The Dictatorship
Trump’s new attack on the Civil Rights Act is a license to discriminate
President Donald Trump swung his executive wrecking ball on Wednesday at a key component of the Civil Rights Act of 1964, in a move that threatens decades of anti-discrimination efforts. Under a new executive order with the Orwellian title “Restoring Equality of Opportunity and Meritocracy,” his administration will deprioritize enforcement of statutes and regulations that cover “disparate impact liability.” In attacking this critical legal tool in the name of supposed “meritocracy,” Trump is greenlighting rampant discrimination — as long as you’re subtle about it.
Trump is greenlighting rampant discrimination — as long as you’re subtle about it
Imagine a business has a “Help Wanted” sign in its window, but below that is another that reads “No Black applicants allowed.” This would be a clear violation of anti-discrimination laws. But suppose instead the business specifies that applicants can only live in a certain part of town — one that happens to be both extremely affluent and very white. Under Title VII of the 1964 Civil Rights Actthat business could be sued for a hiring practice that seems neutral on its face but still produces a discriminatory effect.Importantly, such discriminatory effects don’t have to be maliciousor even intentional, under the disparate impact standard. The effects of long-term systemic racism, sexism and other prejudices are, after all, often hard to prove via a “smoking gun” of blatant discrimination. In 1971’s Griggs v. Duke Power Co., the Supreme Court upheld Title VII’s provisions to ensure that equal employment opportunity exists across the board. Chief Justice Warren Burger wrote for the majority that “Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox.”
Like most of Trump’s crusade against “diversity, equity and inclusion” standards, this executive order turns the idea of discrimination on its head to argue that disparate impact “violates the Constitution’s guarantee of equal treatment for all by requiring race-oriented policies and practices to rebalance outcomes along racial lines.” It builds off long-running conservative animus toward the legal tool of Title VII, premised on claims that employers have been forced to focus on race and sex at the expense of other qualifications in hiring and promotions. It’s basically the same argument we’ve heard for yearsone where companies are accused of discriminating against white men in favor of hiring, for example, a supposedly less qualified Black woman instead.Trump can’t completely strike the provision from the books because Congress codified the Griggs decision further into law in a 1991 update to the Civil Rights Act. But he’s still told his administration to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.” This effort also includes, as The Washington Post explainedhaving Attorney General Pam Bondi revoke Justice Department regulations “that bar any program receiving federal financial support from discrimination based on ‘race, color, or national origin.’”
This latest executive order is part and parcel with Trump’s overarching attack on his perceived enemies, be they legal, political or ideological in nature.
This latest executive order is part and parcel with Trump’s overarching attack on his perceived enemies, be they legal, political or ideological in nature. The New York Times reported that last month the Equal Employment Opportunity Commission “began questioning the hiring practices of 20 of the country’s biggest law firms” — many of which have been targeted for opposing Trump — “claiming that their efforts to recruit Black and Hispanic lawyers and create a more diverse work force may have potentially discriminated against white candidates.” The administration has also slashed funding for enforcement of the Fair Housing Acta 1968 law that Trump himself ran afoul of as a New York real estate manager back in the 1970s.The attack on disparate impact is especially pernicious, given how this change will bolster the less obvious forms of racist or sexist bias that the law sought to uproot. Last year, the Brookings Institution’s Chiraag Bains examined how updated disparate impact laws are crucial to preventing “algorithmic discrimination” as the use of artificial intelligence spreads. While most programmers aren’t purposefully coding programs to harm minority users, those biases can still easily seep into their work. Without disparate impact analyses, proving the harm from seemingly innocuous lines of code will be more difficult.
As for the supposed vindication of meritocracy that the executive order promises, it’s hard to think of a less appropriate vehicle for that principle than Trump. He is himself a mogul only by merit of inheritancewho has fallen upward over the decades despite his many failures. Further, as BLN senior contributor Michele Norris put it, Trump’s attacks on DEI are “particularly hypocritical from a president who has appointed Cabinet members whose experience falls far below the historically established standard for their positions.”
Trump’s inner circle is hardly a model of the meritocracy at work. The latest scandals swirling around Defense Secretary Pete Hegseth don’t exactly paint him as an upgrade from former Pentagon chief Lloyd Austin. The slapdash decision-making by the phalanx of young acolytes that surround billionaire Elon Musk at the Department of Government Efficiency doesn’t seem like the work of the most qualified or experienced people.
America’s civil rights laws were meant not just to grant minorities equal protection under the law but to begin to undo centuries of legal harms against them. The conservative movement today would have us believe that we’re at the point where things are so much better that the oppressors are now being oppressed. In appropriating the language of civil rights laws, Trump has twisted and subverted them to reinforce the very disadvantages that they were meant to topple, all in defense of the still reigning majority.
