December 18, 2019


The executive order on anti-Semitism is illegal (Joshua Z. Rokach, DEC 18, 2019, Times of Israel)

The president had no authority to issue the order. It requires an Act of Congress. The Orthodox Union wrote in its statement, "Legislation to enact this policy has been supported... for years and sponsored by a broad set of bipartisan leaders... Yet, it has failed to pass Congress."

To quote Shakespeare, "Aye, there's the rub."

The US Supreme Court's landmark case rejecting as unconstitutional President Harry Truman's seizure of steel mills, under his war powers, at the height of the Korean War established the modern boundaries between executive and congressional authority. Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952). Justice Robert Jackson's concurring opinion, setting out the most expansive view of the majority, listed three circumstances in which the issue arises. 1) A president acting under a law; 2) A president acting when no law exists on the matter; and 3) A president acting incompatibly with the law. The president has the most power in the first instance and the least, if any, in the third.

Here, since members of Congress advocating for the new policy thought they needed to pass a law to achieve that result, the first category does not apply. Not only does no law exist, but Congress failed to pass the proposal the executive order enshrines. Nowadays, rather than reject a bill,Congress does not take it up. In effect, Congress rejected the provisions that found their way into the executive order.

Moreover, the executive order runs counter to the provisions of Title VI.

The mechanics work as follows. Title VI of the Civil Rights Act of 1964, 42 USC ยง2000d, et seq., prohibits recipients of federal funds or financial assistance from discriminating on the basis of "race, color, or national origin." In contrast, Title VII of the Act, which prohibits discrimination in employment includes "religion" as well as race, color and national origin. To reach its result, the administration had to classify Jews, not only as members of a religion, but having a distinct "national origin." Jared Kushner wrote in the New York Times that his father-in-law's order does not classify Jews as a nation. Yet Mr. Kushner claimed that Title VI applies to Jews. He put forth the following convoluted argument: Title VI applies "to the extent that Jews are discriminated against for ethnic, racial or national characteristics."

In fact, "national origin" within the meaning of Title VI does not cover Jews. Neither the conservatives' version of statutory interpretation, nor that of progressives allows for such a reading. Conservatives place sole reliance on the "original intent" of laws. For that, they look to the meaning of the words at the time of the law's enactment. Not just the dictionary, but prior usage, determines the result. Using that standard, "national origin" means "country of birth."

Posted by at December 18, 2019 4:00 AM