E-Pluribus | March 26, 2024
DEI on the ropes; regulating regulating, via the Supreme Court; and when is eugenics not eugenics?
A round-up of the latest and best musings on the rise of illiberalism in the public discourse:
Dan Lennington: DEI’s Achilles’ Heel
Perhaps reports of the demise of DEI have been greatly exaggerated, Mark Twain-like. But there are indications it is losing some ground at least. Dan Lennington at National Review writes that the movement’s inability to define who DEI is intended to help and how that help is justified constitutionally is a big reason why.
Whom is DEI supposed to help and why? This shouldn’t be a trick question, but those responsible for pushing “diversity, equity, and inclusion” haven’t thought much about the answer. And, as it turns out, this may be a fatal legal flaw for DEI programs nationwide.
Since 2020, DEI-inspired programs have exploded. Policy-makers have redistributed billions to minorities in the name of “equity”[.]
[. . .]
The work of defining “minority” raises more questions than answers. Since the 1970s, the United States government has identified four minority categories: “Asian,” “American Indian,” “African American/Black,” and “Hispanic.” DEI programs have largely followed suit and, for the most part, still use these antiquated racial categories. But in the world of racial taxonomy, for example, Asians are apparently not people who come from Asia. The Middle East, while obviously in Asia, is almost never considered part of Asia under DEI’s racial calculus. And northern Asia, from Afghanistan to Mongolia, is similarly not “Asian” enough to be included.
[. . .]
At bottom, all these categories are arbitrary at best and bigoted at worst.
Courts have started to take notice. In striking down racial preferences in the federal Restaurant Revitalization Fund, Sixth Circuit judge Amul Thapar criticized the program’s racial line-drawing as “scattershot,” writing: “Individuals who trace their ancestry to Pakistan and India qualify for special treatment. But those from Afghanistan, Iran, and Iraq do not. Those from China, Japan, and Hong Kong all qualify. But those from Tunisia, Libya, and Morocco do not.” Another federal judge struck down the Small Business Administration’s race-based contracting program in part because it relied on “arbitrary line drawing” by excluding “Central Asian Americans” and “Arab Americans.”
[. . .]
These inadequacies are critical because, under federal law, all race-based programs must be “narrowly tailored.” This means that a DEI program must precisely target the harm it purports to cure. DEI-policy-makers and program administrators must explain why they are helping some racial groups rather than others. Attorneys of victims of DEI should recognize this straightforward and relatively cost-effective method of challenging the doctrine: Attacking the arbitrary and ill-defined racial categories, thereby forcing defendants to explain whom they are helping and why. This is a legal burden that defendants in such cases must bear — and so far, they’ve failed. None has adequately justified the typical racial categories, and no judge has ever found them sufficiently precise.
Read it all here.
Molly E. Nixon: The End of Chevron
No, this is not an article about a Big Oil giant being taken down by climate activists. “Chevron,” rather, is shorthand for a Supreme Court decision that figured heavily in court cases involving the power and authority of federal agencies. The subject is complicated, but Molly Nixon at Discourse Magazine explains why Chevron should be overturned and how a case currently before the Supreme Court could bring that about.
Currently, if judges find themselves incapable of determining the meaning of statutory language after employing all the legal profession’s tools of interpretation, the 1984 opinion in Chevron v. Natural Resources Defense Council instructs courts to defer to a federal agency’s reasonable interpretation of the statute, even if those judges find another interpretation more persuasive. In other words, Chevron puts a thumb on the scale of the government against Americans in cases where Congress has failed to make itself clear.
At first glance, that’s not an unreasonable choice. No statute can be perfectly precise, and those who want to maintain deference to administrative agencies in the absence of congressional clarity point out that agency staff have technical knowledge that merits substantial weight. I worked as a lawyer at an agency administering technically complex regimes and agree that such expertise is valuable and should be carefully considered.
But Chevron tips the scales only after agency experts have already failed to persuade the court that their position is the better interpretation under the law. That should be rare when agency staff are regulating in accordance with the authority and discretion afforded to them by Congress and when judges have a multitude of interpretive tools they can use to resolve even tricky questions about the meaning of statutory texts. If judges are left mystified after employing all those tools, Congress needs to do a better job of writing statutes. But such a failure by one branch of government does not justify judicial favoritism toward another branch of government against the public.
[. . .]
The question, then, is whether statutory silence authorizes an agency to impose those costs on fishermen. A court resolving that question is not making a policy call; it’s interpreting the statutory text. And whether a federal agency that derives its authority from a statute is acting permissibly under that statute is exactly the sort of legal question that courts are empowered to make. Indeed, in regulatory law classes throughout the country, students grapple with the meaning of statutory silence, sometimes before they’re required to take even fundamental classes such as property or constitutional law.
[. . .]
Forcing judges to use their interpretive tools to find the best reading of statutory text—when the experts, represented by some of the best lawyers in the country, have failed to persuade those judges of their own reading—is not policymaking any more than forcing a judge to rule on the meaning of a statute in the absence of agency regulation is policymaking.
Moreover, for those who argue that agencies possess the necessary expertise to best apply the law, a ruling for those challenging Chevron deference in these cases would not preclude Congress from relying on that expertise. Take, for example, the meaning of “stationary source” under the Clean Air Act, the question at issue in Chevron itself. Mindful of limits on its ability to delegate its legislative power, Congress could nevertheless confer some definitional authority to the EPA in the text of that statute, and the agency would be back in the ball game in employing its expertise, now with statutory authority and direction rather than ambiguity or silence.
