon intervened.

The Constitution provides that the president can pardon anyone who has committed a federal crime and do so for pretty much any reason he chooses. Bill Clinton infamously pardoned billionaire financier Marc Rich -- a fugitive who had been found guilty of racketeering, wire fraud and income tax evasion, among other crimes -- after Rich's former wife made large donations to Clinton's re-election campaign. But though the pardon stank of corruption, it proved to be more a stain on Clinton than on the Constitution. The Arpaio pardon is different. Arpaio's crime directly defied a court order intended to enforce constitutional protections and therefore was a direct assault on the Constitution itself. It is not just that Arpaio committed illegal acts against individuals, refused to obey a lawful court order and used his position as a police official to deny others their constitutional right to due process.

No president has ever done what Trump has -- so the question of whether Trump's broad authority to grant pardons extends to violating the Constitution itself is unlike anything we've ever had to face.

I doubt that Trump even considered the possibility that what he was doing was outside the norm; he's repeatedly redefined what is normal for a president to do since the day he took office. But if allowed to stand unchallenged, Trump's pardon could set a very dangerous precedent. Some legal scholars are already questioning the president's actions. As reported by Jennifer Rubin in The Washington Post, a group called Project Democracy has sent a letter to the public integrity section of the Justice Department's criminal division, arguing, in her words, that "the president cannot obviate the court's powers to enforce its orders when the constitutional rights of others are at stake."

Although the Framers didn't place parameters around the pardon powers -- saying the president "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" -- it is inconceivable that they intended for the president to be able to do away with the separation of powers or invalidate the protections afforded by the Constitution itself. For example, could the president pardon an official who decided to defy the 14th Amendment or the First Amendment?

Many of the president's strongest supporters oppose birthright citizenship to children born to immigrants here illegally. If county officials refused to issue birth certificates to those babies whose parents they suspect are undocumented immigrants, could the president pre-emptively pardon them, putting the children in limbo? If a local sheriff didn't like what the local newspaper printed, could he shut down the presses, confiscate or destroy the newspaper's property and defy court orders to restore it? (Arpaio actually came close to that scenario when he went after the Phoenix New Times with illegal subpoenas, threats of multimillion-dollar fines and nighttime arrests of newspaper executives when the paper printed information Arpaio didn't like.) If the president can simply override any part of the Constitution he doesn't like by pardoning officials who violate it, how does this not give him dictatorial powers?

The Arpaio pardon may be the worst thing the president has done to date -- and unfortunately, it was done while no one was looking. But if it goes unchallenged, it will embolden a president who has already shown his contempt for propriety, law and the Constitution.

Two Down, One to Go

Last week the Federalist Society’s Regulatory Transparency Project released this paper prepared by its “Race & Sex Working Group” (love that name, and I’m proud to be a member of it). The paper critiques three areas of Obama administration overreach by the Department of Education’s Office for Civil Rights: transgender bathroom and locker room access under Title IX; investigations by universities of sexual-assault and harassment claims, also under Title IX; and requirements that school-discipline policies not have a “disparate impact” on the basis of race, under Title VI of the 1964 Civil Rights Act.

To its credit, the Trump administration has taken action on the first two, early on revising the Obama administration’s approach on transgender issues, and earlier this month announcing it would rescind the Obama-administration guidance on campus sexual-assault procedures.

Here’s hoping that it will act soon with regard to the third matter, too. CEO board member Jason Riley had an excellent column in the Wall Street Journal last week as well, and the Race & Sex paper goes into more detail about why the Obama administration’s guidance on school discipline and race was bad law and bad policy.

As a legal matter, the way the guidance was promulgated, the use of the “disparate impact” approach in this area at all, and in any event the scope it was given, are all deeply dubious. And as a matter of policy, pressuring school officials to get their racial numbers right when disciplining students will inevitably push them either to discipline, say, Asian-American students who shouldn’t be disciplined or, more likely, not to discipline African-American students who should be.

And who will be hurt most if disruptive or dangerous students are not disciplined? Teachers surely, but even more the rule-abiding students who will now find it harder to learn and, indeed, will now be forced to learn in environments that are downright dangerous. And what is the demographic profile of those students? Right: They are more likely themselves to be African-American and poor.

In sum, jettisoning this third Obama-administration policy will help, not hurt, the cause of racial equal opportunity, and it advances both civil rights and law and order.