Hayes Brown is a writer and editor for BLN Daily, where he helps frame the news of the day for readers. He was previously at BuzzFeed News and holds a degree in international relations from Michigan State University.
The Dictatorship
Justice Jackson chides ‘oblivious’ Supreme Court conservatives…
WASHINGTON (AP) — Supreme CourtJustice Ketanji Brown Jackson has delivered a sustained attack on her conservative colleagues’ use of emergency orders to benefit the Trump administration, calling the orders “scratch-paper musings” that can “seem oblivious and thus ring hollow.”
The court’s newest justice, Jackson delivered a lengthy assessment of roughly two dozen court orders issued last year that allowed President Donald Trump to put in place controversial policies on immigration, steep federal funding cuts and other topics, after lower courts found they were likely illegal.
While designed to be short-term, those orders have largely allowed Trump to move ahead — for now — with key parts of his sweeping agenda.
Jackson spoke for nearly an hour on Monday at Yale Law School, which posted a video of the event on Wednesday.
Last week, Justice Sonia Sotomayor similarly talked about emergency orders in an event Tuesday at the University of Alabama that also took issue with the conservatives’ approach.
Jackson has previously criticized the emergency orders both in dissenting opinions and in an unusual appearance with Justice Brett Kavanaugh last month. But her talk at Yale, addressing the public rather than the other eight justices, was notable.
She referred to orders, which often are issued with little or no explanation as “back-of-the-envelope, first-blush impressions of the merits of the legal issue.”
Worse still, she said, was that the court then insists that “those scratch-paper musings” be applied by lower courts in other cases.
The orders suffer from an additional problem, she said, a failure to acknowledge that real people are involved, making them “seem oblivious and thus ring hollow.”
She also pushed back on the court’s assessment that preventing the president from putting his policy in place also is a harm that often outweighs what the challengers to a policy might face.
“The president of the United States, though he may be harmed in an abstract way, he certainly isn’t harmed if what he wants to do is illegal,” Jackson said during a question-and-answer session with law school dean Cristina Rodriguez.
The court used to be reluctant to step into cases early in the legal process, she said. “There is value in avoiding having the court continually touching the third rail of every divisive policy issue in American life,” Jackson said.
While she said she couldn’t explain the change, “in recent years, the Supreme Court has taken a decidedly different approach to addressing emergency stay applications. It has been noticeably less restrained, especially with respect to pending cases that involve controversial matters.”
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Jackson, often joined by Sotomayor and Justice Elena Kagan, has frequently dissented.
There have been conversations about emergency orders among the justices, Jackson said, but she decided to speak publicly with the goal of being “a catalyst for change.”
Also on Wednesday, Sotomayor issued a rare public apology to another justice, Kavanaugh, for what she termed “hurtful comments” she made last week during an appearance at the University of Kansas law school.
Referencing an opinion Kavanaugh wrote in an immigration case where the court granted an emergency order sought by the administration, Sotomayor said her colleague “probably doesn’t really know any person who works by the hour.” Her remarks were reported by Bloomberg Law.
The Dictatorship
Trump threatens to fire Powell if the Fed Chair remains with central bank after his term ends
WASHINGTON (AP) — Federal prosecutors made an unannounced visit this week to a construction site at Federal Reserve headquarters that is the focus of an investigation into a $2.5 billion renovation projectaccording to two people familiar with the visit.
Two prosecutors and an investigator from U.S. Attorney Jeanine Pirro’s office were turned away on Tuesday by a building contractor and referred to Fed attorneys, one of the people said. The two people familiar with the visit spoke on condition of anonymity because they weren’t authorized to publicly discuss an ongoing investigation.
The visit underscores that the Trump administration is not backing down from its investigation of the Fed and its chair, Jerome Powell, even though the probe has delayed the confirmation of a new chair nominated by President Donald Trump. The investigation is focused on cost overruns and brief testimony about the project last summer by Powell. Trump confirmed in an interview that aired Wednesday on Fox Business that he wants to continue the probe.
Last month, during a closed-door hearing before a federal judge, a top deputy from Pirro’s office conceded that they hadn’t found any evidence of a crime in their investigation of the headquarters project.
Robert Hur, an attorney for the Federal Reserve board of governors, sent an email to Pirro’s prosecutors about their visit and their request for a “tour” to “check on progress” at the construction site. Hur’s email, which The Associated Press has viewed, noted that U.S. District Judge James Boasberg concluded that their interest in the Federal Reserve’s renovation project was “pretextual.”