[. . .]
Chevron proponents argue that when Congress fails to speak clearly or at all on a matter, agency deference permits the executive branch—democratically accountable at least in the president—to make those calls instead of the unelected judiciary.
[. . .]
In a world where democracies are flirting with authoritarianism, tasking Alexander Hamilton’s “least dangerous branch,” the courts, with the unbiased resolution of disputes between individuals and the government is more prudent than ever—far from the harbinger of institutional demise that some Chevron boosters suggest. For example, immigrants fighting a government trying to deport them or veterans seeking benefits to which are entitled would surely want the judge deciding their cases to be neutral rather than putting a thumb on the scale for their adversary, the government.
[. . .]
Doing away with Chevron deference is legally correct and would better reflect the constitutional roles of the three branches of government. But the handwringing of Chevron proponents about the potential consequences of such a decision is probably not justified; nor is the optimism of those who hope to see Chevron overturned.
[. . .]
There will always be laws significant numbers of Americans disagree with. But while most Americans were once taught Chief Justice John Marshall’s declaration in Marbury v. Madison that it “is emphatically the province and duty of the judicial department to say what the law is,” it is as emphatically Congress’ province and duty to write those laws. And, unlike judges and agency experts, Americans can vote out their congressional representatives every few years.
Read it all.
Amy S.F. Lutz: When Everything is Eugenics, Nothing Is
Eugenics as understood by the (horrifying) examples in the 20th century is rightly rejected by nearly everyone. Writing for Persuasion, however, Amy Lutz, herself the mother of a profoundly autistic son, argues that care must be taken not to stretch the meaning to include any attempt to limit or reduce the devastating impacts of some genetic disabilities.
Papers published in academic journals rarely capture public attention, but last year a study from Social Science and Medicine – Qualitative Research in Health was picked up by a variety of mass media outlets. The paper focused on whether testosterone therapy should be discontinued in transgender men during pregnancy, but that wasn’t the reason for the coverage. What got everyone’s attention was rather the authors’ shocking dismissal of the increased risk of metabolic, urogenital, and neurodevelopmental conditions in babies exposed to testosterone. One of the reasons given was: “The desire to maximize the ‘fitness’ of offspring, and guard against development of conditions or human characteristics considered ‘unhealthy’ or less than ideal, may reflect troubling eugenicist and biomedical moralist underpinnings in ways that further harm already socially-marginalized people.”
The belief that disability is not inherently bad isn’t new. Social models that locate disability in the mismatch between people and their environments, not in individual bodies, have long been endorsed by some disability studies scholars—most recently by Elizabeth Barnes in her “value-neutral” model, in which she defines disability as “mere-difference.” But this has never been a consensus position. As feminist philosopher Susan Wendell pointed out almost thirty years ago, there is “much suffering and limitation” that social justice and cultural change cannot fix.
So I was surprised when, six months after the paper was published, the very mainstream National Institutes of Health (NIH) announced that they were considering removing the goal of reducing disability from its mission statement at the recommendation of an advisory committee that blasted the idea that disabled people need to be “fixed” as “ableist.” It was a surreal conversation to follow as the mother of a profoundly autistic son, Jonah, 25. We don’t talk about “cure” very much anymore, given that scientists seem no closer to identifying one than they were when Jonah was diagnosed more than two decades ago, but as a thought experiment? Not only would I cure him if it were possible, but if I could eradicate profound autism in future generations, I would without hesitation. Now, considering the tenor of these online debates, I was forced to consider: did that make me a eugenicist?
[. . .]
Because disability is not neutral in our house. Jonah will never have a meaningful career or a romantic relationship. He will never understand politics, geography, history, or philosophy. He can’t follow the plot of Star Wars or even Paw Patrol, choosing instead the Sesame Street music compilations we had on VHS when he was a toddler, which kind souls have since uploaded to YouTube. There’s nothing wrong with Sesame Street—we quote it so often, even when Jonah isn’t around (“I told you, it wouldn’t be easy”; “I guess not every crazy idea works”; “I might even say it’s Oscar-worthy!”) that I think of it as our family’s love language. But no one would choose this extraordinarily constrained life—not for themselves, or for their children.
Does that make me a eugenicist? Impossible to answer. If promoting the health of fetuses with the goal of preventing disability counts as eugenics, then anyone who has ever taken a prenatal vitamin, or avoided alcohol or sushi during pregnancy is a eugenicist.
By crafting a definitional net that captures everyone in it, disability advocates risk rendering the term essentially meaningless, keeping us from identifying morally problematic practices that truly harm disabled people.
[. . .]
Some disability advocates play “eugenics”—and the related accusation of “ableism”—as the ultimate trump card, shutting down conversations that fail to comport with their fantastical view of disability as a “neutral” difference. But we, the parents of profoundly disabled children, need to be able to say: this is hard. Or even: this is impossible.
[. . .]
If NIH removes the goal of reducing disability from their mission statement, they will fail every single one of these families, and push an already marginalized population so far out of public discourse that they—and their intensive, lifelong needs—will become virtually invisible.
Read the whole thing.
Around Twitter (X)
Here’s the beginning of a longer thread (click for the whole thing) from Oren Cass on how the political views of Americans line up with the two major political parties and how it may differ from expectations. Are Republicans and Democrats all that different?
What about mis- versus dis- when it comes to information? The Foundation for Individual Rights and Expression has a long-form single tweet answering that question:
And finally, classical liberalism is social justice? Click for a short video clip of an Erec Smith interview from Human Progress that includes that provocative suggestion.