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I noted that the second item on the Federalist Society working group list was the Education Department’s guidance on campus sexual assaults. I had earlier written a post for National Review Online for that, too, where I was following up on CEO board member (they’re everywhere!) John J. Miller’s timely post, regarding Secretary DeVos’s welcome speech earlier this month. That speech was welcome because it announced a major change in the Obama-era Education Department policy on how to deal with accusations of sexual harassment and assault on campus.

For more on this, I’ll mention that Hans Bader of the Competitive Enterprise Institute used to work at the department’s Office for Civil Rights, and he writes frequently and always incisively about this issue in particular. So his take on the secretary’s speech is important reading.  Hans is also a member of the Federalist Society working group on Sex & Race.

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Whatever you think of ESPN’s Jemele Hill and the network’s reaction to her recent anti-Trump tweets, it was wrong of ESPN to limit consideration of her replacement to those who happen to share her skin color, as this news article suggests.  That’s offensive — and in clear violation of Title VII of the 1964 Civil Rights Act, which forbids employment discrimination on the basis of race.  Hat tip to CEO’s executive director, Rudy Gersten.

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Finally, a follow-up on a couple of my recent emails.  I mentioned that the Center for Equal Opportunity is delighted to welcome aboard as a senior fellow Terry Eastland, a distinguished journalist, editor, and expert on, among other things, the intersection of race, ethnicity, and law.  And I criticized the announcement by Secretary of State Rex Tillerson of a “Rooney Rule” for appointments to ambassador at the State Department.  Putting the two together, I thought I’d treat you to this post by Terry on the Tillerson announcement, which was posted by the Weekly Standard, where Terry is a contributing editor.  Enjoy! 

Why Does Rex Tillerson Want Affirmative Action for Ambassadors?

Tillerson says the State Department needs to be more diverse and that there needs to be a Rooney Rule for ambassadorships.

Secretary of State Rex Tillerson was so disturbed by the clash of protesters in Charlottesville that he made a policy decision he may have to reverse: In a speech at the State Department on August 19, he repudiated hatred and racism before addressing what he called “a great diversity gap” in employment and ambassadorships. He meant that there are too few employees and ambassadors who are “diverse” on account of their race, or ethnicity, or sex, or sexual orientation. He did not say how many of this or that diversity group the department needed among its employees or ambassadors to be sufficiently diverse. Tillerson’s point was simply that there must be more.

How to get more? Tillerson said there would be changes in the process used to recruit and hire employees and choose ambassadorships. The most important of those changes concerns ambassador selection.

“Every time we have an opening for an ambassador position, at least one of the candidates must be a minority candidate,” he said. Tillerson seemed to mean candidates who are black and Hispanic, but not Asian or other racial and ethnic minorities. The new policy could result in discrimination against a non-preferred minority candidate. Necessarily it will result in discrimination against someone lacking the “right” race or ethnicity but who is better qualified than the diversity candidate included in the competition for a particular ambassadorship.

Federal civil rights law and the Constitution would not seem to permit racial preferences in the selection of ambassadors and department employees. Someone needs to tell that to Tillerson. Perhaps Attorney General Sessions could do so.

Attorneys general, relying on the Justice Department’s Office of Legal Counsel, have long advised presidents and their administrations on legal questions raised by new policies. Here’s one that needs the AG’s immediate attention, before Tillerson’s bean-counting gets out of hand.

Build Relationships, Not Walls

Donald Trump staked his presidential candidacy on building a wall along the Mexican border and won. He promised repeatedly throughout the campaign that Mexico would pay for the wall, a promise he cannot enforce. So now he wants American taxpayers to foot the bill, and this week he threatened to shut down the entire government if Congress doesn't include wall funding in a debt ceiling bill that must be signed into law by Sept. 30, when the government's authorization to spend money runs out. The president issued his warning at a rally in Phoenix this week before a crowd that cheered wildly. I wonder how happy those same people would be if Trump were to follow through on his threat, seeing as large numbers of them, judging from the audience pictures on live TV, wouldn't receive their Social Security checks in the mail.

Building the wall isn't about controlling illegal immigration; there are more effective and cheaper means to do so. And illegal immigration is at historically low rates now anyway. The peak in illegal crossings occurred between 1995 and 2000, when more than 1.6 million people were apprehended trying to enter the country illegally. Since then, the numbers have declined steadily, with a couple of upticks, and declined most dramatically after the Great Recession. In 2016, the number of people caught was about 409,000 (in the same range as the early 1970s). And the figures have dropped even more in the first six months of 2017 -- a fact Trump has repeatedly taken credit for, claiming, misleadingly, a 76 percent decline since he was elected.