AP AUDIO: Prosecutors sought access to Federal Reserve building as Trump threatens to fire Powell
AP Washington correspondent Sagar Meghani reports on more drama surrounding a federal probe of a massive construction project at the Federal Reserve’s headquarters.
“Should you wish to challenge that finding, the courts provide an avenue for you; it is not appropriate for you to try to circumvent it,” Hur wrote.
Republican Tillis is key vote
Sen. Thom Tillis, a North Carolina Republican who is a key member of the Senate Banking Committee, has vowed to vote against Kevin WarshTrump’s nominee to replace Powell as Fed chair, until the investigation is dropped. With the committee closely divided on partisan lines, Tillis’ opposition is enough to block Warsh from receiving the committee’s approval.
Tillis on Wednesday criticized the investigation as “bogus, ill-timed, ill-informed” and repeated that seven Republican members of the banking panel have said they do not believe Powell committed a crime when he testified last June.
Tillis also said there aren’t enough votes on the committee or in the broader Senate to do an end-run around the committee and get Warsh confirmed some other way.
“There really is no path,” he told reporters, adding that Pirro and her aides were “asleep at the switch” because the investigation has essentially delayed Powell’s departure from the Fed, despite Trump’s obsessive criticism of the Fed chair. Powell has now said he won’t leave until the investigation is resolved.
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Tillis suggested Pirro blindsided the White House with her investigation. “They should have consulted with the White House, because I’m sure if they would have, (the White House) would have said, ‘no, we can wait,’” until Powell steps down.
But Kevin Hassett, the Trump administration’s top economist, said Wednesday that the Justice Department got involved because “the president wanted to investigate the cost overrun,” Axios reported.
The Banking panel said Tuesday that it will hold a hearing on Warsh’s nomination April 21. Powell’s term as Fed chair ends May 15, but Powell said last month he would remain as chair until a replacement is named.
Powell is serving a separate term as a member of the Fed’s governing board that lasts until January 2028. Chairs typically leave the board when their terms as chair end, but they can remain on the board if they choose. Powell has said he won’t leave until the investigation is resolved. If he remains it would deny Trump the opportunity to appoint someone else to the seven-member board.
Late Tuesday Tillis posted a link on social media to The Wall Street Journal’s article on the visit below an image of the Three Stooges and wrote, “The U.S. Attorney’s Office for D.C. at the crime scene.”
Investigation centers on building renovations
The investigation centers on an appearance by Powell before the Banking Committee last June, when he was asked about cost overruns on the renovations. The most recent estimates from the Fed suggest the current estimated cost of $2.5 billion is about $600 million higher than a 2022 estimate of $1.9 billion.
“It is probably corrupt, but what it really is, is incompetent,” Trump said. “Don’t you think we have to find out what happened there?”
The president’s support for the investigation threatens a timeframe set out by Sen. Tim Scott, a South Carolina Republican who chairs the Banking Committee. Scott said Tuesday on Fox Business that he believed the investigation would be “wrapped up in the next few weeks,” allowing Warsh to be confirmed soon after.
Threat to fire Powell
News of the unannounced visit by prosecutors comes as Trump has again threatened to fire Powell, if the Federal Reserve Chair decides to stay on the central bank’s governing board after his term as chair expires next month.
“Well then I’ll have to fire him, OK?” Trump said.
Trump has for months wanted to remove Powell, saying he has been too slow in orchestrating interest rate cuts that would give the U.S. economy a quick boost. Powell has said the investigation is a pretext to undermine the Fed’s independence to set rates.
Sen. Josh Hawley, a Missouri Republican, said Trump can only fire Powell “for cause,” meaning some kind of misconduct, “so that’s a pretty tall order.”
Supreme Court weighing another Trump removal
Trump’s threat to fire Powell comes as the Supreme Court is weighing the president’s effort to remove another central bank governor, Lisa Cook. Lower courts have so far allowed Cook to remain in her job while her legal challenge to the firing continues. The Supreme Court also seemed likely to keep her on the Fed when the court heard arguments in January. A decision could come any time.
The issue in Cook’s case is whether allegations of mortgage fraud, which she has denied, is a sufficient reason to fire her or a mere pretext masking Trump’s desire to exert more control over U.S. interest rate policy.
The Supreme Court has allowed the firings of the heads of other governmental agencies at the president’s discretion, with no claim that they did anything wrong, while also signaling that it is approaching the independence of the nation’s central bank more cautiouslycalling the Fed “a uniquely structured, quasi-private entity.”
___
AP Writers Seung Min Kim, Mark Sherman, Paul Wiseman, Alanna Durkin Richer, and video journalist Nathan Ellgren contributed to this report.
The Dictatorship
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