Government Control

In framing a government which is to be administered by men over men the great difficulty lies in this: You must first enable the government to control the governed, and in the next place, oblige it to control itself. Alexander Hamilton

The Founders framed a Constitution that would “oblige government to control itself.” Rooted in the rule of law, circumscribed by the Constitution, government would be restrained from arbitrary edicts that impinge on the liberties of the people.  However, the Founders also knew that no document could stand between the people and tyranny if the people were not vigilant in defense of their liberties. James Madison spoke to that point when he wrote,

I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.

Those encroachments, just as Madison described them, have been “gradual and silent” and they have been happening for generations. Now, an opportunistic president has so accelerated their pace that even the most complacent among us can no longer ignore them. Some violations have been of the “in your face” variety, enacted over public protest. The health care bill being an obvious example.

Many, due to the connivance of the major media, have mostly escaped notice. The FTC “draft’ regulations to license journalists and federally subsidize government selected media is only one example. (See previous post Too Liberal To Fail.)

The virtual news black-out of the Justice Department’s disregard for the rule of law in the Black Panther voter intimidation case is particularly egregious.

All the  “encroachments” of the Obama administration are too many to detail here. However, enforcement of Executive Order 13166 needs to be on the list. It was signed by President Clinton in the last days of his administration. George W. Bush should have revoked it, but for reasons unknown, he did not.

As explained in a paper by the Pacific Legal Foundation:

EO 13166,  “Improving Access to Services for Persons with Limited English Proficiency, directs all federal agencies to adopt a plan to ‘improve access’ to federally funded programs for persons who do not speak English. The order states that each Federal agency must develop plans and implement systems consistent with the ‘general guidance document’ issued by the Department of Justice. This document was to set forth ‘the compliance standards that recipients must follow to ensure that the programs and activities they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of Title VI of the Civil Rights Act of 1964, as amended, and its implementing regulations.’”

As this passage indicates, the executive order blurs the important distinction between language and national origin. In doing so, it ignores three decades of judicial rejection of the notion of equating language with national origin under Titles VI and VII of the Civil Rights Act.

Title VI prohibits ‘discrimination under any program or activity receiving Federal financial assistance’ against any person in the United States ‘on the ground of race, color, or national origin.’ On its face, Title VI prohibits national origin discrimination. However, neither language nor LEP status are mentioned. The legislative history of Title VI is silent as to these classifications. Similarly, HHS’ regulation adopted pursuant to Title VI prohibits national origin discrimination and is silent on the question of language.

In short, every recipient of federal funds must provide interpreters and translations for people who don’t speak English or be prosecuted for civil rights violations. In effect, EO13166 creates an entitlement to translation services for some 500 speakers of languages other than English who reside in the United States. Not incidentally, nowhere in the guidelines for enforcement is any distinction made between US citizens and those here illegally. Neither is this distinction made in EO 13166.

A letter to the Civil Rights Division, U.S. Department of Justice issued in 2000 by the
Center for Equal Opportunity also questions the statutory authority of Title VI.

“On its face, Title VI prohibits only intentional discrimination.”  That does not provide statutory authority “to ban actions that are not intentionally discriminatory. Alexander v. Sandoval, 121 S. Ct. 1511 (2001) reaffirms the Supreme Court’s earlier pronouncements that Title VI bans only disparate treatment, not actions that have only disproportionate effects on this or that racial or ethnic group. Since Congress cannot transform a disparate-treatment ban into a disparate-impact ban, see City of Boerne v. Flores, 521 U.S. 507 (1997), it seems fair to conclude that a federal agency also lacks this authority.

Such a transformation is additionally problematic because a ban on disproportionate effects will in fact encourage race-consciousness and disparate treatment—the very behavior that Congress sought to ban.
Because Title VI regulations are applied to states (as they frequently are), problems are raised under Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985), because Congress has not approved such incursions on state authority….”

The Center for Equal Opportunity also points out that equating the use of English with national-origin discrimination is absurd.

Ability to speak English and ethnicity are obviously distinct qualities.  Some people of a particular national origin will not be able to speak English well, but others will.  Conversely, some people not of that particular national origin will also not be able to speak English well.  Thus, the courts have overwhelmingly rejected claims that employers with a preference or even a requirement for speaking English—practices that go much further than the mere failure to make the positive accommodations that the guidance would require—are discriminating on the basis of national origin.

The long reach of 13166 is explained in a paper published by JEFFTRAN Public Transit Operator for Jefferson City, Missouri.

Not only do all federal agencies have to develop LEP Plans as a condition of receiving federal financial assistance, but recipients of federal funds, such as the City of Jefferson, must comply with Title VI and LEP guidelines of the federal agency from which funds are provided. Federal financial assistance including grants, training, use of equipment, donations of surplus property, and other forms of financial contributions from federal sources. Recipients of federal funds range from state and local agencies, to nonprofits, and other organizations. Title VI covers a recipient’s entire program or activity, which means all parts of a recipient’s operations are covered. This is true even if only one part of the recipient receives the federal assistance. Simply put, any organization that receives federal financial assistance is required to follow Executive Order 13166. JEFFTRAN must comply with these guidelines because it receives funding from the US Department of Transportation (USDOT) via the Federal Transit Administration.”

The proponents of 13166 rely on a “when did you stop beating your wife” formulation. Because most Title VI recipients communicate in English does not of itself prove discriminatory intent. The use of English, as pointed out by the Center for Equal Opportunity, is quite reasonably based on ease, convenience, and thrift.

Because neither the Clinton nor the Bush administrations issued written guidelines, enforcement of EO 13166 has been somewhat problematic. The Obama administration however, intends enforcement. For President Obama, who proclaims himself a citizen of the world, enforcing EO 13166 is in keeping with his desire to overcome the narrow confines of nationalism.

On June 17, the Federal Register, Vol. 75, No. 116, published an announcement that the Office for Civil Rights and Civil Liberties is requesting comment on Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons.

The full cost of complying with EO 13166 is as yet unknown. Extrapolating from the JEFFTRAN listing of entities receiving federal funds, it will be enormous.

In addition to levying this new burden on an economy in recession and all that portends, EO 13166 is culturally divisive. The unspoken message from the Obama administration is that learning English is unimportant. Most Americans have a contrary opinion. Americans understand that a nation needs a common language, because it helps to unite us as a people. It is what makes us e pluribus unum.