Trump uses immigrants as a convenient scapegoat whenever the need arises, as it did this week after widespread condemnation of his divisive and contradictory statements in the wake of the death of a woman in Charlottesville, Virginia, after a neo-Nazi drove his car into a group of people protesting a white supremacist march. It is no accident that Trump headed to Phoenix, ground zero in recent immigration battles, when the heat rose. He can always whip up a crowd by invoking Mexican "rapists" and drug dealers. No wonder some 62 percent of Americans say the president is doing more to divide the country, while 59 percent say Trump's actions and behavior have encouraged white supremacists, according to a new Quinnipiac poll.

Trump's threats and bullying -- especially of members of Congress in his own party -- are getting old. At some point, he must accomplish something concrete for the American people. And by "concrete," I don't mean an ugly, unnecessary barrier between the United States and our third-largest trading partner. The president has promised to repeal and replace Obamacare, reform our tax laws, get rid of counterproductive regulation and rebuild our infrastructure. So far, the only progress he's made is in the regulatory area. He cannot accomplish the rest of his agenda without Congress. That's the way our system works, a lesson he apparently missed when he went to "better schools" and was "a better student" than his critics. ("I live in a bigger, more beautiful apartment, and I live in the White House, too, which is really great," he also reminded the rallygoers.)

Congress returns after the long August recess Sept. 5. The debt ceiling and government funding bills are just the most pressing on the legislative agenda. The president has spent much of the week insulting the very people he needs to move forward, blaming Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan by name for failing to get anything done. But Trump has been the most feckless president in recent memory. Barack Obama assumed office with a thin resume and few accomplishments to his credit, but he managed to get important legislation passed to keep the country from slipping further into economic disaster amid a difficult and lengthy recession. Bill Clinton flailed in his first couple of years, which resulted in his party's losing the House of Representatives in the midterm election for the first time in 42 years. And Jimmy Carter surrounded himself with loyal but inexperienced White House staff members, who alienated many of their needed allies on the Hill, and was largely regarded as a failed president. But Donald Trump is even more hapless.

Trump needs to stop talking about building walls and focus on building the relationships he needs within his own party. The country doesn't need a government shutdown. It needs a president interested in more than his own ego.

Not the Art of the Deal

Who the heck knows what's going to happen to the "dreamers," immigrants who came illegally to the U.S. as children, despite all the talk in Washington? Last week, Attorney General Jeff Sessions rescinded the Deferred Action for Childhood Arrivals program -- at the White House's direction, presumably -- leaving dreamers targets for deportation if Congress fails to act in the next six months. Quickly, the president seemed to have second thoughts, tweeting and making offhand comments about his great "love" for dreamers while suggesting that if they get left out in the cold, it will be Congress' fault. Then, on Wednesday, he invited congressional Democratic leaders Nancy Pelosi and Chuck Schumer to dinner at the White House and seemed to acquiesce in a deal to pass a version of the DREAM Act granting protection from deportation as long as it is coupled with beefed-up border security. But none of the parties present can agree on what was actually decided -- and Republicans in Congress are balking at any deal cut without their involvement. The "Art of the Deal" this is not. It's more like The Three Stooges at the White House.

Except for the most rabid immigrant restrictionists, most politicians and their constituents have no interest in kicking out young people whose parents brought them illegally as children but who grew up here and contribute to their communities by working, going to college or serving in the military. Polls show that two-thirds of Donald Trump voters, along with even larger majorities of other Americans, want the dreamers to stay. Nonetheless, the Republican Party has made being tough on illegal immigration the sine qua non of conservatism, which makes it difficult to put together legislation that can garner enough GOP votes to get a bill to the floor of the House and, if passed, secure the 60 votes needed in the Senate to avoid a filibuster. With a different president -- one with real leadership skills, not the reality TV version Trump embodies -- it might be possible. But does anyone who has watched this president operating over the past eight months have much faith that he will rise to the occasion?

