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.