On February 16, Joe Biden issued an order titled “Executive Order on Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” The order demands “equity” throughout federal agencies. “Equity” is simply a fancy word for race discrimination.
Earlier today, U.S. Civil Rights Commissioner Peter Kirsanow wrote to House Judiciary Committee Chairman Jim Jordan, urging Congress to take action against Biden’s race discrimination order. Kirsanow’s letter is long–eight pages–and is embedded below. It is all well worth reading. I want to emphasize Peter’s conclusion, which explains why Biden’s order is unconstitutional and recommends Congressional responses:
There are at least two reasons why Congress should be alarmed about this executive order. First, the executive order essentially upends the civil rights statutes. It is the province of Congress, not the executive branch, to pass legislation. This executive order, on its own terms, completely rewrites the civil rights statutes, laws and regulations regarding contracting and funding, and the civil service system. It is respectfully submitted that Congress should not allow its legislative prerogatives to be usurped by another branch of government.
Second, the substance of the executive order is unconstitutional. The executive order directs federal agencies to deliberately discriminate on the basis of race. This violates the Fifth and Fourteenth Amendments’ guarantees of equal protection.20 The guarantee of equal protection is a guarantee to individuals, not to groups. As the Supreme Court has stated, “The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.”21 Ostensibly benign or remedial racial discrimination is still racial discrimination.
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The executive order makes no effort to show a compelling government interest, much less to narrowly tailor a race-conscious remedy. The Supreme Court has repeatedly stated that “societal discrimination” cannot be used as the basis for a racially discriminatory remedy.23 Nor is achieving racial proportionality – the very goal of “equity” – a compelling state interest.24It is perhaps superfluous to note that a “whole of government” approach is the opposite of narrow tailoring.
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It is not an exaggeration to say that the goal of this executive order is to remake the federal government and, as a consequence, the entire country. I urge Congress to take immediate action to defend the Constitution’s guarantee of equal protection to individuals and Congress’s own constitutional prerogatives as the legislative branch of government. At a minimum, Congress should do two things: 1) Hold hearings about this executive order, its purpose, and its implementation; 2) In the next appropriations bill, forbid any appropriations from being expended on any agency equity teams, agency equity plans, incorporation of equity into any performance plans, or anything else mentioned in this executive order.
It is going to be up to the Supreme Court to save us from federally-mandated race discrimination. Happily, I think the votes are there to do so.
This is Kirsanow’s letter:
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