Somebody needs to step into the leadership vacuum on this issue (as on many others, most notably tax reform). We've gone from the imperial presidency of Barack Obama, who used executive orders and the regulatory process to rewrite legislation he didn't like or enact policies he couldn't get passed after the Democrats lost control of Congress, to the ineptness of Trump's White House, which gets almost nothing done. The inability to resolve the dreamers' issue might not be the most consequential failure of Republicans come the 2018 elections, but it would illustrate the quagmire the party created for itself. More importantly, it would show a heinous disregard for the suffering it would bring to millions of hardworking young dreamers, their parents and their spouses -- many of the latter of whom are U.S. citizens -- as well as their American-born children. This is ugly and wrong and entirely avoidable.

House Speaker Paul Ryan said Thursday, "The president understands that he's going to have to work with the congressional majorities to get any kind of legislative solution." But if Ryan continues the path he's chosen in recent months of caving to the immigration hard-liners in his caucus who want to keep any legislation from making it through committee -- much less coming to the floor for a vote -- he'll be as much of a problem as Trump. Ryan has tried to have it both ways, sounding sympathetic to the plight of the dreamers but doing nothing to forge a solution for fear of losing his job. That's not leadership; it's cowardice.

The parameters of an acceptable deal are clear: Give conditional legal residency to dreamers who pass tough background investigations, pay back taxes if owed, complete high school and enroll in college, get a job, or join the military. But the devil will be in the details. Conservatives should take a good look at legislation offered by Sens. Thom Tillis, R-N.C., and James Lankford, R-Okla., the Recognizing America's Children Act, which would bring tough enforcement mechanisms if enrollees were to fail to live up to their promises but also would allow a path to permanent resident status and eventual citizenship if they were to fulfill the terms by graduating college, serving in the armed forces and obtaining employment. These goals reflect conservative values; they don't undermine them.

America needs workers -- and dreamers are already here and willing to do their part. Those enrolled in the Obama administration's DACA program already have a 90 percent employment rate. The last thing we need as the economy finally comes out of the doldrums of the past 10 years is to lose hundreds of thousands of young, productive workers because no one in a position to lead steps up to fix the problem.

More on Charlottesville, and a Bad Speech by Tillerson

Following my email from last week, here are some additional thoughts on Charlottesville:

First, liberals should condemn lawless and violent behavior by those on the Left, and conservatives should condemn lawless and violent behavior by those on the Right. There is a temptation when this is done on both sides to temper that criticism by adding a “But . . . ” — that is, to say, “Of course, it is wrong to kill the police, but we must recognize that black lives do matter,” etc., or “Of course, it is wrong to ram a car into a protestor, but many protestors on the Left are violent types, too,” etc.

The trouble is that, if you do this in reaction to something that is indefensible — like a murder or a riot — then the other side will understandably feel that you are not only tempering your criticism but excusing it or at least signaling that it’s understandable and therefore forgivable. And so the other side will get really upset. Again, this is true on both sides: Conservatives didn’t like it when liberals added a “but” sentence in their response to riots and police murders, and that’s why liberals (and others) are upset with President Trump’s equivocations here.

It’s okay, of course, to make these broader and more nuanced points in some other context, but not when the action being discussed and in our face is one where nuance is unacceptable and clarity is essential.

Second, and for what it’s worth, here’s a piece that I wrote for NRO sixteen years ago on a hot issue at that time, namely whether the Confederate battle flag should be removed from the Mississippi state flag. That’s a different issue from what to do with statues and the like, but some of the points I made then have some relevance now.

Finally, bear in mind that the media love drama and have a vested interested in convincing the public that the end of the world is at hand and so it really needs to keep watching the television, buying the newspaper, visiting this website, etc.  Extra, extra, read all about it!  That’s not to say that what happened in Charlottesville was not newsworthy, and I do feel a little bit like Frank Drebin in this clip when I urge people not to obsess about marching and murderous neo-Nazis; what’s more, a president’s pronouncements can on their own raise issues bigger than what he is pronouncing on. Nonetheless, a few extremist kooks and one bad weekend with one murder in one town do not a Weimar Republic make.

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Meanwhile, and relatedly, Secretary of State Rex Tillerson has just given an appalling speech. From beginning to end it embraces bean-counting for State Department employees on the basis of race, ethnicity, and sex in order to reach the right percentages of this, that, and the other; the great irony is that he thinks this approach demonstrates his commitment to the principle of nondiscrimination. So the response of this part of the Trump administration to neo-Nazis’ call for politically incorrect race-based action in Charlottesville is politically correct race-based action at Foggy Bottom.

