The administration has apparently decided to combine the alarming developments I chronicled in my last two blogposts, which dealt with racial discrimination in Hawaii and President Obama’s abuse of executive power. In a classic Friday‐afternoon news dump — and on the eve of a holiday weekend, no less — the Interior Department issued an advance notice of proposed rule‐making (ANPR) to “solicit public comments on whether and how the Department of the Interior should facilitate the reestablishment of a government‐to‐government relationship with the Native Hawaiian community.” (Our friends at the Grassroot Institute of Hawaii broke the news; it helps that their weekend starts six hours after Washington’s!)
This would be an end‐run around both Congress and the Constitution, marking the first step toward the creation of a race‐based government in Hawaii. That is, with variations of the Akaka Bill stalled in Congress for over a decade — and Daniel Akaka no longer in the Senate, and congressional Democrats on their heels more generally — the administration has decided that this is yet another area where it can’t wait for the legislative branch. Even setting aside the Fourteenth/Fifteenth Amendment and policy problems with any proposed racial governing body, this brazen executive action raises serious separation‐of‐powers concerns.
As recently as September 2013, four members of the U.S. Civil Rights Commission wrote a letter to President Obama, urging him not to unilaterally push for a Native Hawaiian government. After extensive historic and legal analysis, the letter noted that “conferring tribal status on a racial group is itself a violation of the equal protection guarantees of the Constitution.” Moreover, “as beyond the scope of Congress’s powers as it would be for Congress to attempt to organize Native Hawaiians as a tribe, we believe it would be doubly so for you to attempt to do so by executive action.”
Quite so. I just wish that the next time the executive branch wanted to piggyback off my ideas, it would pick some reform proposals rather than mixing two blatantly illegal policies I’ve criticizing.
For more, see Roger Clegg at NRO and Grassroot’s continuing investigation.
