Eugene Volokh reflects sadly on the current state of American politics.
My counter-argument to “it’s all been fine” is “Don’t press your luck.” Obama set the Middle East on fire, and it is still burning. Israel faces its most dangerous conflict since its war for independence. In Ukraine, we are watching—and participating in—the largest European war since 1945. Here at home, Mr. Trump and Mr. Biden ran up huge deficits, setting us up for strife whenever we are forced to put the budget on a sustainable path. The pandemic was mishandled. Who knows what challenges lie ahead, for a President who is not even up to the challenge of making coherent statements grounded in reality? (Just to be clear: I mean that criticism to apply to both Mr. Trump and Mr. Biden.)
But the biggest crisis is not the flaws in Biden and Trump themselves. It is the lies that have to be told by everyone around them to cover up those flaws.
Two federal judges last week blocked much of President Biden’s latest student loan forgiveness scheme. His Administration’s response? Wave away borrower payments. Heads or tails in court, taxpayers lose.
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What a bait-and-switch. The Administration encouraged borrowers to sign up for dubious loan-forgiveness plans that it should have known were unlawful in order to buy their votes. To make it up to snookered borrowers, the Education Department on Friday said it would pause their payments and suspend interest accrual. It didn’t say for how long.
Deviation from the law was primarily the result not of activist judges but of judicial abdication to an activist bureaucracy. With federal judges now pushing back, the civil rights bureaucracy’s decades-long dominance may end.
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But officials at the Equal Employment Opportunity Commission, the 1964 law’s enforcement agency, took reports of a growing racial unemployment gap as carte blanche to exercise “creative administration” and “liberally construe” the law to serve “the needs of the minorities for whom the statute had been passed,” to quote Alfred Blumrosen (1928-2015), a Rutgers law professor and early EEOC adviser.
Under Blumrosen’s guidance, the EEOC wrote guidelines restricting the use of employment tests despite the lack of clear statutory authority, designed a national reporting system for minority employment that Blumrosen himself acknowledged wasn’t authorized under the “plain meaning” of the Civil Rights Act, and redefined discrimination in terms of “disparate impact”—measured according to employment numbers—rather than disparate treatment.
Blumrosen found an ally in Republican George P. Shultz (1920-2021). Shultz, a University of Chicago professor, argued in a 1968 speech that “special measures” rather than “business as usual” were necessary to boost black employment numbers. As President Richard Nixon’s labor secretary, Shultz supported rules that directed companies bidding for federal contracts to hire more minorities. Officials expanded the preferences to cover not only blacks but Asian-Americans, Native Americans and “Spanish surnamed” Americans, defined as “persons of Mexican, Puerto Rican, Cuban or Spanish origin or ancestry.”