Secretary Tillerson specifically promises a State Department “Rooney Rule”: “Every time we have an opening for an ambassador position, at least one of the candidates must be a minority candidate.” Not only is such race-based hiring divisive, unfair, and an endorsement of just the sort of identity politics that we ought to have learned by now is poisonous, but it is illegal, as explained here and here.

The purported justification for this discrimination is this:

I think one of the things that it’s important to appreciate is the value of diversity. It’s not just to achieve a mix of population that looks like the rest of our country. I know from my long career in the private sector, my experience has been the value of diversity in the workplace is it enriches our work, it enriches our work product to have individuals who come with a different cultural perspective or they come with different life experiences. That’s the value. They will see things in the world that I cannot see. I did not have that life experience.

So, first, note that if something is done “not just” to achieve X, then it’s conceded that indeed X is one of the aims; but trying to have more of this group (and thus less of that group) because of national demographics is nothing but the “discrimination for its own sake” that Justice Lewis Powell rejected in Regents of the Univ. of Cal. v.  Bakke.

As for the rest of the justification, why should skin color and national origin be used as proxies for “cultural perspective” or “life experiences”?  Do all blacks and whites think alike, do all Asian Americans and Latinos live in the same neighborhood? Why does Secretary Tillerson assume that, by knowing someone’s race and ethnicity, he knows how “[t]hey will see things in the world”? This is just the crudest of stereotyping.  And, here again, it is not only wrong but illegal:  No federal court has recognized a “diversity” exception to Title VII of the 1964 Civil Rights Act, which bans employment sorting and discrimination on the basis of race, color, national origin, sex, and religion.

Last week’s lesson for the Trump administration: It needs to embrace E pluribus unum, and make clear its categorical rejection of identity politics and race-based policy and action, whether politically correct or politically incorrect.

Use Bipartisan Opening to Protect Dreamers

President Donald Trump's decision this week to remove protection for 800,000 immigrants who came here illegally as children was both cruel and thoughtless. Pressed by hard-liners in his administration and hemmed in by his own campaign rhetoric, the president punted. Rather than announce the decision himself, Trump sent beleaguered Attorney General Jeff Sessions out to announce an end to the Deferred Action for Childhood Arrivals program. But in characteristic fashion, the president quickly undercut his own policy by tweeting that if Congress doesn't act to fix the problem, he will revisit his decision. It was pure Trump -- all impulse and no thought.

The ball is now in Congress' court -- where it has always been. President Barack Obama's decision to protect so-called "dreamers" through executive means was fraught with danger. It was never a permanent fix; it was just a way to ensure that those who had violated U.S. law through no fault of their own could remain in the country they called home without fear of being deported, as long as they obeyed the rules. As I argued at the time, President Obama was well within his authority to decide that these young people were not a priority for deportation -- but to provide real security to these young immigrants, Congress needed to pass legislation.

The votes are there to pass a bill to protect childhood arrivals, but it will require bipartisanship of the kind not seen often during the 115th Congress. Democrats are ready to vote for a bill to put dreamers on the path to citizenship; the issue has become a virtual litmus test on the left. And despite the ugly rhetoric on the right and the anti-immigrant fanaticism in the GOP base, there are enough Republicans who favor helping dreamers to get legislation through both houses. The trick will be getting a bill to the floor. But Trump may have given House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell the perfect excuse to buck the extremists in their party.

In an Oval Office meeting with congressional leaders this week, President Trump decided to throw his fortunes in with Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi by backing the Democrats' proposal to keep the government funded and raise the debt ceiling for three months instead of seeking a longer-term debt and funding solution favored by his own party. The decision took Republicans by surprise -- though it shouldn't have. Trump is nothing if not fickle. He rode Republican anger to the White House, but he has no commitment to conservative principles or loyalty to a party he opportunistically embraced. But this betrayal also gives Ryan and McConnell an opportunity to move forward on legislation that requires Democratic votes to pass.

The biggest impediment to passing legislation to give childhood arrivals permanent resident status has been the reluctance of GOP leaders to bring a bill to the floor that the majority of their members do not support. The "Hastert rule" -- named for former House Speaker Dennis Hastert, who used it to maintain party discipline -- has kept immigration reform from coming to the House floor since 2013, when then-Speaker John Boehner decided to block any immigration reform bill that could not muster majority support among Republicans. But Speaker Ryan could ignore the Hastert rule, which is not a formal part of House rules but only a partisan tactic, and allow one of the fixes to move forward.
President Trump has done his best to humiliate Republican leaders in Congress, so why do they owe him any degree of loyalty? If Congress hopes to accomplish anything in the next year and a half, McConnell and Ryan will have to carve out a path of their own. It can begin with recognizing that dreamers are Americans in every way that matters. Half of dreamers came when they were 6 years old or younger. They have attended American schools, graduated and gone on to be employed at rates higher than their American-born peers. They can and should be asked to give back to the country by paying taxes and serving in the U.S. military -- but they won't be able to do those things without permanent resident status. The alternative would be to deport hundreds of thousands of young, productive workers. Why would anyone want to see that happen?

