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On ObamaCare, Beware the ‘Not Required’ Argument

Whenever a politician says nothing in his proposed legislation requires this or that, you can be pretty sure that both this and that will be crammed down the public’s throat in short order.

by
John Rosenberg

Bio

September 25, 2009 - 12:00 am

As George Will recently noted, President Obama has slyly but significantly revised the wording of his repeated assurance that everyone satisfied with their current health insurance will be able to keep it:

His slippery new formulation is that nothing in his plan will “require” anyone to change coverage. He used to say, “If you like your health care plan, you’ll be able to keep your health care plan, period.” He had to stop saying that because various disinterested analysts agree that his plan will give many employers incentives to stop providing coverage for employees.

Voters, however, should be wary of regulation-addicted statist officials trying to reassure them about what sweeping legislation does not require. Indeed, whenever a politician says nothing in his proposed legislation requires this or that, you can be pretty sure that both this and that will be crammed down the public’s throat in short order. For confirmation, one need look no further than the landmark Civil Rights Act of 1964.

The fear that the act would lead to preferential treatment was so central and so contentious that it was the subject of a joint memorandum submitted to the Senate by the floor captains of the bill, Senators Clark (D-PA) and Case (R-NJ), which emphasized that it would not:

There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual.

That guarantee was written into the act as Section 703 (j), which provides that nothing in the act:

shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee … to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin.

That same guarantee pervaded the language of Title VII, such as Section 703 (d):

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

This language was so clear and so pervasive that in United Steel Workers v. Weber, 443 U.S. 193 (1979), Chief Justice Burger was moved to write:

Often we have difficulty interpreting statutes either because of imprecise drafting or because legislative compromises have produced genuine ambiguities. But here there is no lack of clarity, no ambiguity.

The unambiguous clarity of this and other language notwithstanding, however, Chief Justice Burger was in the minority, writing a dissent. The case involved a training program at a Kaiser aluminum plant for craft jobs that reserved 50 percent of the positions for blacks and provided that blacks and whites would be selected on the basis of seniority within their racial group. Brian Weber, a white who was not selected, had more seniority than two of the successful black applicants. He sued and lost because the justices reached a result that, according to Chief Justice Burger in dissent, was “contrary to the explicit language of the statute.”

Justice Rehnquist also dissented, dumbfounded by the majority’s reasoning:

Were Congress to act today specifically to prohibit the type of racial discrimination suffered by Weber, it would be hard pressed to draft language better tailored to the task than that found in § 703 (d) of Title VII. …

Equally suited to the task would be § 703 (a) (2), which makes it unlawful for an employer to classify his employees “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

How, then, did the Court overcome or avoid all this language where, as Chief Justice Burger put it, “there is no lack of clarity, no ambiguity” and amend “the statute to do precisely what both its sponsors and its opponents agreed the statute was not intended to do”?

Easy. The majority relied on Section 703 (j)’s insistence that nothing in the act “shall be interpreted to require” preferential treatment to decide, as Justice Brennan put it in his opinion for the Court, that “since the Kaiser-USWA plan was adopted voluntarily, we are not concerned with what Title VII requires.” And thus bequeathed to us a generation of near-universal racial preference in hiring, training, and promotion.

The liberal majority thus “construed” the Civil Rights Act to mean the opposite of what its framers clearly intended, but this was not a Supreme Court run amuck. Liberal judges often “construe” legislative language to reach desired ends that a common understanding of the words would prohibit. (See here, here, here, and here for an extended discussion of how liberals “construe” texts.) The Court’s construal, however, was not an aberration; its “construction” (more like a reconstruction) accurately reflected the liberalism of the late 1970s (and beyond) and was sanctified by the leading liberal legal philosopher of his generation, Ronald Dworkin, who defended Brennan’s majority opinion:

Section 703 (j) … said that nothing in Title VII “shall be interpreted to require any employer … to grant preferential treatment to any individual or to any group. … ” Mr. Justice Brennan … emphasized that this new provision said only that affirmative action was not required, not that voluntary affirmative action was prohibited. [Page 325]

Dworkin reminds me of another great philosopher, my mother, who was often heard to remark as she parked in front of a “No Parking” sign in our small town, “Well, it doesn’t say positively.”

Remember Brian Weber, excluded from a training program because of his race, and this history of what Title VII “requires” every time you hear the president speak as he did in his speech to the joint session of Congress last week:

Here are the details that every American needs to know about this plan. First, if you are among the hundreds of millions of Americans who already have health insurance through your job, or Medicare, or Medicaid, or the VA, nothing in this plan will require you or your employer to change the coverage or the doctor you have. (Applause.) Let me repeat this: Nothing in our plan requires you to change what you have.

John Rosenberg blogs at Discriminations.
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