McConnell and Ryan should reach across their respective aisles and enlist the votes to pass immigration reform. It's the right thing to do.

E Pluribus Unum

If recent headlines over the last few weeks can tell us anything, it is that America needs to get serious, and quickly, about E pluribus unum.

America has always been a multiracial and multiethnic country, and it is becoming dramatically more so. For a society like ours to work, our laws and institutions cannot treat Americans differently according to skin color and what country people’s ancestors came from. We cannot view ourselves and each other as something other than Americans first and foremost.

Of course, America has had a sad history of ignoring this principle, and whenever it has, it has been disastrous. Slavery and Jim Crow were great evils, we all now recognize.

And, more recently, identity politics and political correctness are disasters, too. The Left’s racial nostrums are divisive and unfair, and embrace false stereotypes and discrimination, just as the politically incorrect racism did.

The arguments then and now for such discrimination are no good, and even if there were something to them, the costs of the discrimination and its sheer unworkability in a country like ours — where not only the demographics but individual Americans are more and more multiethnic and multiracial — overwhelm any possible justifications for treating one another differently on the basis of color and national origin.

So let’s turn to those recent headlines.

The Justice Department says it is going to investigate admissions discrimination against Asian Americans at Harvard, and the Left becomes hysterical. That is, the Left is upset because the Justice Department is investigating racial discrimination against a racial minority group.

The Trump administration hurried to set the record straight that this is only one investigation; well, nothing wrong with correcting fake news, but here’s hoping that this doesn’t mean that the administration would have second thoughts about investigating other cases involving politically correct discrimination, even if — horrors! –the victims were indeed white. Will those Rust Belt voters be happy if those returning jobs, and their children’s college opportunities, are divvyed up by skin color?

We are all Americans, are we not? The text and intent and ideal of the civil-rights laws are to protect all Americans from racial discrimination.

Next, a Google employee is fired for suggesting that his company’s efforts to meet gender quotas are bad law and bad policy. Well, if Google were to discriminate against women, that would be a bad thing (and illegal), but likewise if there are anti-male quotas that is also a bad thing (and illegal).

And what about the argument whether women and men might, in the aggregate, have different interests and talents when it comes to certain jobs? That’s an interesting topic for discussion, but of an intricacy disproportionate to its interest if a company follows the law and treats people as individuals. Such nondiscriminatory, merit-based decision-making might result in more men than women being hired, but the failure to achieve proportionate representation is not the same thing as discrimination — unless, of course, you have embraced identity politics and put equal results over equal opportunity. (President Trump, by the way, included a bad nod to such numbers-driven political correctness in a speech on Friday.)

And now there is Charlottesville. Lots of chickens coming home to roost here. It was big mistake for the Trump campaign and its hangers-on to play footsie with the alt-right. It was a big mistake for the Left to think it could advance minority-identity-politics without there eventually being a reaction advancing white-identity-politics. Race and racial appeals should have no place in our politics.

An immediate problem is that the extremes of Left and Right are only too happy to have one, two, many Charlottesvilles. It does not serve their interests to have a unified society. They want racial violence, and it is of only mild interest to the extremists whether the dead bodies are on their side or the others’. It is tempting to leave them to a cage fight, but that would advance their agendas, not the country’s.

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I should add, finally, that defending the principle of E pluribus unum is the mission of the Center for Equal Opportunity.

I happen to like and admire Robert E. Lee, by the way, but it is not crazy to think that official commemoration of him is divisive, and I’m happy to remove his statue in return for, say, race-neutral admissions at the University of Virginia.

Which brings me back to where I started. I have no doubt that the overwhelming majority of Americans want E pluribus unum. They want nondiscrimination, and they want more emphasis on what unites us and less celebration of our differences. They want patriotic assimilation, for immigrants and also for non-immigrants.

But our elites and our non-elite pols need to get serious about this, and quick.